Kali Saran Vs. Bhagwan Singh & Anr.
EmailAppeal: Civil Appeal No.2871 of 1985
Petitioner: Kali Saran
Respondent: Bhagwan Singh & Anr.
Apeal: Civil Appeal No.2871 of 1985
Judges: S.P. BHARUCHA & M.K. MUKHERJEE, JJ.
Date of Judgment: Feb 18, 1994
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
O.21, R.100 – Alleged dispossession – Plea, that rent note executed by the appellant was obtained by fraud, raised for the first time -Nor any case made out in the application or in his deposition before the Senior Sub-Judge – Appeal dismissed.
JUDGEMENT:
M.K. MUKHERJEE, J. :
1. This appeal by special leave is directed against the judgment and order dated July 16, 1984 passed by the High Court of Punjab & Haryana in a second appeal. Facts relevant for disposal of this appeal are as under.
2. One Inder Singh (since deceased) obtained an ex parte order from the Rent Controller for eviction of one Natha Singh, whom he claimed to be a tenant under him, from a factory situated at Gill Road, Ludhiana and in execution thereof took possession of the premises. Thereafter on September 28, 1973, the appellant herein filed an application seeking an order under Order XXI Rule 100 of the Code of Civil Procedure (‘Code’ for short) alleging that he had been illegally dispossessed in execution of the order for eviction made against Natha Singh and praying for restoration of his possession. He contended that Inder Singh, Bhagwan Singh and Rattan Singh, who were the members of a joint Hindu family and were coparceners, were owners of the factory building in question. Bhagwan Singh, as one of the members of the said joint Hindu family, let out the factory building to him (the appellant) on behalf of the joint Hindu family on a monthly rent of Rs.200/- on July 10, 1958. Since then, the appellant contended, he was in occupation of the disputed premises as a tenant inducted by Bhagwan Singh on behalf of the joint Hindu family and he had been paying rent regularly to Bhagwan Singh who had been issuing receipts. He further contended that taking advantage of his absence Inder Singh, in conspiracy with Natha Singh, obtained possession of the factory building in execution of the order for eviction by breaking open the lock. According to the appellant he was in possession of the disputed premises in his own right and, therefore, he could not be dispossessed therefrom in the manner it was done. He asserted that he was not occupying the premises on behalf of Natha Singh.
3. In opposing the application Inder Singh and Natha Singh pleaded that the disputed factory building had since been razed to the ground and as such the application seeking order under Order XXI Rule 100 of the Code was not maintainable. They also denied that the appellant was in possession of the disputed premises in his own right. According to them Bhagwan Singh had no right whatsoever to induct the appellant into the premises in dispute, particularly, in view of the fact that it was a self acquired property of Inder Singh. They further averred that the relationship between Inder Singh and Bhagwan Singh was strained and the appellant in connivance with Bhagwan Singh had filed the application. Lastly, they contended that the possession of the premises had been taken rightfully in execution of a decree passed against Natha Singh.
4. On consideration of the evidence and other materials brought on record the Senior Sub Judge, Ludhiana held that Inder Singh, Bhagwan Singh and Rattan Singh were members of a joint Hindu family and that the disputed factory belonged to the family. The Court next found that Bhagwan Singh had no authority to let out the premises to the appellant and that Bhagwan Singh did not let out the premises to him. The Judge lastly found that the appellant was holding the property on behalf of Natha Singh as his tenant and not in his own right. On such findings the Senior Sub-Judge dismissed the application filed by the appellant.
5. Aggrieved thereby the appellant filed an appeal which was heard and allowed by the Additional District Judge, Ludhiana. The first Appellate Court held that the appellant was a tenant under Bhagwan Singh, and not under Natha Singh and consequently he could not be evicted on the basis of a decree passed against Natha Singh.
6. Against the judgment and order of the first Appellate Court, Bhagwan Singh preferred a second appeal in the High Court. The High Court set aside the judgment and order of the first Appellate Court and restored those of the Senior Sub Judge, Ludhiana on the ground that Bhagwan Singh was not competent to let out the disputed premises and that in absence of any evidence on record it could not be said that the appellant was occupying the premises under Bhagwan Singh. On the contrary, the High Court observed, the rent note executed by the appellant in favour of Natha Singh clearly proved that he was occupying the premises as a sub-tenant under Natha Singh against whom the ejectment order was obtained by Inder Singh. Hence this appeal.
7. It was submitted on behalf of the appellant that the High Court ought to have held that the rent note executed by the appellant was obtained by fraud, undue influence and coercion and as such no reliance could be placed thereupon. This contention of the appellant is to be stated only to be rejected having regard to the fact that no such case was made out by the appellant, either in his application seeking order under Order XXI Rule 100 of the Code or in his deposition before the Senior Sub Judge, Ludhiana.
8. As no other point was raised in support of the appeal and as all the findings recorded by the High Court are of facts, we do not find any merit in this appeal. It is accordingly dismissed. However, there will be no order as to costs.
1. This appeal by special leave is directed against the judgment and order dated July 16, 1984 passed by the High Court of Punjab & Haryana in a second appeal. Facts relevant for disposal of this appeal are as under.
2. One Inder Singh (since deceased) obtained an ex parte order from the Rent Controller for eviction of one Natha Singh, whom he claimed to be a tenant under him, from a factory situated at Gill Road, Ludhiana and in execution thereof took possession of the premises. Thereafter on September 28, 1973, the appellant herein filed an application seeking an order under Order XXI Rule 100 of the Code of Civil Procedure (‘Code’ for short) alleging that he had been illegally dispossessed in execution of the order for eviction made against Natha Singh and praying for restoration of his possession. He contended that Inder Singh, Bhagwan Singh and Rattan Singh, who were the members of a joint Hindu family and were coparceners, were owners of the factory building in question. Bhagwan Singh, as one of the members of the said joint Hindu family, let out the factory building to him (the appellant) on behalf of the joint Hindu family on a monthly rent of Rs.200/- on July 10, 1958. Since then, the appellant contended, he was in occupation of the disputed premises as a tenant inducted by Bhagwan Singh on behalf of the joint Hindu family and he had been paying rent regularly to Bhagwan Singh who had been issuing receipts. He further contended that taking advantage of his absence Inder Singh, in conspiracy with Natha Singh, obtained possession of the factory building in execution of the order for eviction by breaking open the lock. According to the appellant he was in possession of the disputed premises in his own right and, therefore, he could not be dispossessed therefrom in the manner it was done. He asserted that he was not occupying the premises on behalf of Natha Singh.
3. In opposing the application Inder Singh and Natha Singh pleaded that the disputed factory building had since been razed to the ground and as such the application seeking order under Order XXI Rule 100 of the Code was not maintainable. They also denied that the appellant was in possession of the disputed premises in his own right. According to them Bhagwan Singh had no right whatsoever to induct the appellant into the premises in dispute, particularly, in view of the fact that it was a self acquired property of Inder Singh. They further averred that the relationship between Inder Singh and Bhagwan Singh was strained and the appellant in connivance with Bhagwan Singh had filed the application. Lastly, they contended that the possession of the premises had been taken rightfully in execution of a decree passed against Natha Singh.
4. On consideration of the evidence and other materials brought on record the Senior Sub Judge, Ludhiana held that Inder Singh, Bhagwan Singh and Rattan Singh were members of a joint Hindu family and that the disputed factory belonged to the family. The Court next found that Bhagwan Singh had no authority to let out the premises to the appellant and that Bhagwan Singh did not let out the premises to him. The Judge lastly found that the appellant was holding the property on behalf of Natha Singh as his tenant and not in his own right. On such findings the Senior Sub-Judge dismissed the application filed by the appellant.
5. Aggrieved thereby the appellant filed an appeal which was heard and allowed by the Additional District Judge, Ludhiana. The first Appellate Court held that the appellant was a tenant under Bhagwan Singh, and not under Natha Singh and consequently he could not be evicted on the basis of a decree passed against Natha Singh.
6. Against the judgment and order of the first Appellate Court, Bhagwan Singh preferred a second appeal in the High Court. The High Court set aside the judgment and order of the first Appellate Court and restored those of the Senior Sub Judge, Ludhiana on the ground that Bhagwan Singh was not competent to let out the disputed premises and that in absence of any evidence on record it could not be said that the appellant was occupying the premises under Bhagwan Singh. On the contrary, the High Court observed, the rent note executed by the appellant in favour of Natha Singh clearly proved that he was occupying the premises as a sub-tenant under Natha Singh against whom the ejectment order was obtained by Inder Singh. Hence this appeal.
7. It was submitted on behalf of the appellant that the High Court ought to have held that the rent note executed by the appellant was obtained by fraud, undue influence and coercion and as such no reliance could be placed thereupon. This contention of the appellant is to be stated only to be rejected having regard to the fact that no such case was made out by the appellant, either in his application seeking order under Order XXI Rule 100 of the Code or in his deposition before the Senior Sub Judge, Ludhiana.
8. As no other point was raised in support of the appeal and as all the findings recorded by the High Court are of facts, we do not find any merit in this appeal. It is accordingly dismissed. However, there will be no order as to costs.
