Gurmeet Singh v. Lala Munshi Ram Charitable Trust

-1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 4003 of 2016 (O&M) Date of Decision : 29.11.2016 Gurmeet Singh ....Appellant

Versus

Lala Munshi Ram Charitable Trust (Regd.), Fazilka ....Respondent

CORAM:

HON'BLE MR. JUSTICE SURINDER GUPTA

Present:

Mr. Ashish Gupta, Advocate for the appellant.

Surinder Gupta, J.

This is second appeal by plaintiff-Gurmeet Singh against concurrent judgments and decree of Courts below dismissing his suit seeking the relief of permanent injunction to restrain the defendant from dispossessing him from residential house comprising of two kothas, verandah and stairs shown as red in site plan attached with the plaint situated in Jangilan street, Fazilka, District Ferozepur. 2.

Case of plaintiff, in brief, is that he is tenant under the defendant-trust for the last 30 years and paying rent regularly. He is residing in disputed house with his family members. The defendant obtained order of ejectment of his brother Karnail Singh from the demised premises under the provisions of East Punjab Urban Rent Restriction Act, 1949 (later referred to as 'the Rent Act'). In the Municipal record separate tenancy of plaintiff and his brothers Gurcharan Singh and Karnail Singh is recorded but the defendant-trust had been issuing receipt in the name of Karnail Singh only. Plaintiff and his brothers Karnail Singh and Gurcharan Singh were living in separate portion of property no. 3839-A. 3.

The defendant contested claim of plaintiff inter alia pleading

-2that suit property was let out to Karnail Singh, brother of plaintiff. A petition bearing no. 10-2 of 13.06.2002, seeking ejectment of Karnail Singh from the demised premises on the ground that he had ceased to occupy the same, was filed in which ejectment order was passed by the Rent Controller, Fazilka on 07.09.2009, which was affirmed in appeal by the Appellate Authority, Ferozepur vide judgment dated 05.10.2010. Plaintiff had appeared as witness in that proceeding for his brother and deposed that he alongwith his brother Karnail Singh is in possession of demised premises and his brother Karnail Singh has never parted with possession or shifted elsewhere. He never claimed himself to be the tenant in the demised premises or sought himself to be impleaded as party.

In the execution proceedings against Karnail Singh, plaintiff filed objections containing the same pleas as have been taken in the suit. Earlier in the year 1998, defendant-trust filed petition under Section 13 of the Rent Act impleading Karnail Singh and plaintiff as party wherein both filed joint written statement admitting Karnail Singh as tenant. It was further alleged in that proceeding that Karnail Singh and plaintiff are brothers and the family is controlled and administered by Karnail Singh. While appearing as RW-2, plaintiff had stated in his cross-examination that Karnail Singh had been making payment of rent to the defendant against receipt. Statement of plaintiff was recorded on 03.04.2006 and till filing of this suit in May, 2011, he took no steps to establish his right in disputed property as tenant.

This suit has been filed at the instance and expenses of Karnail Singh and plaintiff is just a proxy for him.

4.

While dismissing the suit, learned Additional Civil Judge (Senior Division), Fazilka observed that plaintiff has failed to prove his

-3tenancy over the suit property and this suit has been filed by plaintiff for the purpose of creating hindrance in execution of ejectment order against his brother Karnail Singh. On appeal, Ist Appellate Court affirmed the finding of the lower Court.

5.

It appears that plaintiff has taken half hearted plea that he is tenant in the demised premises but at the same time he admitted that receipt of rent was being issued in favour of his brother Karnail Singh. In the ejectment petition plaintiff has been alleging that it is Karnail Singh, who is in possession of suit property and he never claimed himself to be the tenant. 6.

Learned counsel for the appellant has argued that ejectment order against Karnail Singh pertains to one room while the defendant is seeking to execute the same regarding two rooms in possession of plaintiffappellant. He has not pressed the plea that plaintiff is tenant in the demised premises in his independent capacity.

7.

Submissions of learned counsel for the appellant have no merits; firstly, because there is no plea in the plaint that ejectment order pertains to one room and is being executed to dispossess the plaintiff from two rooms in his possession. Secondly, this objection is available to Karnail Singh against whom the ejectment order has been passed and not to plaintiff-appellant, who has filed this suit in his independent capacity and not for or on behalf of Karnail Singh. Thirdly, plaintiff-appellant is having no independent status of his possession regarding the suit property. Fourthly, it is for the executing Court to look into this aspect as to how and with regard to which property ejectment order pertains and is to be executed.

8.

Both the Courts on the basis of evidence have rightly drawn

-4conclusion that plaintiff has filed this suit as proxy for Karnail Singh and has no independent status to continue to be in possession of suit property. 9.

On perusal of judgments and decree passed by Courts below and lower Court record, I find no legal or factual infirmity in concurrent findings of facts recorded by Courts below calling for any interference in this appeal. No substantial question of law, requiring determination arises in this appeal, which has no merit.

Dismissed.

November 29, 2016 ( SURINDER GUPTA) jk JUDGE Whether speaking/Reasoned Yes/No Whether Reportable Yes/No