Decided on October 04,1991

SADHU RAM Appellant


DEVINDER GUPTA,J. - (1.) This is defendants appeal against the judgment and decree passed on July 23, 1977, by District Judge, Shimla, dismissing his appeal and thereby confirming the judgment and decree passed on November 30, 1974, by Senior Sub -Judge. Shimla decreeing the suit of the plaintiffs -respondents.
(2.) The facts in brief are that on August 4, 1970, R. C. Chopra, predecessor in -interest of plaintiffs -respondents filed a suit for recovery of possession by ejectment of defendant from four residential quarters located in Buttermere estate Summer Hill, Shimla, alongwith recovery or Rs 610 as compensation for use and occupation against defendant -appellant. Basis for claim, as disclosed in the plaint was that the property was purchased by the plaintiff from Its previous owner Diwan Chand Bhatia through sale -deed dated June 18, 1957. At the time of purchase of the property, eviction proceedings were pending against the defendant before Rent Controller, Shimla, under the provisions of the East Punjab Urban Rent Restriction Act, which had been instituted by Shri Bhatia through his son N. L. Bhatia and there was stipulation in the sale -deed that the decision in the proceedings would be binding on the parties It was further averred that eviction petition was dismissed by Rent Controller, Shimla and Shri Bhatia preferred an appeal before the Appellate Authority, Ambala. The said appeal was accepted and an order of ejectment was passed against the defendant The defendant then went in revision before the Punjab High Court and his revision was dismissed on September 13, 1958, Two months time was allowed to the defendant to vacate the premises. Plaintiff further alleged in the plaint that after dismissal of the revision petition, defendant approached him for accepting him as tenant1 in the four quarters at the rate of Rs. 5 per quarter, which request of his was accepted and the rent payable was agreed at Rs. 20 per month with effect from January 1, 1959 but the defendant did not care to pay any amount to the plaintiff by taking undue advantage of his absence from Shimla as he was in Government Service in Maharashtra. Eviction proceedings were initiated by the plaintiff against defendant under the provisions of East Punjab Urban Rent Restriction Act on the ground of non -payment of arrears, in which plea of adverse possession was taken but the plaintiff was thereafter advised to file a suit for possession on the basis of title. It was averred in the plaint that defendants occupation in the premises till November 13, 1958 was held to be that of a tenant since he was allowed on September 13, 1958, two months time by the Punjab High Court to vacate the premises, therefore, his plea that he had acquired title to the property by adverse possession was wholly untenable On these facts, decree for possession, on the basis of title was claimed Defendant resisted the suit by urging that in the previous proceedings initiated by Shri Bhatia he had taken up the plea of adverse possession and had not been dispossessed from the premises and, therefore, his possession had matured into ownership. Defendant denied that after the disposal of Court Revision by the Punjab High Court he entered into any fresh lease as contended by the plaintiff.
(3.) The trial court decreed the suit of the plaintiff holding the defendants possession till November 30, 1959 as permissive and plaintiff was held entitled to a decree for possession on the basis of title The suit filed within a period of twelve years from November 13, 1958 was held to have been filed in time. The appeal preferred by the defendant was also dismissed by the lower appellate court by affirming the findings of fact. The lower appellate court observed that in terms of the order ultimately passed by Punjab High Court on September 13, 1958, the defendant was allowed time upto December, 30, 1958 to vacate the premises and since the present suit had been filed on August 5, 1970, much before the expiry of twelve years, therefore, there was no question of defendants possession maturing into ownership by holding it adversely. In the present appeal, the judgment and decree passed by the courts below are under challenge.;

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