Hardyal Singh vs Hardyal Singh and Others

Dev Darshan Sud, J.—This is the Plaintiff''s appeal against the judgment and decree of two Courts below dismissing his suit praying for a decree of suit for possession of half portion of Stall No. 7, Lakkar Bazar, Shimla and for rendition of accounts.

The Plaintiff instituted the suit out of which this appeal arises pleading that he and Defendant No. 1 are joint tenants in the property in dispute i.e. Stall No. 7, Lakkar Bazar, Shimla, on an annual rent of Rs. 104.60 paise. Defendant No. 2, D.A.V. School was the owner of this property and Defendant No. 3 vide Ex.PW-4/A allotted another Stall to both the Plaintiff and the Defendants, as Stall No. 7 had to be demolished.

On the pleadings of the parties the trial Court settled seven issues. Issue Nos. 1 and 3 were crucial for determination as they dealt with the controversy regarding the entitlement of the Plaintiff for possession of half portion of Stall No. 13, which had been allotted by the Municipal Corporation in lieu of Stall No. 7, and whether Defendant No. 1 was the sole tenant of the suit premises. These were decided against the Plaintiff. In appeal, these findings have been affirmed. On 1.7.2008 two substantial questions of law were taken for consideration of this appeal, which are as follow:

Whether both the courts below were justified in holding Respondent No. 1 to be the sole tenant of the premises in view of the documents Ex.PW-4/A executed by Respondent No. 1 for and on behalf of M/s. Ajit Singh Pargat Singh?

Whether the Appellant could be denied the decree for possession after tenancy of Stall No. 13 allotted in place of stall No. 7 was created in the joint names of M/s Ajit singh Pargat Singh?

This question with respect to Ex.PW-4/A came up for consideration before this Court on 22.9.2008 when it was directed:

Heard in part.

During the course of arguments, learned Counsel appearing for the Appellant has drawn my attention to the grounds of appeal filed before the learned District Judge, more especially grounds No. 3 and 5 which reads:

That from the record it was amply proved that the tenancy with respect to the premises in dispute was in the joint names of Appellant and Respondent No. 1 which fact h ad been admitted by the owner of the premises also. There was ample evidence on record to prove this fact. The receipts and the licence issued in the names of Pargat Singh Ajit Singh and especially the agreement P.W.4/A conclusively proved the case of the Appellant that Respondent No. 1 was not the sole tenant in his own right.

That likewise the findings of ld. lower Court on issue Exhibit PW 4/A conclusively proved the tenancy to be in the name of Ajit Singhgat Singh and the fact that Shop No. 13 in the Newly built complex was allotted in joint names of Ajit Singh Pargat Singh.

He submits that the learned Court below has not given its findings on these two grounds with reference to the agreement Ex.PW-4/A which according to the learned Counsel was vital for the decision of the case.

Substantial question No. 1 as formulated in this appeal also calls upon this Court to adjudicate on the effect of Ex.PW-4/A.

On going through the judgment of the learned Court below, I do not find that the appellate Court has given any finding on these two grounds, namely, grounds No. 3 and 5.

In these circumstances, the following directions are issued:

(i) The learned District Judge shall hear the parties afresh with respect to grounds No. 3 and 5 as extracted hereinabove.

(ii) For this purpose, the parties shall appear before the District Judge, Shimla, on 20th October, 2008. He shall record his findings and shall remit the same to this Court on or before 30th December, 2008. List in the Ist week of January, 2009 after such findings have been received from the Court below. Let the record of this case be sent to the learned District Judge, Shimla.

The findings have since been returned by the learned District Judge. Thereafter CMP No. 391 of 2009 was filed by the Appellant praying for consideration of an additional substantial question of law to the effect that as to whether the first appellate Court was correct in rejecting the application under Order 41 Rule 27 of the CPC preferred by the Appellant herein without hearing the appeal on merits.

Considering the last question first, namely, "Whether the First Appellate Court was right in deciding the application under Order 41 Rule 27 of the CPC without hearing the appeal on merits?", I hold that no illegality has been committed by the learned first appellate Court. The Appellant-Plaintiff has been litigating since the year 1986.

It is undisputed before me that before the trial Court, an application under Order 18 Rule 17-A of the CPC (herein after referred to as the ''Code'') was filed for leading additional evidence, during trial, which application was allowed and PW-2 Shri Ram Asra was recalled at the request of the Plaintiff.

While disposing of the application under Order 41 Rule 27 of the Code of Civil Procedure, the learned appellate Court holds that this application is nothing but a ploy again to reagitate all that which had been allowed by the trial Court in the application under Order 18 Rule 17A on 7.4.1988 and PW-2 Ram Asra was thereafter recalled for further examination on 27.5.1988. In this application, the pleading of the Appellant is that when the evidence of Shri Ram Asra Kalia was being recorded on 14.12.1987, he had brought the record relating to the tenancy of the Plaintiff with respect to stall No. 7, Lakkar Bazar, Shimla, from the year 1980. The Plaintiff states that according to his knowledge record prior to this date was not available. He then proceeds that the record is available from 1970 onwards and therefore, seeks permission to summon this witness again. While filing the application under Order 41 Rule 27, all that the Plaintiff knew at the time of trial of the case, was that the record was available from 1970 onwards and now according to him, record prior to that is also available for which purpose he wanted to summon two witnesses from Arya Samaj Managing Committee, Lakkar Bazar and one Desh Raj. The Plaintiff wants to continue the proceedings ad-infinitum. At the time when witness Ram Asra was re-examined, it was for the Plaintiff to have deferred his examination to have called for another witness/record in case record was not available with this witness. Merely because the Plaintiff has lost before the learned trial Court was not a sufficient ground to have invoked the provisions under Order 41 Rule 27 for leading additional evidence.

Learned Counsel appearing for the Appellant submits that the decision on this application could not have been taken prior to the decision in the appeal but had to be considered alongwith the main appeal. I cannot accept this contention. In Himanshu v. Bishan Dutt and Ors. 2006(1) H.L.J. 118, this Court while dealing with the provisions of Order 41 Rule 27 has held that it is only in cases under Order 41 Rule 27 Clause (b) that the decision on the application has to be contemporaneous with the appeal. Two situations contemplated under Clause (a) and Clause (aa), the application can be filed and decided even before the appeal is disposed of.

From the application which has been filed before the learned trial Court, I find that the Appellant pleads ignorance regarding a particular fact and cannot be covered under Clause (b) of Order 41 Rule 27. Moreover, as I have held, I cannot see any reason to differ with the reasoning of the learned appellate Court rejecting this application when it holds that the Appellant was aware about the facts and was agitating and re-agitating the same thing over and over again. PW-2, Ram Asra, appeared as a witness and then recalled and thereafter some other record was asked for. Litigation cannot be stretched into interminable proceedings. This question is, therefore, decided against the Appellant.

Questions No. 1 and 2:

Questions No. 1 and 2 as framed by this Court are:

(1) Whether both the Courts below were justified in holding Respondent No. 1 to be the sole tenant of the premises in view of the documents Ex.PW-4/A executed by Respondent No. 1 for and on behalf of M/s. Ajit Singh Pargat Singh?

(2) Whether the Appellant could be denied the decree for possession after tenancy of Stall No. 13 allotted in place of Staff No. 7 was created in the joint names of M/s. Ajit Singh Pargat Singh?

The learned District Judge has returned his findings on the two questions referred to above. On the question of execution of agreement Ex.PW-4/A, the learned appellate Court concludes that in the cross-examination of the Plaintiff PW-1 himself there is an admission that there was no partnership business between the Plaintiff and the Defendants. No proof of tenancy or any agreement evidencing his tenancy has been proved on the record of the case. He also could not say anything with respect to the rent receipt issued after 1980 nor could he produce any account books of joint business etc. Coming specifically to the agreement Ex.PW-4/A, the Court holds:

In view of the said evidence on record, it stands fully and firmly established that the Defendant No. 1 was in possession of Stall No. 7 since the year, 1961 continuously on payment of rent and Stall No. 7 was never occupied or possessed by the Plaintiff as a co-sharer with the Defendant No. 1, but the Defendant No. 1 during the year, 1982 started asserting his right over the Stall No. 7 as a tenant qua � share and as per the findings recorded, supra, the entries showing him as tenant with the Defendant No. 1 were got interpolated in the documents and even he applied for the grant of licence in his favour and in the teeth of evidence discussed above, he succeeded in getting the licence in the name of ''M/s Ajit Singh Pargat Singh'' on the basis of interpolated entries in the concerned record. In view of the aforesaid facts, is stands fully and firmly established that the Defendant No. 1 opposed the claim of the Plaintiff till the filing of the suit and, thereafter, it is not understood as to why the Defendant No. 1 opted to execute Agreement, Ex.PW-4/a, creating tenancy in favour of ''M/s Ajit Singh and Pargat Singh'', Lakkar Bazar, Shimla. The suit was filed by the Plaintiff on 5.11.1986. The Defendant No. 1 contested the claim of the Plaintiff. The alleged agreement was executed on 12.11.1991. The Plaintiff got the plaint amended by virtue of plaint dated 10.12.1991 i.e. after some time of the alleged execution of the Agreement, Ex.PW-4/A. In view of the said fact, it does not suit to the senses that the Defendant No. 1 would have opted to execute the Agreement, Ex.PW-4/A, in favour of the Plaintiff also. It is not understood as to why the Plaintiff is not a signatory to the said Agreement. PW-4, Charanjit Singh has testified that as per the Agreement, Ex.PW-4/A, Stall No. 13, New Complex, Municipal Corporation, Lakkar Bazar, Shimla has been allotted in favour of ''M/s Ajit Singh Pargat Singh'' and the same has been signed by Ajit Singh. He has clearly stated that as per the Agreement, Stall No. 13 has been allotted in lieu of Stall No. 7, hence, no question of allotment of Stall No. 13 in his favour could arise at all. In the opinion of this Court, Agreement, Ex.PW-4/A, has not been duly proved to have been executed, as the Plaintiff has not signed the Agreement. He has not shown any authority in favour of the Defendant No. 1 to sign the Agreement, Ex.PW-4/A, on his behalf. PW-4 has stated that the Agreement, Ex.PW-4/A, was filled-in by Sh. Gulab Singh Thakur, Superintendent. The Plaintiff has not opten to examine Gulab Singh Thakur. Had he examined Gulab singh Thakur to prove the Agreement, he would have given lie to the case set-up by the Plaintiff. PW-4. Has clearly stated that the Agreement, Ex.PW-4/A, has neither been filled-in by him, nor the same was filled-in in his presence. He has also admitted that the papers of Agreement had already been handed over and those were filled-in later on. The papers were given by the parties. At that time, he was not posted there. He has admitted that the list of tenants is not available in the file. It appears from the testimony of PW-4 that a list of stall holders of Defendant No. 2 was supplied to the Defendant No. 3 on the basis of which allotments of alternative stalls were made, but the said list has also not been examined as a witness. The official who filled-in the names ''M/s Ajit Singh Pargat Singh'' has also not been examined. He would have the best person to tell at whose instance he has filled-in the Agreement. The Plaintiff wasnot a party to the Agreement, Ex.PW-4/A. In absence of proper proof of execution of the Agreement, Ex.PW-4/A, the Agreement has got no legal value and does not help the case of the Plaintiff.

It was Defendant No. 1, who was in possession of Stall No. 7 since the year, 1961 continuously on payment of rent and Stall No. 7 was never occupied or possessed by the Plaintiff as a co-sharer with Defendant No. 1. It was in 1982 that Plaintiff started asserting his right over the Stall No. 7 as tenant qua half share and the entries showing him as a tenant of Defendant No. 1 were incorporated in the documents. This finding has been arrived at by the learned trial Court after a detailed examination of the factual position proved by evidence on record after remand wherein one of the other findings is also that the Plaintiff could not prove any agreement/licence to run the business in the name and style of ''M/s. Ajit Singh Pargat Singh'' till the year 1981. The evidence need not be discussed in detail here as the findings are comprehensive. I, therefore, find no merit in this appeal which is dismissed, the interpretation of Ex.PW-4/A has been held to be a document which does not entitle the Appellant to any right. The findings returned are against the Appellant.

These findings are arrived at by the learned Court below cannot be disturbed in second appeal. In these circumstances, there is no merit in this appeal which is accordingly dismissed. There shall be no order as to costs.