GAJA NAND Vs. SHIV LAL

JUDGEMENT

(1.) THIS is plaintiff's appeal against the judgment and decree of the appellate Court by which their suit has been dismissed by the first appellate Court which was decreed by the trial Court.

(2.) THE plaintiff-appellants filed a suit for the possession of shop on the averments that Piare Lal defendant No. 2 was the owner of the shop of dispute who vide agreement dated 27.12.1962 Exhibit PW-6B agreed to sell his shop to the plaintiffs. The sale deed was to be executed upto April, 1963. It was also agreed between the parties that in case the owner Piare Lal could deliver actual possession of the shop, the plaintiffs were to pay Rs. 3000/- in all and in case has to deliver only symbolical possession the plaintiffs were to pay Rs. 2400/- in all. Since Piare Lal did not execute the sale deed a suit was filed in the first instance against the defendants seeking a decree for permanent injunction restraining Piare Lal from alienating the shop in dispute in favour of Shiv Lal respondent No. 1. Consequently, the aforesaid owner Piare Lal was restrained from alienating the shop in favour of Shiv Lal respondent No. 1. Later on, a suit for specific performance was filed which was decreed. It was further averred that Piare Lal inducted Shiv Lal respondent No. 1 as a tenant. The suit for specific performance was ultimately decreed and a decree for symbolical possession only was passed in favour of the plaintiffs on payment of Rs. 2400/- in all. The present suit for possession was filed of the specific averments that Shiv Lal respondent No. 1 was inducted into the shop as a tenant after the agreement of sale was executed by Piare Lal in favour of the plaintiffs.

(3.) HAVING gone through the findings recorded by the Courts below and after perusing the record, this Court is of the considered opinion that the suit of the plaintiffs for possession of the shop in dispute has rightly been dismissed by the appellate Court. Without going into the question whether Piare Lal had legal right or not to induct Shiv Lal as tenant after the execution of the agreement of sale, the finding of tenancy prior to the execution of the agreement of sale is certainly based upon trustworthy evidence brought on the record of the case. The plea of the plaintiffs that it was Budh Ram who was in occupation of the shop in dispute and that he got electric connection does not stand substantiated because Budh Ram produced receipts of rent upto June 1961 only whereas agreement of sale took place on 27.12.1962. If Budh Ram had remained in possession of the shop in dispute after June, 1961, he would have produced the receipts for the period beyond 1961. On the other hand, the receipt Exhibit P-31 brought on the record of the case by Shiv Lal respondent No. 1 shows the payment of rent from 1.11.1962 to 31.10.1963. The signatures of Piare Lal on this receipt could not be denied. The necessary terms and conditions of the agreement of sale that Piare Lal would be entitled to Rs. 3000/- if he is able to give physical possession of the shop in dispute and he would be entitled to Rs. 2400/- only if he is unable to give physical possession is also a pointer to the fact that there was some problem in giving possession of the shop to the vendees. Again, the plaintiffs' claim to symbolical possession only on payment of Rs. 2400/- is another factor which cannot be lost sight of by the Courts below. The plaintiffs could very well claim a decree for possession on payment of Rs. 3000/- which was not done, particularly when Shiv Lal was party to the suit for specific performance. In fact, the claim of the plaintiffs to physical possession was ripe at the time when the suit for specific performance was filed and that too on payment of Rs. 3000/- to Piare Lal defendant. It appears that the plaintiffs very well knew that Shiv Lal defendant No. 1 is a tenant in the shop and for this reason alone they thought of enforcing their right of specific performance on payment of Rs. 2400/- only and later on thought of taking a chance of claiming a decree for possession against Shiv Lal tenant by describing him as a trespasser and without having a recourse to the provisions of Haryana Urban Rent Restriction Act. Since Lal defendant No. 1 has been found to be a tenant on the premises by the appellate Court on the date of agreement of sale and which finding is based upon good evidence and which finding this Court is inclined to endorse, Shiv Lal defendant No. 1 becomes a tenant of the plaintiffs and he can only be evicted on a ground which is available to a landlord under the provision of Haryana Urban Rent Restriction Act.