Darshan Singh and Others vs Moti Ram and Another

N.K. Kapoor, J.—This is plaintiff''s appeal against the judgment and decree of the Courts below by which their suit for recovery of possession has been dismissed.

The plaintiffs filed suit for recovery of possession from Moti Ram, defendant No. 1 of land measuring 2 Marias out of land measuring 17 Marias comprised in Khasra No. 134 after removal of superstructure and Malta thereof, situated in village Darapur, alleging that they were owners of the suit land and that Moti Ram, defendant No. 1 was in illegal possession thereof. According to the plaintiffs, Moti Ram has set up illegal construction over the site in dispute in which he runs Halwai shop. They pleaded that remaining land of Khasra No. 134 is in possession of Karam Singh, defendant No. 2 who has absolutely no right or interest in the suit land and was not authorised to lease out the land to defendant No. 1.

Moti Ram, defendant. No. 1 contested the suit and denied the ownership of the plaintiffs for want of knowledge. He also denied that he was in illegal possession over the suit land. Rather, he pleaded that Karam Singh, defendant No. 2, being attorney of Pritam Singh, who was the original owner of the land in dispute, leased out the site in dispute to him on a monthly rent of Rs. 10/- and that he built shops over the same in accordance with the terms of tenancy. Moti Ram further pleaded that his right in the site in dispute was not affected even if Pritam Singh had transferred the suit property to the plaintiffs. Objections regarding proper valuation and maintainability of the suit in the present form were also taken. It was also pleaded that the suit was collusive and the plaintiff were estopped from filing the suit by their act and conduct.

On the pleadings of the parties, the trial Court framed the following issues :-

Whether the plaintiffs are the owners of the suit land ? OPP.

Whether the suit is properly valued for the purposes of Court fee and jurisdiction ? OPP

Whether the suit in the present form does not lie ? OPD

Whether defendant No. 1 is a tenant under defendant No.

If not to what effect ? OPD

Whether the suit is collusive and the plaintiffs estopped from filing the present suit by their act and conduct ? OPD

Whether Karam Singh defendant No. 2 was Mukhtiar-i-am of Pritam Singh deceased ? OPD.

Relief"

The trial Court decided issues Nos. 1, 2 and 3 in favour of the plaintiffs. Issue No. 5 was not pressed in the trial Court and, therefore no finding was returned on this issue. Issues Nos. 4 and 6 were decided against the plaintiffs and in favour of the defendants. Resultantly, suit of the plaintiffs was dismissed.

On appeal by the plaintiffs, the matter was appraised by the lower appellate Court in its entirety The learned Additional District Judge affirmed the findings of the trial Court under all the issues and dismissed the appeal. Hence this appeal by the plaintiffs appellants.

7 I have heard the learned counsel for the parties and have used the evidence, oral and documentary, led in the ease.

8 The appellants main objection to the impugned judgments and decrees is that the Courts below erred in law in relying upon the lease deed Exhibit D.W. 2/A executed by Moti Ram-defendant No. 1 in favour of Karam Singh as the latter had no authority to lease out the property. Merely that subsequently Pritam Singh appointed Karam Singh as his general power of attorney vide Exhibit D.W.4/A dated 24th August, 1963, the same cannot be constructed as amounting to rectification of the act already done by Karam Singh. In short, the submissions that Karam Singh had no power to act on behalf of Pritam Singh on 25th April, 1959, when Exhibit D.W. 2/A, was executed and this way possession of Moti Ram defendant over the suit land was without any right.

The argument, though attractive, is in fact without any substance. Certain facts which have come on record amply prove the falsity of the proposition now being canvassed by the appellants. Admittedly, Pritam Singh was owner of the suit land which was leased out to Moti Ram-defendant on a monthly rent of Rs. 10/- for a period often years vide lease deed Exhibit D.W. 2/A. As per terms of Exhibit D W. 2/A Moti Ram was permitted to raise construction upon the vacant land leased out to him at his own expense and thereafter carry on his business. There is ample evidence on record that pursuant to the execution of the lease deed Exhibit D.W. 2/A construction upon the vacant land was raised by Moti Ram and he, in fact, had been carrying on his business there. It is so happened that subsequently, with an intent to seek his eviction from the property in dispute, Karam Singh filed eviction applications at different times which were dimissed by the Rent Controller and appeals arising therefrom were also dismissd by the Appellate Authority. Copies of the orders of the Appellate Authority in this regard are Exhibits D.X/3, D.X/1 and D.X/2. The present appellants who have succeeded to the estate of the erstwhile owner Pritam Singh are bound by the lease deed Exhibit D.W. 2/A. Moti Ram-defendant came into possession of the property in dispute in pursuance of the lease deed and on the expiry of the period of lease his status is that of a statutory tenant. Statutory tenants Possession in view of the decision of the Supreme Court in Gian Devi Anand Vs. Jeevan Kumar and Others, , is fully protected; who can be evicted for violating the provisions of the Rent Act only.

In this view of the matter I find no merit in this appeal and hereby dismiss the same but without any order as to costs.