Shiv Kumar vs Rakesh Kumar and Another

Sabina, J.—Plaintiffs-Rakesh Kumar and Smt. Meenu Sanghi had filed a suit for possession of the shop. Additional Civil Judge (Senior Division), Narnaul vide judgment and decree dated 16.2.2002 decreed the suit of the plaintiffs. Aggrieved by the same, defendant preferred an appeal and the same was dismissed by Additional District Judge, Narnaul vide judgment and decree dated 19.9.2007. Hence, the present appeal by the defendant.

The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment read as under:

In brief, the case of the plaintiff is that they are owners of the shop in dispute by registered sale-deed dated 1.6.1993 executed by Satyapal Yadav in their favour. Said Satyapal Yadav had purchased the shop in dispute from Raghbir Singh vide registered sale-deed dated 11.1.1993 and supplementary sale-deed dated 31.5.1993. Raghbir Singh previous owner of the shop in dispute on 2.8.1983 moved an application in Municipal Committee Narnaul for sanction of site-plan for construction of the shop in dispute but his site-plan was not sanctioned in stipulated period of two months and the Municipal Committee, Narnaul, also did not intimate him of sanction of site-plan within two months. Therefore, he raised construction of the shop in dispute with another shop and Gallery and the construction was completed in the month of October, 1983. Later the Municipal Committee Narnaul sanctioned the site-plan vide resolution No. 101 dated 1.12.1983. Since the period of ten years has not expired from the date of completion of construction of the shop in dispute, so provisions of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred as the Rent Act) are not applicable.

The case of the plaintiffs further is that the defendant took the shop in dispute on rent from Raghbir Singh vide rent note dated 11.7.1988 for a period of three months only at a rental rate of Rs. 500/- per month besides house-tax. The period of tenancy has already been expired but the defendant continued making payment of the rent to Raghbir Singh and thereafter to Satyapal Singh previous owners of the shop in dispute. After purchase of the shop in dispute, the plaintiffs served a registered notice dated 27.7.1993 upon the defendant informing him that they have purchased the shop in dispute and the period of tenancy has already expired and as an abundant caution they are serving him with a notice u/s 106 of the Transfer of Property Act (hereinafter called the TPA) terminating his tenancy and asked him to vacate the shop in dispute on expiry of 15 days of notice. The plaintiffs sent notice to the defendant through registered post and under postal certificate also. The defendant received the notice sent under postal certificate but managed to sent back the notice through registered post. The plaintiffs on 3.8.1993 again sent a notice u/s 106 of the Transfer of Property Act to defendant through registered post and under postal certificate but he refused to receive the notice sent through registered post and received the notice sent under postal certificate. The defendant has also not paid rent from 1.2.1993 to 31.8.1993 @ 500/- per month along with house-tax. Therefore, they are entitled for arrears of rent and use and occupation charges @ Rs. 1,000/- per month w.e.f. 1.9.1993. The defendant did not vacate the shop in dispute after expiry of the period of fifteen days notice and also did not pay the arrears of rent and damages for use and occupation of the shop in dispute. Hence, necessity arose to file the suit.

The defendant filed written statement while admitting his tenancy over the shop in dispute but asserted that earlier. Sh. Brij Kishore was tenant on the shop in dispute under its previous owners since 1983. The defendant was a business partner with said Brij Kishore and was doing business as an active partner in the shop in dispute since 1983 but later on their partnership was dissolved and he executed a fresh rent note on 11.7.1983 in favour of Raghbir Singh and rent with house-tax of the shop in dispute was agreed between the defendants and Raghbir Singh at at Rs. 562.50 per month. The defendant with Brij Kishore started business in the shop in dispute in the month of August, 1983 after obtaining sale tax number. The Municipal Committee also served a notice dated 22.7.1983 to Raghbir Singh about unauthorized construction raised by him and Raghbir Singh moved an application in Municipal Committee on 29:7.1983 compounding the unauthorized construction. According to defendant, the shop in dispute was completed by Raghbir Singh in June, 1983, therefore, Municipal Committee, Narnaul served a notice upon him regarding unauthorized construction and he deposited compounding fee with the Municipal committee . Since the construction of the shop in dispute was completed in June, 1983, therefore, the suit filed in September, 1993 is not maintainable and the tenancy of the shop in dispute is protracted under the provisions of the Rent Act. It is further asserted that Raghbir Singh submitted site-plan of the shop in dispute with the Municipal Committee for sanction on 2.2.1983 and later on raised construction. He has already paid rent to Raghbir Singh up to December, 1993 along with house-tax. He specifically denied receipt of any notice under postal certificate and also denied receipt of any notice through registered post and his tenancy has not been terminated by any valid notice. All other allegations of the plaint have been denied and prayed for dismissal of the suit.

On the pleadings of the parties, trial court framed the following issues:

(1) ''Whether the plaintiffs landlord had constructed the shop in dispute in the month of Oct. 1983, as such the provisions of Haryana Urban Control of Rent do not apply to the present case, as alleged? OPP

(2) Whether the tenancy has been terminated in respect of the shop in dispute through a valid notice u/s 106 of the Transfer of Property Act? OPP

(3) Whether the defendant has not paid the arrears of rent the period from 1.2.1993 to 31.8.1993 in addition to house tax, as alleged, if so to what effect? OPP

(4) Whether the civil court has no jurisdiction to try the present suit? OPD

(5) Whether the plaintiffs have no locus standi to file the present suit? OPD

(6) Whether the suit is false and frivolous? OPD

(7) Whether the defendant is entitled for special costs, as alleged? OPD

(8) Relief.

After hearing learned Counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Case of the plaintiffs is that they had purchased the shop in dispute vide sale deed 1.6.1993. The shop in dispute had been given on rent to the defendant vide Rent Note dated 11.7.1988 (Ex.P-1). The question that requires consideration is as to whether the suit had been filed within 10 years of the constructions of the shop in dispute. The case of the plaintiffs is that the shop in dispute was constructed in October, 1983 whereas the case of the appellant-defendant is that the shop in dispute was constructed in June, 1983. Reliance was placed in this regard on letter dated 21.6.1983 issued by the Municipal Committee, Narnaul to Raghbir Singh, the original owner regarding some illegal constructions. However, as per Rent Note (Ex.P-1), the the shop in dispute was constructed in October, 1983. Ex.P-1 is duly signed by the appellant-defendant. The appellant had no compelling circumstances to admit at the time of execution of the Rent Note that the shop in dispute was constructed in October, 1983. In these circumstances, courts below rightly did not place reliance on letter dated 21.6.1983 and held that the shop in dispute was constructed in October, 1983. Notice were issued to the appellant/defendant with regard to the termination of his tenancy. Acknowledgment of said notices were also duly proved on record by the plaintiffs. In these circumstances, the suit of the plaintiffs had rightly been decreed by the courts below.

No substantial question of law arises in this appeal.

Accordingly, this appeal is dismissed.