Rajbir vs Roshan Lal and Others

Mahesh Grover, J.—This Regular Second Appeal is directed against judgments and decrees dated 3.2.2003 and 18.1.2007 passed respectively by the Civil Judge (Junior Division), Chandigarh (hereinafter described as ''the trial Court'') and the Additional District Judge, Chandigarh (referred to hereinafter as ''the First Appellate Court'') whereby the suit and the appeal of the plaintiff-appellant were dismissed. Since it is barred by time, the appellant has moved an application u/s 5 of the Limitation Act, being CM. No. 7527-C of 2008, for condonation of 346 days'' delay in its filing.

A suit for permanent injunction was preferred by the appellant seeking to restrain the defendants-respondents from interfering in his peaceful possession and running of vegetable business from front court yard on the right hand side of Shop No. 38, Grain Market, Sector 26, Chandigarh. It was pleaded that the aforesaid shop was originally owned by Shri Pritam Singh, who has since expired in the year 1999 and the said premises was taken on rent from him at a monthly rent of Rs. 700/- including electric charges in his name by the father of the appellant as he was unemployed at that time. It was further pleaded that the appellant had been paying rent regularly to the said Pritam Singh and after the latter''s death, none of his legal heirs or any other person came to collect the rent. It was averred that the appellant was still ready and willing to pay the arrears of rent to the legal heirs of Pritam Singh. It was further averred that the respondents were also having Shop No. 38 and respondent No. 1 had put his possession over the suit premises by illegally trespassing, whereas he had no right to do so. The appellant also pleaded that respondent No. 1 had started demanding rent from him despite the fact that he had no right to do so.

Upon notice, the respondents appeared and filed their written statement contesting the suit. It was pleaded that respondent No. 1 was tenant in respect of the premises de-scribable as entire Shop-cum-Office No. 38, Grain Market, Sector 26, Chandigarh and that the appellant was never a tenant of Pritam Singh and since he was unauthorisedly occupying the area in question in front of the said shop, an attempt had been made to remove him from the same and the instant suit was filed to frustrate the same.

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

Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

Relief.

After appraisal of the evidence on record, the trial Court concluded that the appellant had no right to occupy on the disputed premises and accordingly, dismissed the suit.

In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal.

Learned Counsel for the appellant contended that the findings of the Courts below are perverse and warrant interference. He submitted that the findings are totally contrary to the evidence on record which has been misread by both the Courts.

I have thoughtfully considered the contention/ submission of the learned Counsel for the appellant and have gone through the impugned judgments.

The appellant has pleaded that he was a tenant of the premises in question at the rate of Rs. 700/- per month under Pritam Singh, who has since expired in the year 1999 and that after the latter''s death, he had offered the rent to Onkar Singh, adopted son of Pritam Singh, who refused to receive the same. Except for the oral testimony, there was no other evidence to show that the appellant was ever a tenant under late Pritam Singh or that he was occupying the disputed premises at all. No evidence of payment of rent has been produced either to Pritam Singh or his adopted son Onkar Singh, as has been alleged by the appellant. The Courts below have noticed that in his deposition, the appellant has accepted that in other collateral proceedings pertaining to this very suit premises, he had admitted that he was carrying business on the road side and not on the ''Thada'' in front of the shop in question. In any eventuality, this is purely a question of fact as to whether the appellant was in possession of the disputed premises or not. The factum of possession has not been established nor the tenancy, which was the basis for entering the possession, was proved. In this view of the matter, the pure finding of fact determined by the Courts below cannot be interfered with.

At this stage, learned Counsel for the appellant contended that the appellant had moved an application for additional evidence which material he wanted to bring on record during the course of proceedings before the First Appellate Court, but that application was not decided at all.

Concerned with the aforesaid contention, I have perused the judgment of the First Appellate Court again and I find that the First Appellate Court has dealt with it in an elaborate manner arid it has discussed the additional evidence which was sought to be produced by the appellant and had rejected his prayer. The contention is, therefore, misleading and deserves to be rejected.

I am, therefore, of the opinion that in the present appeal, only a question of fact has been raised and no substantial question of law has been shown to have arisen for determination by this Court.

Moreover, the appellant has not shown any cogent reason for condonation of inordinate delay in filing the appeal. He has mentioned in his application that the documents were handed over in time to a counsel for filing the appeal, but the name of that counsel has not been mentioned. This averment cannot be believed at its face value.

Consequently, the appeal is dismissed as barred by limitation as well as on merits.