N.C.JAIN,J - (1.) THIS is plaintiff's appeal against the judgment and decree of the appellate Court by which their suit has been dismissed by the first appellate Court which was decreed by the trial Court.
(2.) THE plaintiff-appellants filed a suit for the possession of shop on the averments that Piare Lal defendant No. 2 was the owner of the shop of dispute who vide agreement dated 27.12.1962 Exhibit PW-6B agreed to sell his shop to the plaintiffs. The sale deed was to be executed upto April, 1963. It was also agreed between the parties that in case the owner Piare Lal could deliver actual possession of the shop, the plaintiffs were to pay Rs. 3000/- in all and in case has to deliver only symbolical possession the plaintiffs were to pay Rs. 2400/- in all. Since Piare Lal did not execute the sale deed a suit was filed in the first instance against the defendants seeking a decree for permanent injunction restraining Piare Lal from alienating the shop in dispute in favour of Shiv Lal respondent No. 1. Consequently, the aforesaid owner Piare Lal was restrained from alienating the shop in favour of Shiv Lal respondent No. 1. Later on, a suit for specific performance was filed which was decreed. It was further averred that Piare Lal inducted Shiv Lal respondent No. 1 as a tenant. The suit for specific performance was ultimately decreed and a decree for symbolical possession only was passed in favour of the plaintiffs on payment of Rs. 2400/- in all. The present suit for possession was filed of the specific averments that Shiv Lal respondent No. 1 was inducted into the shop as a tenant after the agreement of sale was executed by Piare Lal in favour of the plaintiffs. The defendant-respondents contested the suit primarily in the plea that Shiv Lal respondent No. 1 was in possession of the shop as a tenant prior to the agreement and, therefore, could not be ejected except in accordance with the provisions of East Punjab Urban Rent Restriction Act. On the pleadings of the parties the following issues were framed :- 1. Whether other persons named in para 1 of the additional pleas of the written statement filed by defendant No. 2, and para 3 of the additional pleas of the written statement filed by defendant No. 1 are owners of the suit property ? If so, what are their respective shares and to what effect ? OPD (1&2). 2. Whether defendant No. 1 is a tenant on the suit property ? If so, since when and on what terms ? OPD (1). 3. Whether the suit is bad for non-joinder of necessary parties ? OPD (1-2). 4. Whether the present suit is barred by principle of res judicata, as alleged ? OPD (1-2). 5. Whether the defendants are estopped from taking the plea of ownership of the other persons as done in the written statement and that of the tenancy by defendant No. 1 ? OPP. 6. If issue No. 2 is proved, whether this Court has jurisdiction to entertain the suit ? OPP. 7. Whether the suit is properly valued for purposes of court fee and jurisdiction ? OPP. 8. Relief. The trial Court while decreeing the suit of the plaintiffs held them to be the sole owners of the shop in dispute and it was further held that Piare Lal defendant No. 2 delivered the possession to Shiv Lal defendant No. 1 with fraudulent intention and that there was no bonafide agreement of tenancy between the defendants. A finding was recorded by the trial Court that there was no relationship of landlord and tenant between Piare Lal defendant No. 2 and Shiv Lal defendant No. 1. Shiv Lal was held to have entered into possession of the shop in dispute after the agreement of sale in favour of the plaintiffs and, therefore, Piare Lal was found not to be legally entitled to take the plea of tenancy in favour of Shiv Lal. After recording the finding on all the issues in favour of the plaintiffs, suit for possession was decreed. Shiv Lal defendant respondent No. 1 challenged the correctness of the judgment and decree of the trial Court by way of filing an appeal before the first appellate Court. The first appellate Court has reversed the judgment and decree of the trial Court. The findings recorded by the appellate Court are that the appellant was in possession of the shop as tenant before the agreement of sale took place on 27.12.1962. It was further held that Piare Lal was within his right to give possession of the shop to Shiv Lal even after he had entered into an agreement. The finding of the trial Court that Piare Lal delivered the possession to Shiv Lal with fraudulent intention was reversed and it was held that the finding of fraud was based upon no evidence and no particulars of fraud were furnished. The appellate Court further found that the agreement of sale in favour of the plaintiffs specifically mentioned that if Piare Lal was able to deliver the vacant possession the plaintiffs will have to pay Rs. 3000/- and if symbolical then Rs. 2400/-. Even the plaintiffs filed a suit for specific performance on payment of Rs. 2400/- and sought only relief of symbolical possession. The plaintiffs did not allege in the previous suit that they were entitled to physical possession on payment of Rs. 3,000/-. The plaintiffs were held entitled to only symbolical possession in judgment Exhibit P-1 by which their suit for specific performance was decreed and it is noteworthy to mention here that Shiv Lal defendant No. 1 was a party to the suit.
(3.) HAVING gone through the findings recorded by the Courts below and after perusing the record, this Court is of the considered opinion that the suit of the plaintiffs for possession of the shop in dispute has rightly been dismissed by the appellate Court. Without going into the question whether Piare Lal had legal right or not to induct Shiv Lal as tenant after the execution of the agreement of sale, the finding of tenancy prior to the execution of the agreement of sale is certainly based upon trustworthy evidence brought on the record of the case. The plea of the plaintiffs that it was Budh Ram who was in occupation of the shop in dispute and that he got electric connection does not stand substantiated because Budh Ram produced receipts of rent upto June 1961 only whereas agreement of sale took place on 27.12.1962. If Budh Ram had remained in possession of the shop in dispute after June, 1961, he would have produced the receipts for the period beyond 1961. On the other hand, the receipt Exhibit P-31 brought on the record of the case by Shiv Lal respondent No. 1 shows the payment of rent from 1.11.1962 to 31.10.1963. The signatures of Piare Lal on this receipt could not be denied. The necessary terms and conditions of the agreement of sale that Piare Lal would be entitled to Rs. 3000/- if he is able to give physical possession of the shop in dispute and he would be entitled to Rs. 2400/- only if he is unable to give physical possession is also a pointer to the fact that there was some problem in giving possession of the shop to the vendees. Again, the plaintiffs' claim to symbolical possession only on payment of Rs. 2400/- is another factor which cannot be lost sight of by the Courts below. The plaintiffs could very well claim a decree for possession on payment of Rs. 3000/- which was not done, particularly when Shiv Lal was party to the suit for specific performance. In fact, the claim of the plaintiffs to physical possession was ripe at the time when the suit for specific performance was filed and that too on payment of Rs. 3000/- to Piare Lal defendant. It appears that the plaintiffs very well knew that Shiv Lal defendant No. 1 is a tenant in the shop and for this reason alone they thought of enforcing their right of specific performance on payment of Rs. 2400/- only and later on thought of taking a chance of claiming a decree for possession against Shiv Lal tenant by describing him as a trespasser and without having a recourse to the provisions of Haryana Urban Rent Restriction Act. Since Lal defendant No. 1 has been found to be a tenant on the premises by the appellate Court on the date of agreement of sale and which finding is based upon good evidence and which finding this Court is inclined to endorse, Shiv Lal defendant No. 1 becomes a tenant of the plaintiffs and he can only be evicted on a ground which is available to a landlord under the provision of Haryana Urban Rent Restriction Act.;