SMT. BIMLA WATI & ORS. Vs. MOHAN LAL

JUDGEMENT

(1.) This judgment shall dispose of two regular second appeals i.e.RSA No.1919 of 2009 and RSA No.2220 of 2009 as on similar facts same substantial questions of law, have been raised before this Court in both these appeals. For convenience sake, the facts are taken from RSA No.1919 of 2009.

(2.) The plaintiff-respondent filed the instant suit for possession alleging that he was the owner in possession of the house in question which he purchased vide registered sale deed dated 23.01.1946 and after the purchase, he made constructions and improvements after obtaining due sanction from the Municipal Committee. Sh.Gian Chand, who was the brother of the plaintiff was residing in the house in question as tenant under him. Since, Gian Chand was the real brother of the plaintiff, no rent note was executed in good faith. He continued in possession till his death on 01.02.1990. The appellants succeeded to the tenancy rights of Gian Chand. An ejectment application was filed against them which was contested. However, the relationship of landlord and tenant was denied by the appellants in the aforesaid ejectment application. Since they had denied the relationship of landlord and tenant in the ejectment application learned Rent Controller, Kharar dismissed the same vide order dated 07.01.1992. And after passing of the aforesaid order they had no right to remain in possession and plaintiff-respondent being the owner of the suit property was entitled to the possession. The plaintiff-respondent also claimed damages/mesne profit from the appellants.Since the defendants/appellants failed to vacate the house in question and put the plaintiff-respondent into possession, the cause of action arose to file the present suit.

(3.) The suit was contested by the appellants raising various preliminary objections. However, on merits it was claimed that Gian Chand was in possession of the house in dispute which was open, hostile, notorious, known to public, without any interruption and after his death, appellants were in possession of the suit property in the same capacity and as such they have become owners of the suit property by way of adverse possession. It was further stated that the plaintiff never came in possession of the suit property. The tenancy can be created either by agreement or contract, but, in the present case, neither there was any agreement nor contract, as such, there was no relationship of landlord and tenant in between the plaintiff and Gian Chand.