2024:HHC:9367
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No. 153 of 2020 a/w C.O. No. 3 of 2021
Reserved on: 21.08.2024
Date of decision : 30.09.2024
Kiran Kochhar & Ors. …..Appellants/non-cross-objectors
Versus
Mohit Gupta and another .… Respondents-cross-objectors
Coram:
Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting? 1
For the appellants : Mr. R.K. Bawa, Sr. Advocate with
Mr. Ajay Kumar Sharma and Mr.
Abhinav Thakur, Advocates.
For the respondents : Mr. R.L. Sood, Sr. Advocate, with
Ms. Sanjivani Sood, Advocate.
Bipin Chander Negi, Judge
The suit property is the entire ground floor of property
known as “Bhupender Bhawan”. In the plaint filed by the present
respondents it is averred that Respondent No.1 and the other
legal heirs of late Sh. Virender Prakash, Yogender Prakash are
the legal and lawful owners of the suit property. Other than the
aforesaid in the plaint it is averred that the suit property stands
duly recorded in their names in the revenue record as owners
thereof.
1 Whether the reporters of the local papers may be allowed to see the judgment? Yes
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2. Besides the aforesaid in the plaint it is averred that
Respondent No.2 is a trust created for the purpose of collecting
rent from the tenants in the suit property with a view to
undertaking charitable, religious activities. Respondent No.1 is
averred to be the Secretary-cum-Trustee of respondent No.2
trust, who vide resolution dated 08.05.2017 (Exhibit PW-1/5), of
the respondent No.2-trust has been authorized to file the suit in
the case at hand.
3. In a nutshell, the case filed by the present
respondents before the trial Court was that the father-in-law of
appellant No.1 and grandfather of appellants No.2 and 3, one late
Sh. Baldev Raj Kochhar had been inducted as a tenant by
respondent No.2-Trust in the suit property specifically in the entire
ground floor of the said ‘Bhupender Bhawan’. Sh. Baldev Raj
Kochhar had died in the year 1993. The tenancy thereof was
inherited by his son Sh. Rajesh Kochhar and Smt. Prakash
Kochhar, his widow. Sh. Rajesh Kochhar had died in the year
1997 and Smt. Prakash Kochhar had died in the month of June,
2005.
4. Since the suit property falls within the purview of the
Himachal Pradesh, Urban Rent Control Act, therefore, in terms of
the expression ‘tenant’ defined therein in Section 2 (j) tenancy
after the death of the initial tenant i.e. Sh. Baldev Raj Kochhar in
the year 1993 devolved on his son Rajesh Kochhar and widow
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Prakash Kochhar. Subsequent to the death of the aforesaid son
and wife in terms of Section 2(j) of the H.P. Urban Rent Control
Act, the tenancy did not devolve on the legal heirs of Rajesh
Kochhar i.e. the present appellants. In the aforesaid facts and
attending circumstances, a suit for possession along with a claim
for use and occupation charges was made by the respondents.
5. In the response filed to the plaint in the preliminary
objections, a bald assertion with respect to the maintainability of
the suit was taken. Besides the aforesaid, an objection on
account of pecuniary jurisdiction was raised. Other than the
aforesaid, it was stated that the suit was not sustainable in view
of the provisions of the H.P. Urban Rent Control Act, as according
to the appellants, they had inherited the tenancy from Rajesh
Kochhar. On merits, it was averred that Rajesh Kochhar was the
original tenant. It was admitted that respondent No.2 i.e. the trust
was the landlord. It was further stated in the written statement
filed to the plaint that appellant No.1 had been paying rent along
with 10% enhancement every five years. The same according to
the appellants was being accepted by the landlord i.e. respondent
No.2-Trust.
6. In the aforesaid backdrop, following issues were
framed:-
1. Whether the father-in-law of defendant No.1 was original
tenant and he died in the year 1993 and after his death,
tenancy was inherited by his wife Smt. Parkash Kochhar
and his son Sh. Rajesh kochhar and after the death of
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Smt. Parkash Kochhar and Sh. Rajesh Kochhar, the
tenancy came to an end and plaintiffs are entitled for
possession, as prayed for?
…OPP
2. Whether the plaintiffs are entitled for recovery of
Rs.5,49,000/- alongwith interest @ 12% per annum on
account of occupation charges for the last three years?
…OPP
3. Whether the plaintiffs are entitled for Rs.500/- per day
as use and occupation charges from the date of filing of
suit till delivery of possession of suit property, as prayed
for? … OPP
4. Whether the suit is not maintainable in the present
form? …OPD
5. Whether the value of suit property is Rs.5,00,000/- and
this Court has no pecuniary jurisdiction to try the same?
…OPD
6. Whether this Court has no jurisdiction in view of the
provisions of HP Urban Rent Control Act to decide the
present suit as alleged? …OPD
7. Whether late Sh. Rajesh Kochhar was original tenant
and present defendants have inherited the tenancy right
from him, as alleged?
…OPD
8. Relief.
7. Heard counsel for the parties and perused the entire
record.
8. Qua the issue of maintainability, the following was
stated as a preliminary objection in the written statement:
“That the suit, as framed, is not at all maintainable in
its present form”.
9. In this respect, it would be appropriate to refer to
provisions of Order VIII, which pertains to Written Statement, Set
–Off and Counter-claim, and specifically Sub Rule 2 thereof:-
Order VIII
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2. New facts must be specially pleaded.- The defendant must raise by
his pleading all matters which show the suit not to be maintainable, or that the
transaction is either void or voidable in point of law, and all such grounds of
defence as, if not raised, would be likely to take the opposite party by
surprise, or would raise issues of fact not arising out of the plaint, as, for
instance, fraud, limitation, release, payment, performance, or facts showing
illegality.
10. From the bare perusal of the provisions of Order 8
Rule 2 thereof, it is clearly evident that in a written statement filed,
once an issue of maintainability is raised then the defendant
therein must raise by pleading all matters, which show the suit to
be not maintainable. These facts specifically stated in a set of
paragraphs will always give an opportunity to the plaintiff to
respond to the same in the replication/rejoinder, if need be. For if
the same are not raised specifically, then the same would take the
opposite party by surprise (Rule itself provides). This in turn will
enable the Court to properly comprehend the pleadings of the
parties instead of searching for the material particulars of a bald
plea of maintainability from the various paragraphs of the written
statement. In this regard one can once again gainfully refer to
Thangam’s case referred below para 27 thereof.
11. On scanning the written statement one finds that in
the reply on merits (a) the present appellants therein admit the
respondent trust to be their landlord. Under the H P Urban Rent
Control Act the expression landlord includes not only the actual
owner of the property but even someone who is authorized to
collect rent on behalf of the owner (b) However as per the present
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appellants, Mohit Gupta is not its secretary cum trustee (c)
resolution of the trust dated 08-05-17 authorizing Mohit Gupta to
file the plaint on behalf of the trust is also denied, last but not the
least (d) most importantly contents of the plaint pertaining to the
description of the respondent trust (trust created for the purpose
of collecting rent from the tenants in the suit property with a view
to undertaking charitable, religious activities) have neither been
denied specifically or by a necessary implication nor is there a
statement that the fact in this respect is not admitted.
12. A general or evasive denial is not treated as
sufficient. In this regard a reference to Order 8 Rule 5 CPC is
essential. The same is being reproduced here-in-below:-
Order 8 Rule 5:-
5. Specific Denial- (1) Every allegation of fact in the plaint, if
not denied specifically or by necessary implication, or stated to
be not admitted in the pleading of the defendant, shall be taken
to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact
so admitted to be proved otherwise than by such admission.
13. In this respect reference can gainfully be made to
case reported as (2024) 4 SCC 247 titled Thangam and
another vs. Navamani Ammal, relevant paras whereof are
being reproduced
-
25. Order 8 Rules 3 and 5 CPC clearly provides for specific
admission and denial of the pleadings in the plaint. A general or
evasive denial is not treated as sufficient. Proviso to Order VIII
Rule 5 CPC provides that even the admitted facts may not be
treated to be admitted, still in its discretion the Court may
require those facts to be proved. This is an exception to the
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general rule. General rule is that the facts admitted, are not
required to be proved.
26. The requirement of Order VIII Rules 3 and 5 CPC are
specific admission and denial of the pleadings in the plaint.
The same would necessarily mean dealing with the allegations
in the plaint para-wise. In the absence thereof, the respondent
can always try to read one line from one paragraph and
another from different paragraph in the written statement to
make out his case of denial of the allegations in the plaint
resulting in utter confusion.
27. In case, the defendant/respondent wishes to take any
preliminary objections, the same can be taken in a separate
set of paragraphs specifically so as to enable the
plaintiff/petitioner to respond to the same in the
replication/rejoinder, if need be. The additional pleadings can
also be raised in the written statement, if required. These facts
specifically stated in a set of paragraphs will always give an
opportunity to the plaintiff/petitioner to respond to the same.
This in turn will enable the Court to properly comprehend the
pleadings of the parties instead of digging the facts from the
various paragraphs of the plaint and the written statement.
28. The issue regarding specific admission and denial of
the pleadings was considered by this Court in Badat and Co.
Bombay Vs. East India Trading Co. While referring to Order
VIII Rules 3 to 5 of the CPC it was opined that the aforesaid
Rules formed an integrated Code dealing with the manner in
which the pleadings are to be dealt with. Relevant parts of para
‘11’ thereof are extracted below:
“11. Order 7 of the Code of Civil Procedure prescribes, among
others, that the plaintiff shall give in the plaint the facts
constituting the cause of action and when it arose, and the
facts showing the court has jurisdiction. The object is to enable
the defendant to ascertain from the plaint the necessary facts
so that he may admit or deny them. Order VIII provides for the
filing of a written-statement, the particulars to be contained
therein and the manner of doing so; These three rules form an
integrated code dealing with the manner in which allegations of
fact in the plaint should be traversed and the legal
consequences flowing from its non- compliance. The written
statement must deal specifically with each allegation of fact in
the plaint and when a defendant denies any such fact, he must
not do so evasively, but answer the point of substance. If his
denial of a fact is not specific but evasive, the said fact shall be
taken to be admitted . In such an event, the admission itself
being proof, no other proof is necessary.”
29. The matter was further considered by this Court
in Lohia Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs.
Atmaram Kumar8 after the 1976 Amendment Act
in CPC whereby the existing Rule 5 of Order VIII of the
CPC was numbered as sub-rule (1) and three more sub-rules
were added dealing with different situations where no written
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statement is filed. In paras 14 and 15 of the aforesaid
judgment, the position of law as stated earlier was reiterated.
The same are extracted below: (SCC pp. 8-9, paras 14-15).
“14. What is stated in the above is, what amount to admit a
fact on pleading while Rule 3 of Order 8 requires that the
defendant must deal specifically with each allegation of fact of
which he does not admit the truth.
15. Rule 5 provides that every allegation of fact in the plaint, if
not denied in the written statement shall be taken to be
admitted by the defendant. What this rule says is, that any
allegation of fact must either be denied specifically or by a
necessary implication or there should be at least a statement
that the fact is not admitted. If the plea is not taken in that
manner, then the allegation shall be taken to be admitted.
14 Hence, in terms of Order 8 Rule 5, contents of the
.
plaint insofar as they pertain to the description of the
respondent trust namely (a) respondent no. 2- trust has been
created for purpose of collecting rent from the tenants in the suit
property (b) rent is collected by the respondent no. 2-trust with a
view to undertaking charitable, religious activities, are held to be
admitted in terms of provisions of Order 8 Rule 5(1) CPC.
15. In view of the aforesaid the bald plea of
maintainability taken by the present appellants in their written
statement has to be taken to be one pertaining to the competence
of the authorized signatory of the respondent trust to file the suit
on behalf of the respondent no. 2-trust.
16. In the facts and attending circumstances of the case
at hand the afore stated preliminary objection qua maintainability
raised by the contesting appellantss is in fact a plea of demurrer.
As respondent no 2 is admitted to be a trust, however, the
competence of the authorized signatory of the respondent trust is
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doubted as being defective. Demurrer has been explained in
Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638, at
page 650 relevant extract is being reproduced hereinbelow;
Demurrer is an act of objecting or taking exception or a protest.
It is a pleading by a party to a legal action that assumes the
truth of the matter alleged by the opposite party and sets up
that it is insufficient in law to sustain his claim or that there is
some other defect on the face of the pleadings constituting a
legal reason why the opposite party should not be allowed to
proceed further.
17. A resolution dated 08.05.2017, Exhibit PW-1/5 has
been placed on record, whereby respondent No.2/Trust has
authorized the filing of the present suit on their behalf by
respondent No.1, who also as per the resolution happens to be
the Secretary-cum-Trustee of respondent No.2-Trust. The
aforesaid resolution needs to be understood in the context of the
following admissions, (a) respondent no 2 trust is created for
purpose of collecting rent from the tenants in the suit property (b)
rent is collected by the respondent no 2 trust with a view to
undertaking charitable, religious activities. Other than the
aforesaid the fact that the suit property still continues to be a
private property owned by respondent no 1 and other co-owners
cannot be lost sight of as is evident from the record of rights i.e
Jamabandi Exhibit PW/1.
18. In this respect it would be appropriate to refer to
Menakuru Dasaratharami Reddi v. Duddukuru Subba Rao,AIR
1957 SC 797 wherein a Constitution Bench of the apex Court
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dealt with the question of whether the suit properties were the
subject-matter of a public charitable trust or were merely charged
with the obligation to undertake specific charities. P.B.
Gajendragadkar, J. (as the learned Chief Justice then was),
speaking for the Court, held : (AIR p. 800, para 5)
“5. … Now it is clear that dedication of a property to religious or charitable
purposes may be either complete or partial. If the dedication is complete, a
trust in favour of public religious charity is created. If the dedication is partial,
a trust in favour of the charity is not created but a charge in favour of the
charity is attached to, and follows, the property which retains its original
private and secular character. Whether or not dedication is complete would
naturally be a question of fact to be determined in each case in the light of the
material terms used in the document.
In such cases it is always a matter of ascertaining the true intention of the
parties; it is obvious that such intention must be gathered on a fair and
reasonable construction of the document considered as a whole. The use of
the word “trust” or “trustee” is no doubt of some help in determining such
intention; but the mere use of such words cannot be treated as decisive of the
matter.
Is the private title over the property intended to be completely extinguished?
Is the title in regard to the property intended to be completely transferred to
the charity? The answer to these questions can be found not by concentrating
on the significance of the use of the word “trustee” or “trust” alone but by
gathering the true intent of the document considered as a whole.”
19. In the case at hand a charge in favour of the charity
is attached to, and follows, the suit property which retains its
original private and secular character as is evident from the
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record of rights i.e Jamabandi. Retention of the original private
and secular character of the suit property is writ large from the
revenue record. The use of the word “trust” or “trustee” in the
case at hand is immaterial. Once the suit property retains its
original private and secular character than in the said eventuality
the suit in the case at hand would be maintainable at the behest
of respondent no 1 i.e one of the co-owners.
20. Order 41 Rule 27(1)(b) of the Code of Civil
Procedure could have invoked to see that injustice is not done by
rejection of a genuine claim. Since I have come to the aforesaid
conclusion, therefore there is no need to exercise jurisdiction
under Order 41 Rule 27(1)(b) of the Code of Civil Procedure to
direct any other competent person to be examined as a witness in
order to prove ratification or the authority of Shri Mohit Gupta to
sign the plaint on behalf of respondent no 2.
21. Exhibit PW/1 is the Jamabandi i.e the record of rights
which carries with it a presumption of truth. The suit property has
been recorded therein as bearing Khasra No. 454. In the
remarks column thereof, it has been stated that by virtue of
mutation bearing No.440, post the death of Virender Prakash, out
of his share in the property half share has devolved upon
respondent No.1. Mutation dated 10.06.2016 bearing No. 440
has been appended alongwith the plaint as Exhibit PW-1/2.
Exhibit PW-1/3 is the voter identity card of respondent No.1
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issued by the Election Commission of India, wherein respondent
No.1 has been shown as the son of Virender Prakash. In this
respect, legal heir certificate of late Virender Prakash has been
placed on record as Exhibit PW-1/4, wherein respondent No.1
has been shown as a legal heir.
22. In order to prove that late Baldev Raj Kochhar had
been inducted as a tenant, the respondents in the case at hand
had placed on record a personal declaration made on 30.05.1991
before the Municipal Corporation by late Sh. Baldev Raj Kochhar
stating therein that he was the sole tenant in the suit property and
was paying rent @ Rs.1500/- per year. The said declaration has
been proved on record as Exhibit PW-1/20.
23. Other than the aforesaid, the respondents have
placed on record Exhibit PW-1/6 to Exhibit PW-1/19, relevant tax
inspection list prepared by the Municipal Corporation, Shimla,
wherein the name of Baldev Raj Kochhar exists as an
occupant/tenant in the suit property. Besides the aforesaid, as
Exhibit PW-1/21, the respondents have placed on record tax
assessment, wherein the name of Baldev Raj Kochhar exists as a
tenant. The electricity bills placed on record as Exhibit PW-1/22
reflects the name of Baldev Raj Kochhar. Water bills placed on
record as Exhibit PW-1/23 to PW-1/25 again record the name of
Baldev Raj Kochhar.
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24. One Sham Lal an employee of the water supply
department of Municipal Corporation, Shimla had appeared as
PW-2. In his testimony he had deposed that consumer account
No. 14795 has been in the name of Baldev Raj Kochhar. Other
than the aforesaid, one Sh. Ashwani Kumar an employee of the
tax department of the Municipal Corporation, Shimla had
appeared as PW-3 and had categorically stated that Baldev Raj
Kochhar was the recorded tenant on the ground floor of
‘Bhupender Bhawan’ as per the tax assessment report i.e. Exhibit
PW-1/21 and declaration made by Baldev Raj Kochhar i.e. Exhibit
PW-1/20. Besides the aforesaid, one Mohender Chauhan had
appeared as PW-5 and had produced the record of the electricity
meter from the office of SDO Electricity. As per his deposition
vide Exhibit PW-5/A i.e. certificate issued by the Assistant
Engineer, Chotta Shimla -Sub-Division, HPSEBL, Shimla-II, the
record pertaining to the installation of the electricity meter in the
name of Baldev Raj Kochhar in the suit property is not traceable
since the connection was installed before 1985. The consumption
and payment record qua electricity meter installed i.e. Exhibit
PW-5/B reflects that the same is in the name of Baldev Raj
Kochhar.
25. Appellant No.1 had appeared as PW-3. She admits
that the date of birth of her husband is 31.12.1959. Other than
the aforesaid, she has admitted that since childhood, her
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husband had been in the suit premises and that he had done his
schooling in Shimla. She had married Rajesh Kochhar in 1988.
No documentary record has been placed on record by the said
appellant to show that Rajesh Kochhar had been inducted as the
initial tenant. In her testimony, she has deposed and admitted that
the suit property in the case at hand had been in their possession
since the last 60 to 70 years. In her testimony, she has also
admitted that when the possession of the suit property was taken
at that time, her husband i.e. Rajesh Kochhar might have been a
small child or may not have been born.
26. Admittedly in the case at hand , Baldev Raj Kochhar
had died in the year 1993. Rajesh Kochhar had died in the year
1997. Prakash Kochhar had died in the year 2005. On the basis
of the declaration made by Baldev Raj Kochhar as Exhibit PW-
1/20, recording of the name of Baldev Raj Kochhar in the
electricity/water bills, tax record of the Municipal Corporation, in
the absence of any record/document proving that Rajesh Kochhar
had been inducted as the initial tenant and on the basis of
admissions made in the deposition of appellant No. 1 i.e. PW-3, it
is proven on record that Baldev Raj Kochhar had been inducted
as the initial tenant.
As a last ditch effort a plea of tenancy in favour of the
appellants was sought to be made on the basis of rent being
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deposited by them in the bank account of the respondent no. 2-
trust. In this respect a reference to an apex Court judgement titled
S.R. Radhakrishnan v. Neelamegam, (2003) 10 SCC 705, at
page 709 would suffice. Relevant extract whereof is being
reproduced hereinbelow :
8……………… Further, it is settled law that one does not become a tenant
by mere payment of rent even if that be so.
27. According to the appellants, the Civil Court had no
jurisdiction to decide the present suit in the case at hand as the
same was triable under the provisions of H.P. Urban Rent Control
Act. Qua this issue no evidence was led by the appellants on
whom lay the onus to prove the same.
28. Even otherwise once it has been held that the
original tenant was late Baldev Raj Kochhar. Hence, in terms of
provisions 2(j) of the Urban Rent Control Act, 1987, the tenancy
could have only devolved on Rajesh Kochhar, the son of late
Baldev Raj Kochhar and his wife Prakash Kochhar. Subsequent
to the death of the aforesaid two individuals, tenancy could not
have devolved any further on the other legal heirs of Rajesh
Kochhar namely the present appellants. In the absence of a
landlord tenant relationship inter-se the parties obviously no
proceedings could have been initiated by the present
respondents against the present appellants under the H P Urban
Rent Control Act. Hence, the Trial Court correctly decided the
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same in favour of the present respondents and against the
appellants.
29. From a perusal of the Jamabandi i.e. Exhibit PW-1/1,
it is evident that the suit property is situated on Khasra No. 454.
In the Jamabandi, the same has been recorded as 161-15
sq.mtrs. In the valuation report filed by the present respondents
Exhibit PW-4/A, the schedule of area (ground floor area) has
been shown to be 136.63 sq.mtrs. Valuation of the building and
cost of land has been assessed in the aforesaid valuation report
on the basis of the aforesaid area. Per contra, in the valuation got
done by the appellants i.e. Exhibit DW-2/B, the schedule of area
(ground floor area) has been wrongly shown to measure 134.36
square feet (12.48 sq.mtrs). No assessment on account of value
of land has been taken into account.
30. Other than the aforesaid, it has come in evidence
that the suit property is located near Chotta Shimla and only a
few meters from the road leading to Chotta Shimla from the Mall
Road. Taking into account the aforesaid, the trial Court has
correctly come to conclusion that the suit property in the case at
hand has been properly valued and on this count, the trial Court
did not suffer from lack of pecuniary jurisdiction.
31. Once it has been established by cogent evidence
that the original tenant was late Baldev Raj Kochhar therefore, in
terms of provisions 2(j) of the Urban Rent Control Act, 1987, the
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tenancy could have only devolved on Rajesh Kochhar, the son of
late Baldev Raj Kochhar and his wife Prakash Kochhar.
Subsequent to the death of the aforesaid two individuals, tenancy
could not have devolved any further on the other legal heirs of
Rajesh Kochhar namely the present appellants.
32. In the suit, a specific claim qua use and occupation
charges @ Rs. 500/- per day have been made by the present
respondents prior to three years of the filing of the suit till
possession of the suit property is delivered to the respondents by
the present appellants. Since the appellants are illegal occupants,
post determination of the tenancy by the trial court the present
respondents are entitled to use and occupation charges, till date
of delivery of possession by the appellants. The rationale behind
the same being that once a decree for possession has been
passed and execution is delayed for depriving the judgment-
creditor of the fruits of decree it is necessary for the Court to pass
appropriate orders so that 'reasonable' mesne profits which may
be equivalent to the market rent is paid by a person who is
holding over the property. The same puts a check on the
diabolical plans of the person who is holding over the property
and helps ensure that he does not squat on the premises by
paying a meager rent. The idea is to reasonably compensate the
landlord for loss caused by delay in execution of the decree by
grant of stay order.
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33. Reference in this regard can gainfully be made to
Judgment in (2017) Online H.P. 1928 : (2017) 2 RCR (Rent)
293 : (2017) 1 Latest HLJ 589, titled Champeshwar Lall and
Anr. vs. Gurpartap Singh and Ors., relevant paras whereof is
being reproduced
:-
17. Likewise, in Marshals Sons and Co.(I) Ltd. vs. Sahi
Oretrans (P) Ltd . (supra), it was categorically held that once
a decree for possession has been passed and execution is
delayed depriving the judgment-creditor of the fruits of decree,.
it is necessary for the Court to pass appropriate orders so that
'reasonable' mesne profits which may be equivalent to the
market rent is paid by a person who is holding over the
property.
18. At the same time, it was also held that while fixing the
amount, subject to payment of which the execution of the
order/decree is stayed, the Court would exercise restraint and
would not fix any excessive, fanciful or punitive amount.
19. What is 'reasonable' is difficult to define and this
expression being a relative term is required to be considered
vis-à-vis, the fact situation obtaining in a particular
case………..
22. Therefore, the term 'reasonable', as has been used by
the Hon'ble Supreme Court and this Court is required to be
interpreted in a manner so as to ensure that the landlord is
reasonably compensated for the loss occurred by the delay in
execution of the decree by grant of stay order. The rent has
to be determined on case to case basis depending upon the
cogent material placed on record by the parties and would
therefore, normally be dependent upon the occupation, trade
or business etc. of the tenant and would further not be
dependent solely on the capacity to pay or actual earning of
the tenant, who has suffered an order of eviction.
23. The fixation of mesne profits and use and occupation
charges are to be assessed on the basis of the evidence
led by the parties as to the prima facie market value
existing at the time of admission of the appeal after the
eviction order, which has been exclusively bestowed on the
landlord so that he would be able to reasonably compensate
for loss caused by delay in execution of the decree by grant of
stay order. The Court while doing so is not to be guided by
the factors that the parties at one point of time while
creating the tenancy had agreed at a meager amount of
rent, it would depend upon the material produced before the
Court which under no circumstances can be ignored even
though thereafter the rent so fixed may work out to be multiple
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times to the one which was fixed at the time of creation of the
tenancy.”
34. In so far as the rate at which use and occupation
charges have been claimed(Rs 500/- per day), in the written
statement filed by the appellants the same has not been denied
specifically or by necessary implication, or stated to be not
admitted. A general or evasive denial is not sufficient. Hence,
in terms of Order 8 Rule 5 CPC, the rate at which the use and
occupation charges are claimed by the respondents/cross-
objectors have been admitted. In this respect reference can
once again be made to case reported as (2024) 4 SCC 247
titled Thangam and another vs. Navamani Ammal, relevant
paras whereof have already been reproduced supra.
35. Besides there is also no cross-examination in
respect to the plea of use and occupation charges as have been
claimed by the respondents-cross objectors. The effect of non-
cross-examination is that the statement of witness has not been
disputed. The rule of putting one's version in cross-examination is
one of essential justice and not merely technical one. No
challenge either in pleadings or cross-examination means that the
rate at which the use and occupation charges have been claimed
by the respondents/cross-objectors stands fully established. The
rule of evidence is common both to the civil and the criminal trials.
Reference in this regard can be made to Judgment in (2021) 11
20
2024:HHC:9367
SCC 1 titled Arvind Singh vs. State of Maharashtra, relevant
extract whereof is being reproduced
:-
62. ……………………….The rule of putting one's version in
cross-examination is one of essential justice and not merely
technical one.
“15. ………………………The effect of non-cross-examination is
that the statement of witness has not been disputed.
16. In Maroti Bansi Teli v. Radhabai, it has been laid down that
the matters sworn to by one party in the pleadings not
challenged either in pleadings or cross-examination by other
party must be accepted as fully established .
Hence the respondents would be entitled to use and
occupation charges @ Rs. 500/- per day from the date of
determination of the tenancy by the trial court till the suit property
is delivered to the respondents.
36. The appellants in the case at hand tried to lay a claim
of adverse possession in so far as the tenancy is concerned. In
this respect, it would be appropriate to refer to case reported as
(2004) 1 SCC 551, V. Rajeshwari v. T.C. Saravanabava,
relevant extract whereof is being reproduced:-
“… A plea not properly raised in the pleadings or in issues
at the stage of the trial, would not be permitted to be raised
for the first time at the stage of appeal…”
37. The right to recover possession based on title is
absolute irrespective of limitation in the absence of adverse
possession pleaded by the present appellants/defendants for 12
years as has been held by the apex court in (2019) 8 SCC 729
titled Ravinder Kaur Grewal and others vs. Manjit Kaur and
others, relevant para whereof is being reproduced:-
21
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56. There is the acquisition of title in favour of plaintiff though it
is negative conferral of right on extinguishment of the right of
an owner of the property. The right ripened by prescription by
his adverse possession is absolute and on dispossession, he
can sue based on ‘title' as envisaged in the opening part under
Article 65 of Act. Under Article 65 , the suit can be filed based
on the title for recovery of possession within 12 years of the
start of adverse possession, if any, set up by the defendant.
Otherwise right to recover possession based on the title is
absolute irrespective of limitation in the absence of adverse
possession by the defendant for 12 years. The possession as
trespasser is not adverse nor long possession is synonym with
adverse possession.
In view of the aforesaid the appeal filed is dismissed
being devoid of any merit and the cross-objections filed are
allowed in the aforesaid terms. The costs to be borne by the
parties. Pending miscellaneous applications(s), if any, shall also
stand disposed of.
(Bipin Chander Negi)
Judge
30th September, 2024
(vs/tarun)