Dharam Pal Singh vs Major Gandhrab Singh Rana

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 30.10.2008 rendered by the learned Additional District Judge, Solan in Civil Appeal No. 43-S/13 of 2008.

Material facts necessary for the adjudication of this Regular Second Appeal are that Appellant-Plaintiff (hereinafter referred to as ''Plaintiff'' for convenience sake) instituted a suit against the Respondent-Defendant (hereinafter referred to as ''Defendant'' for convenience Whether reporters of the local papers may be allowed to see the judgment? Yes sake). According to Plaintiff, he is tenant over the demised premises as detailed in the plaint and the Defendant is the owner, who has rented out the premises to the Plaintiff as per agreement dated 29.6.1996 @ ` 1100/- per month. In March 2003, fresh agreement was executed and rent was increased to ` 1805/-. According to him, the contents of this agreement were not read over to him and his signatures were obtained by fraud. The Defendant was threatening him to vacate the premises.

The suit was resisted by the Defendant. According to him, the Plaintiff has not made payment as per agreement. The payment made by the Plaintiff was irregular. According to him, the tenancy was created for limited period and it was renewed with the consent of both the parties. Last agreement was executed between the parties in March, 2003. He has preferred counter-claim by stating that vide agreement dated 31.3.2003 Ex. PW-3/D, the Defendant has only let out two bed rooms, kitchen, lobby, lavatory and bath room, except drawing room. The Defendant has sought the decree for injunction restraining the Plaintiff from interfering in the possession of the counter-claimant over the drawing room.

Written statement was filed by the Plaintiff to the counter-claim filed by the Defendants. The contents of the counter claim were denied. Issues were framed by the trial court on 2.8.2005. Suit of the Plaintiff was partly decreed and the Defendant was restrained by way of permanent prohibitory injunction from dispossessing the Plaintiff forcibly or illegally from the tenanted premises comprising of two bed rooms, kitchen, lobby, lavatory of House No. 325, Sector 4, Parwanoo, Tehsil Kasauli, District Solan. The counter claim of the Defendant was dismissed. Plaintiff preferred an appeal before the District Judge. He dismissed the same on 30.10.2008. Hence, the present Regular Second Appeal. It was admitted on the following substantial question of law:

Whether the courts below have committed illegality by considering Ex.DW-1/B which has not been proved in accordance with law?

Mr. Anup Rattan has strenuously argued that both the courts below have mis-construed Ex.DW-1/B dated 31.3.2003.

Mr. O.C. Sharma has argued that both the courts below have correctly appreciated Ex.DW-1/B. According to him, drawing room was never rented out to the Plaintiff.

I have heard the learned Counsel for the parties and have perused the records carefully.

Plaintiff has appeared as PW-1. He has tendered his evidence by way of affidavit Ex.PW-1/A. According to him, the agreement dated 31.3.2003 Ex. DW-1/B was the outcome of fraud. He also stated that the clause regarding repairs to be done by the Plaintiff and exclusion of drawing room has been wrongly inserted and his signatures have been obtained by way of fraud. According to him, the tenancy commenced in the year 1996 and every year fresh agreement was to be executed. According to him, agreement dated 31.3.2003 bears his signatures, which were taken on blank papers. He has also admitted that the Defendant had already filed eviction petition against him, copy of which is Ex.D-1 dated 11.2.2005.

Defendant has appeared as DW-1. He has also tendered his evidence by way of affidavit Ex.DW-1/A. He has proved on record agreement Ex.DW-1/B dated 31.3.2003. He has not led any evidence as far as his counter claim is concerned. He has also stated that the agreement was executed between the parties on 31.3.2003 in the presence of witnesses and the premises only include two bed rooms, kitchen, lobby, lavatory and bath room.

Mr. Anup Rattan has drawn the attention of the Court to Ex.P-1 and Mr. O.C. Sharma to Ex.DW-1/B. It is evident from the perusal of Ex.P-1 that drawing room was not included in the agreement. Similarly, in Ex.DW-1/B, drawing room, as per clause, has been excluded. Plaintiff has not led evidence that his signatures on Ex.DW-1/B were obtained fraudulently. However, in his cross-examination, he has initially stated that he has not put his signatures on agreement dated 31.3.2003, thereafter, he volunteered that his signatures were obtained on blank papers. In his affidavit he has stated that he is illiterate, but in cross-examination, he has stated that he is matric fail. Thus, it can safely be presumed that he has read the contents of agreement. Ex.DW-1/B has been duly proved on record by the Plaintiff. The Plaintiff had started paying the rent of ` 1850/-. Thus, he started acting upon Ex.DW-1/B.

What emerges from the evidence discussed hereinabove is that the premises were rented out in the year 1996 to the Plaintiff by the Defendant. Drawing room was never part of the agreement even as per Ex. P-1 and Ex.DW-1/B. It has come in the evidence of Defendant that he has never parted with the possession of the drawing room. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and I find no reason to interfere with the findings recorded by both the courts below.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.