ISHWAR CHAND Vs. SURESH KUMAR

JUDGEMENT

(1.) Briefly stated, facts of the case are that plaintiffs Suresh Kumar, Manoj Kumar and Ranbir Singh alias Ran Singh, all sons of Harpal Singh son of Anant Ram, residents of Ladwa Hanori Road, Tehsil Thanesar, District Kurukshetra had brought a suit against defendants Sushil Kumar son of Jai Singh and Ishwar Chand son of Nathi Ram seeking possession by ejectment and for recovery of arrears of Rs. 10,500/- with interest @ 18% per annum. As per the case of the plaintiffs, vide rent note dated 14.1.1992, they had put defendant No. 1 Sushil Kumar in possession of shop No. 858, Ward No. 8 within municipal limits of Ladwa, District Kurukshetra as tenant at monthly rent of Rs. 1,000/- for the period 14.1.1992 to 13.1.1994, thereafter the rent was enhanced to Rs. 1,500/- per month; the rainwater of adjoining shop No. 858A of the plaintiffs flow through the roof of the shop No. 858 owned by the plaintiffs and then falls on the road at Point B as shown in the site plan attached with the plaint; the shop is newly constructed and the site plan was sanctioned vide order No. 85 dated 4.5.1989 issued by Municipal Committee, Ladwa and thereafter the construction of the shop was raised, therefore provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable; the plaintiffs are recorded as owners of the suit property, whereas defendant No. 1 is recorded as tenant in the house tax register; that defendant No. 1 had sublet the shop to defendant No. 2 without the consent of the plaintiffs; defendant No. 1 had not paid rent and mesne profits of the shop since 1.1.1997 to 31.7.1997, which comes to Rs. 10,500/-; the plaintiffs are entitled to recover the said amount with interest @ 18% per annum from defendant No. 1; they had served a legal notice under Section 106 of the Transfer of Property Act upon the defendants, which was duly received by them; defendant No. 2 sent reply to the notice claiming himself to be owner of the suit property alleging that he had purchased it vide sale deed No. 727/1 dated 12.9.1995. According to the plaintiffs, such sale deed set up by defendant No. 2 is a forged document and does not relate to suit property, as such the same is ineffective qua rights of the plaintiffs; the alleged vendor of defendant No. 2 was neither owner nor in possession of the suit property, therefore he was not competent to alienate the same; that since defendant No. 2 has become hostile, therefore the possession of defendant No. 2 over the suit property is illegal, unauthorized and that of a trespasser. The plaintiffs requested the defendants to admit their claim and hand over the possession of shop but they refused. As such, they were constrained to file the suit.

(2.) On being put to notice, both the defendants appeared and filed written statements. In the written statement submitted by defendant No. 1, he had taken up various legal objections with regard to locus standi of the plaintiffs to file the suit; its maintainability contending that no cause of action arose to the plaintiffs to bring the suit and they were estopped by their own act and conduct from filing the suit; furthermore the suit was not properly valued for the purpose of Court fees etc. On merits, such defendant contended that he had left the shop after February, 1995 and thereafter has no concern therewith, therefore he is not liable to pay the rent; that it is defendant No. 2, who is in possession of the shop alone since February 1995, who was put in possession of the shop by the father of the plaintiffs Harpal Singh. In the end such defendant prayed for dismissal of the suit.

(3.) In the written statement filed by defendant No. 2, he has also raked up various legal objections contending that the suit had been filed by the plaintiffs in collusion with defendant No. 1. On merits, the answering defendant contended that he is owner in possession of the shop No. 857A and the plaintiffs as well as defendant No. 1 have no concern therewith; that the rent note, if any is fake and fabricated document, which has been created to defeat the lawful rights of the answering defendant; that defendant No. 1 is the son of wife's sister of Harpal Singh, father of the plaintiffs and is first cousin of the plaintiffs; that the shop owned by him is 25 feet x 10 feet and the boundaries given by the plaintiffs are wrong; that the site plan attached with the plaint is not as per the existing position of the spot; that the plaintiffs have no concern with the shop owned by defendants No. 1 and 2; that the shop No. 858 is in possession of co-operative society; that the shop in possession of defendant is bearing No. 857A; the defendant No. 2 had got the site plan sanctioned from the Municipal Committee, Ladwa and he is owner of the same by means of registered sale deed dated 12.10.1995; that when the plaintiffs are neither owners nor in possession of the shop No. 857A, the question of paying any rent to them did not arise and suit was not maintainable; though the plaintiff had served a notice but it was duly replied. According to such defendant, his vendor got the suit property by way of a civil Court decree passed in their favour by the Court of learned Sub Judge Ist Class and demarcation of the said plot was conducted by the revenue officer on 20.12.1992 on an application of the father of plaintiffs namely Harpal Singh. Refuting the remaining assertions, such defendant prayed for dismissal of the suit.