Rajinder Kaur @ Rajjo v. Hira Lal Garg

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-4East Punjab Urban Rent Restriction Act, 1949. The lower appellate court has wrongly read a license in favour of the defendant having been conferred by the plaintiff. This assessment by the court below is beyond even the pleadings of the plaintiff. The counsel has further submitted that, in fact, the defendant has gone totally unheard in the matter because of fault of the counsel. Hence, the defendant-appellant should have been granted fair hearing by the court below. The judgment and decree deserve to be set aside.

-5Having heard the counsel for the appellant and having perused the case file this court does not find any substance in the arguments raised by the counsel for the appellant. It is not even in dispute that the categoric assertion of the plaintiff in the suit has been that the defendant was permitted to reside on the first floor of the house for a limited period till she found an alternate accommodation, as was requested by her. This assertion has not even been rebutted by the defendant by filing any written statement. Not only that, to prove this assertion the plaintiff have examined independent witnesses as well, besides appearing himself as witness before the court. Even the evidence led by the plaintiff in that regard has gone totally unrebutted. The defendant has not led any evidence, whatsoever, in the suit.

Therefore, there is no illegality in the findings recorded by the trial court, whereby; the possession of the defendant has been taken to be as a licensee. Although the counsel for the appellant-defendant has submitted that defendant was put in possession of the house in question by the plaintiff as a tenant, however there is nothing on record even to remotely suggest the said aspect. It is obvious from the plaint itself that the plaintiff has not even mentioned the tenancy; in any form. The categoric stand of the plaintiff had been that it was a temporary arrangement under which the defendant was permitted to reside in the house for some time. The defendant has not even pleaded; or proved anywhere; that the possession taken by her was by way of tenancy.

In absence of even any pleading regarding tenancy, the issue of tenancy cannot be thrusted upon the plaintiff. He was required to prove the case as pleaded by him.

-6him. The bald assertion of the defendant, qua she being a tenant, cannot supersede the pleadings and proof brought on record by the plaintiff. The only reason which the civil court seems to be swayed by is that there was mention of 6,000/- per month to be paid by the defendant. However, mere payment of money would not necessarily create a tenancy between the owner and the person who possess the property. There are several recognized means of creating some rights in property in lieu of monetary consideration. Every type of possession in lieu of money, cannot be held to be tenancy per se. Even the provision contained in Order 2 Rule 4 CPC envisages that along with a suit for possession the means profits can very well be claimed by the plaintiff.

If any money is stated to have been claimed by the plaintiff at the rate of 6,000/- per month, that was only in lieu of usage and enjoyment of the property by the defendant, which as per the record, was for a limited period, as assured by the defendant herself at the time of entering into the property. Therefore, the applicability of the Rent Act is not invited in the present case. It is a pure and simple issue of recovery of possession with mesne profits by filing suit for possession by paying the appropriate court fees thereon. No fault could be found in the course of action adopted by the plaintiff. Suit filed by him is very much maintainable. Therefore, the court below has rightly reversed the judgment and decree passed by the trial court.

In view of the above, finding no merit in the present appeal, the same is dismissed.