Harbhajan Singh Gill v. The Managing Committee & Anr.

Mr.D.S.Pheruman, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) This is defendant's regular second appeal against the judgment and decree dated 13.11.2009 passed by the learned Courts below vide which suit for mandatory injunction filed by the plaintiff/respondents for possession by way of eviction of the appellant/defendant stood decreed. Plaintiff/respondent that is the Managing Committee of Doaba Khalsa Higher Secondary School, Jalandhar which through its Manager sought possession, by way of eviction, due to termination of the licence, of the defendant/appellant. It was pleaded by the plaintiff/respondents that the RSA No.1133 of 2010 2 premises in dispute were given to the appellant for residence, on his appointment as Joint Principal, as per practice of the respondent/school. Services of the appellant were terminated with effect from 14.7.1997, and therefore, licence came to an end on the termination of his services. The appellant was asked to vacate the premises, and pay the damages for its use and occupation. Suit was contested by the defendant/appellant by taking number of preliminary objections. On merit, stand taken was, that plaintiff was neither the owner of the land or the building, including suit property. He also denied, being the licencee of the plaintiff/respondents. However, he admitted the termination of his services, by school but claimed that the termination was under challenge in the civil court. Learned Courts below on the basis of pleadings and evidence came to the conclusion that question to be decided in the suit was the relationship of plaintiffs and defendant qua the suit property. Though the stand taken by the defendant was that, he was sitting in the property in his own right and had gone to the extent of claiming adverse possession, but this stand of the defendant/appellant was not accepted in view of the fact, that in the civil suit filed by him against his termination, he had admitted that he came in possession of principal's official residence in his capacity as Joint Principal. Learned courts below, therefore, recorded a concurrent finding of fact, that the suit filed by the plaintiffs, could not be converted into determination of title to the property, as it was not open for a licencee to RSA No.1133 of 2010 3 dispute the title of his licensor. It was incumbent upon the defendant/ appellant to have handed over the possession of the property, which was admittedly taken from the school, in view of the stand taken in the previous suit filed by the defendant/appellant. The learned courts below held that cock and bull story, set up by the defendant/appellant to show his possession over the property was not believable, as he claimed to have come in possession of the property which was said to be in possession of his son earlier, but he was unable to tell a status of his son or the student who was said to be living with him. After decree of possession was passed against the defendant/appellant, an application was moved under Order 41 Rule 27 of the Code of Procedure (for short the Code) to set up a new plea, that he had been issued a notice under the Punjab Package Deal Properties (Disposal) Act, and for Eviction from the Premises. He, therefore, claimed to be in possession under the Central Government. Learned lower appellate court rejected the application, firstly for the reason that it was beyond pleadings and secondly for the reason that the appellant could not be allowed to fill in the lacunae in the case. Plea of adverse possession was also rejected by recording a finding that in order to succeed on the plea of adverse possession, it was for him to have proved, that his possession was adverse possession with necessary animus, of asserting open and hostile title to the knowledge of the true owner, and that too for a statutory period of for more than 12 years. None of the ingredients of adverse possession was pleaded or proved by the plaintiffs. By holding that the stand taken by the defendant/appellant was RSA No.1133 of 2010 4 totally false, the suit was decreed, by the learned courts below by recording a concurrent finding of fact that the licence of the appellant stood terminated with termination of his services. Sh. D.S.Pheruman, learned counsel appearing on behalf of the appellant contented that the following substantial questions of law arises in this appeal for consideration of this Court:-

1. Whether the civil court has jurisdiction to entertain the civil suit in view of the fact that ejectment can be made only under the Rent Restriction Act?

2. Whether it has become necessary to frame the issues in controversy and non framing of the issues, effect thereof?

3. Whether the legal issue regarding the jurisdiction of the civil court can betaken in the second appeal in view of the special enactment under Section 13 (a) (1) (d) of the East Punjab Urban Rent Restriction Act? In support of the substantial questions of law, referred to above, learned counsel for the appellant, contended that the appellant being in possession of the premises as a tenant could only be evicted under Section 13 of the East Punjab Rent Restriction Act, and the civil court did not have the jurisdiction to entertain and try the suit. This substantial question of law, does not arise in the present case nor the contention of the learned counsel for the appellant can be accepted. There was no relationship of landlord and tenant between the RSA No.1133 of 2010 5 parties. The defendant/appellant was put in possession of the residence earmarked for the Joint Principal, in view of his appointment. He had the right to continue in possession, only during his tenure of employment. On termination of his services, his right to occupy the premises stood terminated. The learned courts below, therefore, rightly held that the defendant/appellant has no locus standi to continue with the possession and rightly decreed the suit. Substantial questions of law Nos. 1 and 3, as raised are, therefore, answered against the appellant. Learned counsel for the appellant, on substantial question of law No.2 contended that once the plea was raised by the defendant/appellant that plaintiff/respondents were not the owner of the property in dispute, there was necessity to frame for proper issues, and the court should have allowed the parties to lead evidence on the said issue. The contention of the learned counsel for the appellant was that because of non-framing of proper issues, rights of the defendant/appellant stood prejudiced. This contention is again totally misconceived. As already observed above, it is settled law that a person put in possession, cannot deny the title of his landlord and merely on denial of the title he is liable to be evicted from the property in dispute. The defendant/appellant in the suit filed by him against his termination had admitted that he was put in possession of the property in pursuance to his appointment as a Joint Principal. Therefore, on termination of his services he had no right to continue in possession of the property. Learned courts below rightly held that the suit could not be RSA No.1133 of 2010 6 converted into one for title merely because of the contentions raised, which were not available to the defendant/appellant in the facts and circumstances. It was also the contention of the learned counsel for the appellant that the learned lower appellate court wrongly dismissed the application moved by the appellant under Order 41 Rule 27 of the Code, though the evidence sought, to be led was necessary for the adjudication of the case. This contention again is misconceived. Learned lower appellate court rightly dismissed the application as the conditions laid down under Order 41 Rule 27 of the Code were not fulfilled, and the application was otherwise against the settled law, that the provisions of Order 41 Rule 27 of the Code cannot be used to fill in lacunae in the case. Additional evidence sought to be led, was not necessary for adjudication of the dispute between the parties, as the defendant/appellant being licencee was liable to hand back the possession to the plaintiff/respondents, on termination of his services. Substantial questions of law raised are answered against the appellant, and finding no merit in the appeal, it is dismissed, but with no order as to costs.

26.03.2010 (Vinod K.Sharma) Judge