High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

RSA Nos.288 of 2001 alongwith RSA

Nos.340 of 2007 and 59 of 2009

Reserved on: 08.09.2015

Date of Decision: 15.09.2015

1. RSA No. 288/2001

Kartar Chand ..Appellant

Versus

Khem Raj (since deceased) through LRs ..Respondent

2. RSA No.340/2007

Kartar Chand ..Appellant

Versus

Sanjay Kumar (since deceased) through LRs ..Respondents

3. RSA No.59 of 2009

Kartar Chand ..Appellant

Versus

Sanjay Kumar (since deceased) through LRs ..Respondents

Coram:

The Hon’ble Mr. Justice Dharam Chand Chaudhary , Judge.

Whether approved for reporting?

1

Yes.

For the Appellant: Mr. G.D. Verma, Senior Advocate

with Mr. B.C. Verma, Advocate .

For the Respondents: Mr. Bhupinder Gupta, Senior

Advocate with Ms. Charu Gupta,

Advocate.

___________________________ _________________

Whether reporters of the local papers may be allowed to see the judgment? Yes

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Dharam Chand Chaudhary, Judge

This judgment shall dispose of the present appeal

and also RSA No.340/2007 and 59/2009, invol ving common

questions of law and facts for adjudication and pertaining to

the same subject matter of dispute, i.e the land belonging to

respondents in this appeal, defendants in the trial Court.

2. The subject matter of dispute in all the three

appeals, are two Dharas (wooden structures) in existence

over the land measuring 0-01-15 hectares, entered in Khata

No.27/5, bearing Khasra No.2597/402, situate at village

Sangla, Tehsil Sangla, District Kinnaur, Himachal Pradesh.

Appellant in this appeal filed Civil Suit No.10-1 of 1997

against the respondents for specific performance of

agreement dated 3.12.1995. The respondents in the present

appeal are admittedly the owners of the suit land. A portion

thereof was allegedly rented out by sole defendant Khem Raj

(since dead) to appellant-plaintiff. He raised construction of

two Dharas over that portion of the suit land rented out by

said Shri Khem Raj to him. Later on, said Shri Khem Raj

proposed to construct a pucca building over the suit land on

demolition of one of the Dharas constructed by the appellant-

plaintiff. As per mutual understanding, in the another Dhara

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the appellant-plaintiff had to run his business and as and

when the construction of the RCC building is complete, to rent

out two shops at monthly rent of Rs.7000/- per shop to the

appellant-plaintiff in the said building. It was agreed upon

that on the failure of said Shri Khem Raj, the deceased

defendant, to rent out two sho ps, the appellant-plaintiff

entitled to claim damages at the rate of Rs.5000/- per month

from him from the date of refusal to induct him as tenant in

two shops. An agreement Ext.PW1/A to this effect came to

be executed between the parties on 3.12.1995. The

deceased defendant allegedly refused to induct the appellant-

plaintiff as tenant in two shops in the newly constructed

building on the completion of construction work, hence suit

for the decree of specific performance of the agreement and

in the alternative for recovery of damages at the rate of

Rs.5000/- per month w.e.f. January, 1997 onwards, firstly for

a period of five years and thereafter till possession of two

shops in the newly constructed building is handed over to the

appellant-plaintiff.

3. Deceased defendant contested the suit and denied

the execution of agreement Ext.PW1/ A on the grounds that

the same is result of fraud, coercion and undue influence and

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without his consent. Also that the suit land is joint property

with his brothers S/Shri Vidya Singh and Sanjay Kumar and

as they were not impleaded as party in the suit, hence the

suit was said to be bad for non-joinder of necessary parties.

While admitting that the appellant-plaintiff was inducted as a

tenant in two Dharas, it is submitted that the same were

constructed by the defendant and his brothers and he was

tenant of all of them. The tenancy was stated to be

determined by issuing notice under Section 106 of the

Transfer of Property Act to the appellant-plaintiff and a suit

for his eviction was also filed. It is also pleaded in the written

statement that the deceased defendant Khem Ra j was not

constructing RCC building over the suit land alone, but the

same was being raised by all the co-sharers.

4. Learned trial Court framed the following issues in

the suit:

1. Whether defendant No.1 is liable to

specifically perform the terms of the

agreement dated 3.12.1995 and whether

defendant is liable to restore possession of

two shops situated over Khasra

No.2597/402 at village Sangla to the

plaintiff on annual rent of Rs.7,000/- per

shop for a period of five years, as alleged?

OPP

2. Whether plaintiff is entitled in the

alternative for penalty/damage at the rate

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of Rs.5,000/- per month, per shop w.e.f.

January, 1997 onwards, as alleged? OPP.

3. Whether suit is not maintainable in the

present form? OPD

4. Whether this suit is bad for non-joinder of

necessary parties? OPD.

5. Whether defendant is not competent to

enter into any agreement exclusively in this

disputed property, as alleged? OPD.

6. Whether plaintiff is estopped from filing the

suit on account of his act and conduct, as

alleged? OPD.

7. Relief.

5. After holding full trial, the suit was decreed for

specific performance of the agreement with a direction to the

respondents-defendants to hand over the possession of two

shops in the newly constructed building on monthly rent of

Rs.7000/- per shop for a period of five years, failing which

damages at the rate of Rs.5000/- per month w.e.f. January,

1997 for a period of five years or till possession of two shops

is restored to the appellant-plaintiff.

6. In appeal, learned District Judge has, however,

reversed the judgment and decree passed by learned trial

Court and dismissed the suit, hence, the present appeal with

a prayer to set aside and quash the impugned judgment and

decree being legally and factually unsustainable.

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7. This appeal has been admitted on the following

substantial questions of law:

1. Whether the first Appellate Court was wrong

in concluding that the execution of

agreement Ext.PW1/A was a result of fraud

though the particulars of fraud has neither

been pleaded nor proved by the opposing

side?

2. Whether the findings of the first Appellate

court on the alleged violation of the

provisions of H.P. Transfer of Land

(Regulations) Act, 1968, are wrong in the

absence of any issue being pleaded or

settled by the Courts below and as such the

said findings have caused miscarriage of

justice to the appellant?

3. Whether the finding recorded by the first

Appellate Court is vitiated on account of

misreading and misconstruction of pleadings

led by the parties?

2. RSA No.340/200 7

8. This appeal is directed against the judgment and

decree dated 18.4.2007, passed by learned District Judge,

Kinnaur at Rampur in Civil Appeal No.44 of 2004. The

appellant, hereinafter is again Shri Kartar Chand, appellant in

RSA No.288 of 2001, supra. As a matter of fact, he filed Civil

Suit No.55-1 of 2003 in the Court of Civil Judge (Senior

Division), Kinnaur, at Recong Peo, for a decree of permanent

prohibitory and mandatory injunction, seeking thereby a

direction to the respondents (defendants in the trial Court)

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not to evict him from the Dharas situated over the suit land

same as in Civil Suit No.10-1 of 1997 and to restrain them

from roofing the building allegedly constructed by

respondent-defendant No.4, in connivance with respondents-

defendants No.1 to 3 with GI sheets vertically and to roof the

same horizontally by laying slab so that during winter season

snow does not collect thereon and fall on the Dharas in his

possession. He has also pressed into service the same

agreement, i.e. dated 3.12.1995 having be en executed by

Khem Raj defendant No.1 (since dead), agreeing thereby to

put him in possession of two shops in the newly constructed

building over the suit land by demolition of one of the Dharas,

he had constructed from his own funds, after the suit land

was rented out to him by said Khem Raj. As per his further

case new RCC building though was constructed, however he

has not been given possession of two shops as agreed upon

and appeal qua enforcement of agreement (RSA

No.288/2001) is pending in the High Court.

9. It is seen from the facts of this case that the

property in dispute is the same as in RSA No.288/2001. The

support has also been drawn by the appellant -plaintiff from

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that very agreement, the execution whereof is in dispute in

the above appeal. The parties are also the same.

10. On the other hand, defence of the respondents-

defendants is that the tenancy in favour of the appellant -

plaintiff stands determined under Section 106 of the Transfer

of Property Act and as such they are legally entitled to evict

him from the wooden Dharas in his possession under the due

process of law. Also that a separate suit filed for his eviction

is pending disposal in the trial Court. According to

respondents-defendants, they have not raised any

construction over the suit land and rather it is the wife of

defendant No.4, who has constructed a building over a

portion of the suit land, alienated in her favour by way of oral

sale. The roof of that building is already thatched with GI

sheets, however, not vertically, as it is not possible to lay

vertical roof. The allegation qua accumulation of snow on the

roof of the building so constructed and thereby likelihood to

cause damage to the life and property is denied being wrong.

In the suit so filed, the following issues were framed:

1. Whether the plaintiff is entitled to the relief

of permanent prohibitory injunction, as

prayed for? OPP

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2. Whether the plaintiff is entitled to the relief

of mandatory injunction, as prayed for?

OPP.

3. Whether the plaintiff has no cause of action

to file the present suit? OPD

4. Whether the plaintiff is estopped from filing

the present suit by his act and conduct?

OPD.

5. Whether the plaintiff has no locus standi to

file the present suit? OPD

6. Whether the suit is bad for min-joinder and

non-joinder of parties, as alleged? OPD.

7. Relief.

11. Learned trial Court after holding full trial,

dismissed the suit and Civil Appeal No.44 of 2005, filed

against the judgment and decree passed by learned trial

Court also met the same fate, hence the present appeal f or

quashing the judgment and decree so passed by learned

lower appellate Court.

12. This appeal has been admitted on the following

substantial question of law:

“Whether appellant being a tenant under the

defendants No.1 to 3 is entitled to relief of

injunction against defendants so that he was not

dispossessed from the tenanted premises except

through due process of law?”

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3. RSA No.59 of 2009

13. This is third appeal, having arisen from the

judgment and decree dated 20.4.2007, passed by learned

District Judge, Kinnaur in Civil Appeal No. 13 of 2004. As a

matter of fact, Shri Khem Raj (since dead), the predecessor-

in-interest of the respondents, herein had filed a Civil Suit

No.21-1 of 2001 against the appellant-defendant in the trial

Court for his eviction from the wooden Dharas, subject matter

of dispute in the present lis. It is thus seen that in this case

also, the suit land is the same and the Dharas are also the

same, the subject matter of dispute in aforesaid two appeals.

The suit herein was filed by deceased plaintiff Khem Raj for

eviction of the appellant herein from the Dhara and also for

recovery of Rs.9750/- towards arrears of rent from April,

1997 to 31.7.2001 at the rate of Rs.250/- per month. The

tenancy was determined on and w.e.f. 31.7.2001 by serving

the appellant-defendant with 15 days notice, issued on

3.7.2001 under Section 106 of the Transfer of Property Act.

He, however, failed to hand over the vacant possession of the

Dhara even after the receipt of the notice. His possession has

been claimed to be unauthorized, hence the suit was filed for

his eviction from the Dhara and a sum of Rs.950/- per month

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was claimed towards use and occupation charges w.e.f.

1.8.2001, the date when tenancy stood determined till

21.8.2001, when the suit was instituted.

14. The appellant-defendant had contested the suit on

those very grounds as in Civil Suits No.10-1 of 1997 and 55-1

of 2003, he filed for specific performance of the agreement

dated 3.12.1995 and permanent prohibitory as well as

mandatory injunction respectively, as according to him

deceased plaintiff Khem Raj had rented out the suit land to

him and he thereafter raised construction of Dharas thereon.

It is denied that he is in arrears of rent as according to

appellant-defendant, the rent was being paid regularly to the

plaintiff upto March, 1997, however, thereafter from April,

1997, he refused to accept the same. In the suit, following

issues were framed:

1. Whether the plaintiff is entitled to decree of

eviction, as alleged? OPP.

2. Whether the plaintiff is entitled to arrears of

rent and charges of unauthorized use and

occupation of demised premises, as alleged?

OPP.

3. Whether the suit is not maintainable? OPD

4. Whether the suit is bad for non-joinder of

necessary parties? OPD.

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5. Whether the plaintiff has no locus-standi to

file present suit? OPD.

6. Whether the suit is within limitation? OPD

7. Whether this suit is liable to be dismissed

for want of legal and proper notice? OPD

8. Whether no proper court fee has been

affixed for the purposes of jurisdiction and

valuation of suit? OPD.

9. Whether plaintiff has no cause of action? OPD

10. Whether the plaintiff is estopped from filing

the present suit by his act and conduct?

OPD.

11. Relief.”

15. After taking on record the evidence, as produced

by the parties on both sides, only a decree for recovery of

Rs.9750/- towards arrears of rent w.e.f. August, 1998 to July,

2001, was passed by learned trial Court and the relief qua

eviction of appellant-defendant from the Dhara was declined

vide judgment and decree dated 20.11.2003.

16. The judgment and decree passed by learned trial

Court was assailed in the Court of learned District Judge,

Kinnaur at Rampur, by filing Civil Appeal No.13 of 2004.

Learned lower Appellate Court has allowed the appeal and

decreed the suit of the plaintiff for vacant possession of the

suit land alongwith arrears of rent to the tune of Rs.9750/-

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and use and occupation charges amounting to Rs.17,000/ -.

Meaning thereby that the suit was decreed, as a whole

against the appellant-defendant.

17. The appellant-defendant has challenged the

judgment and decree passed by learned lower appellate Court

on several grounds before this Court in the present appeal.

18. This appeal has been admitted on the following

substantial questions of law:

1. Whether for want of legal and valid notice

under Section 106 of the Transfer of

Property Act, decree for possession could

not be passed by the learned District Judge

because tenancy was claimed to have been

terminated w.e.f. 31.7.2001, whereas 15

days period was required to be given?

2. Whether agreement Ext. DW -1/A has

wrongly been ignored from consideration by

learned District Judge below, though the

same was relied upon by the learned trial

Court and thus, jurisdiction has not been

exercised by learned district Judge lawfully?

3. Whether the Ext.DW1/A, agreement, has

been set up by the appellant and the same

has been duly proved by DW-1 Kartar chand

and DW-2 Sh. Harish Chander and

therefore, same cannot be lawfully ignored

from consideration as has been done by the

learned District Judge below?

4. Whether in view of Ext. DW -1/A the

duration of tenancy was for 5 years and

therefore, plaintiff could not claim eviction

keeping in view the agreement Ext.DW1/A

whereby plaintiff had agreed to give 2 RCC

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shops on rent to the plaintiff and a lso

provisions of Section 53 A of Transfer of

Property Act?

5. Whether in view of agreement Ext.DW1/A

appellant is entitled to retain possession and

he cannot be dispossessed from the

property in suit?”

19. When this appeal came to be listed for final

hearing, keeping in view the subject matter of dispute

common in the remaining two appeals, i.e. 340/2007 and

59/2009, aforesaid, the same were also ordered to be tagged

therewith for hearing.

20. Before coming to merits of the case, it is worth

while to mention here that in an application registered as CMP

No.334/2008 in RSA No.340 of 2007 for appointment of

guardian ad litem to look after the interest of Shri Vidya

Singh, respondent No.2, allegedly minor, learned Civil Judge

(Senior Division), was directed to ascertain the fact as to

whether respondent No.2 is in a fit mental condition to look

after his affairs or not. Also that if the said respondent is

suffering from mental ailment, since when and the extent

thereof. Learned Civil Judge (Senior Division) had conducted

inquiry and submitted the report which came to be considered

on 14.5.2009, when the following order came to be passed:

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“RSA 340 of 2007

Pursuant to the order passed by this

Court on 2

nd

March, 2009, report of the Civil

Judge (Senior Division), Reckongpeo has been

received. The learned Judge has personally

examined respondent No.2 Vidya Singh and

found that he is unable to look after his

interests. He has reported that according to

the information imparted to him by those

looking after Vidya Singh, with whom he

interacted, the respondent after failing in

matriculation examination in the year 1987 -

88, lost his mental balance and at present he

is not in a position to look after his affairs.

From the record of the trial Court and

appellate Court, I find that respondent No.2

Vidya Singh has been represented in his

individual capacity by learned counsel. Surely

if the report submitted by the leaned Civil

Judge (Senior Division) is correct and I have

no reason to doubt it, the very maintainability

of the suit would be doubtful because the

basic question for determination is as to how

and in what capacity did the counsel represent

respondent vidya Singh n the suit when he

was unable to look after his affairs and

understand his welfare etc. This question will

be determined and decided at the time of

hearing of this appeal.

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CMP No.334 of 2008

Let notice of this application be issued

to the proposed guardian(s) ad litem as

named in paragraph 3 of this application.”

21. The application CMP No.334 of 2008, came to be

disposed of vide order p assed on 3.5.2012, appointing

thereby Smt. Raj Bhagti, the wife of respondent No.2 Vidya

Singh, to act as his next friend.

22. Since the question of maintainability of the suit on

account of minority of one of the defendants -respondents

Vidya Singh aforesaid was left open to be decided at the time

of hearing of the appeal, therefore, the following order came

to be passed in this appeal on 5.5.2015:

“While going through the record, particularly

that of connected appeal RSA No .340 of

2007, it transpired that respondent No.2

Vidya Singh being of unsound mind is minor.

On a report made by Postman on the

registered AD cover carrying notice to the

said respondent it transpired that he is

mentally unfit. This has led in issuance of a

direction to Civil Judge (Senior Division),

Kinnaur at Reckong Peo vide order dated 2

nd

March, 2009 passed in RSA No.340 of 2007

to ascertain the fact as to whether

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respondent No.2 is in a fit mental condition

to look after his affairs or not. The report so

sought was received and examined on the

next date, i.e., 14

th

May, 2009 and on the

basis thereof it has been noticed that after

having failed in matriculation examination in

the year 1987-88, the said respondent lost

mental balance. The observations of this

Court in the order passed on that day read

as follows:

“xxxx xxx xxx xxx

From the record of the trial Court

and appellant Court, I find that

respondent No.2 Vidya Singh has been

represented in his individual capacity by

learned counsel. Surely if the report

submitted by the learned Civil Judge

(Senior Division) is correct and I have

no reason to doubt it, the very

maintainability of the suit would be

doubtful because the basic question for

determination is as to how and in what

capacity did the counsel represent Vidya

Singh in the suit when he was unable to

look-after his affairs and understand his

welfare etc. This question will be

determined and decided at the time of

hearing of this appeal.”

Subsequently, vide order passed on

3

rd

May, 2012 in CMP No.334 of 2008 (RSA

No.340 of 2007), after taking note of the report

submitted by learned Civil Judge (Senior

Division), one Smt. Raj Bhagti has been ordered

to act as his next friend. To the contrary in the

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order passed on 22

nd

May, 2012 in connected

appeal RSA No.59 of 2009 after noticing that

respondent Vidya Singh has filed Execution

Petition, he is to be treated to be of sound mind

and deemed to have been served personally in

the said appeal. Although in this appeal (RSA

No.288 of 2001) Vidya Singh is not a party, yet

the fact remains that the property in dispute in

this appeal is the same as in the connected

appeals. All these questions need to be looked

into during the course of arguments.

Learned Counsel on both sides seek

time to go through the record. Allowed.

List on 23

rd

June, 2015.

Copy Dasti.”

23. Learned counsel, on both sides, have addressed

this Court on the question of maintainability of the suit in

view of the minority of respondent-defendant Vidya Singh.

Analyzing the rival submissions and also the record, it is seen

that said Shri Vidya Singh was not a party in Civil Suit No.10-

1 of 1997 filed by Shri Kartar Chand for specific performance

of agreement dated 3.12.1995 nor in Civil Suit No.21 -1 of

2001 filed by Khem Raj (since dead), brother of said Shri

Vidya Singh for eviction of the appellant herein. Therefore,

the minority of respondent -defendant Vidya Singh has

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nothing to do with the above said two Civil Suits. No doubt

he was one of the defendants in Civil Suit No.55-1 of 2003

filed by Shri Kartar Chand, appellant against Khem Raj (since

dead), Sanjay Kumar and Ravinder Singh for a decree of

permanent prohibitory and mandatory injunction. However,

the suit and the appeal both have been dismissed by learned

trial Court and learned lower Appellate and as such even in

this suit also, no adverse order has been passed against said

Shri Vidya Singh. So far as this appeal is concerned, Smt. Raj

Bhagti, his wife has been appointed as his next friend to

protect his interest. Therefore, there being no impact of the

minority of respondent-defendant Vidya Singh in all the three

suits, the same are maintainable.

24. While Shri G.D. Verma, learned Senior Advocate,

appearing on behalf of the appellant contends that the

execution of the agreement dated 3.12.1995 is duly proved

and as such the suit for specific performance of the

agreement filed by the appellant should have been decreed

with direction to the respondents to put the appellant in

possession of two shops in the newly construct ed RCC

building, as agreed upon and also that neither the tenancy of

the plaintiff is determined in accordance with law nor he is

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liable to pay arrears towards rent or use and occupation

charges in respect of the wooden Dhara in his possession, Mr.

Bhupender Gupta, learned Senior Advocate, representing the

respondents has urged that the agreement has never been

executed by deceased Khem Raj and rather it is result of

fraud, coercion and mis -representation. Also that the

execution of agreement is not at all proved, hence the same

is not legally admissible. Mr. Gupta has further urged that

the tenancy of the appellant having already been determined

in accordance with law, he has rightly been ordered to be

evicted from the Dharas in dispute on payment of arre ars

towards rent and use and occupation charges vide judgment

and decree dated 20.4. 2007, passed by learned lower

Appellate Court in Civil Appeal No.13/2004 under challenge in

RSA No.59/2009. It has also been urged that the appellant is

not entitled to the relief of specific performance of agreement

nor permanent prohibitory injunction and rather liable to hand

over the vacant possession of the Dhara in existence over the

suit land under his use and occupation and also the payment

of arrears of rent as well as use and occupation charges.

25. On analyzing the rival submissions and also the

material on record, it is seen that the 1

st

substantial question

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of law in this appeal and substantial questions of law at Sl.

Nos.2, 3, 4 and 5 in connected appeal RSA No.59 of 2009,

pertain to the execution of agreement which in this case is

Ext. PW1/A whereas in RSA No.59 of 2009 Ext. DW1/A and

admissibility thereof in evidence.

26. The suit land admittedly is in the joint ownership

and possession of the respondents herein. Th e execution

agreement even if stands proved in accordance with law, the

same having been only executed by Khem Raj (since dead) in

exclusion of his two brothers/co-sharers S/Shri Vidya Singh

and Sanjay Kumar, the predecessors -in-interest of

respondents No.1(a) to 1(c) herein, cannot be enforced

against the remaining co-owners. Therefore, there is no

question of agreement Ext.PW1/A having been acted upon, as

is argued on behalf of the appellant. Otherwise also, the

execution of the agreement is not at all p roved, as the

evidence produced by the appellant -plaintiff in Civil Suit

No.10-1 of 1997, out of which this appeal has arisen , no

doubt is consisting of oral as well as documentary, however,

not worthy of credence nor it is proved from the perusal

thereof that deceased Khem Raj had executed an agreement

in favour of appellant Kartar Chand voluntarily.

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27. PW-2 Anmol Singh is the scribe of Ext.PW1/A.

According to him, the agreement is in his hand and bears his

signature. If his cross-examination is seen, interestingly

enough, no one, including deceased Khem Raj, the executant,

was present at the time when he reduced the agreement into

writing. Marginal witnesses were also not present. PW-3

Harish Chander is a marginal witness to this document. As

per his examination-in-chief the agreement in question was

executed between the parties on 3.12.1995 and the same

was reduced into writing by Anmol Singh (PW2) in his

presence and also in that of another marginal witness Shri Raj

Gopal. Deceased Khem Raj and appellant Kartar Chand were

also present. The agreement was reduced into writing at the

instance of deceased Khem Raj. The scribe Shri Anmol Singh

had read over the same and it was firstly signed by deceased

Khem Raj and thereafter by Kartar Chand. According to this

witness, the agreement was signed by him in the last. His

testimony in cross-examination, however, demolishes his

statement in examination -in-chief because in cross -

examination he tells us that when he reached in the house of

the scribe, the agreement was being reduced into writing.

Although it was read over by the scribe, however, he did not

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pay much heed to the contents thereof. His testimony to this

effect at the most is suggestive of that the document was

being reduced into writing, when he re ached there. He

cannot also be said to be conversant with the contents of the

agreement as he did not pay much heed, when the same was

being read over by the scribe. In such a situation, the

version of scribe Anmol Singh, seems to be nearer to the

factual position. Meaning thereby that the agreement had not

been reduced into writing in the manner as claimed by the

appellant-plaintiff.

28. The plaintiff no doubt has supported his case

while in the witness box as PW -1 qua execution of the

agreement Ext.PW1/A, however, in view of the statement of

the scribe, who has neither been declared hostile nor cross-

examined, it is clear that the agreement was reduced into

writing in the absence of defendant Khem Raj and also the

witnesses. Therefore, it would not be improper to conclude

that the agreement is the result of fraud and

misrepresentation. No doubt the deceased defendant Khem

Raj while in the witness box as DW -1 has admitted his

signature over agreement Ext.DW1/A, however, the same is

not sufficient to conclude that he executed the agreement

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voluntarily. Otherwise also, he had no authority to execute

the agreement making thereby some commitment qua the

property, which does not belong alone to him, but other co -

sharers also. Therefore, the agreement even if believed to be

executed by deceased defendant Khem Raj could have not

been enforced against his brother Sanjay Kumar and

Vidya Singh.

29. I am also not in agreement with the arguments

addressed on behalf of the appellant-plaintiff that there is

neither pleading nor proof qua fraud or misrepresentation for

the reason that in the written statement it has specifically

been pleaded that the agreement is the result of fraud ,

coercion and undue influence etc. It has even been so proved

from own evidence produced by the plaintiff himself.

30. Agreement Ext.PW1/A is even hit by the

provisions contained under Section 3 of the H.P. Land

(Regulation) Act, 1968, because the suit land being situated

in tribal area could have not been mortgaged, leased out or

gifted to any person not belonging to tribal area, except for

the previous permission , in writing, of the Deputy

Commissioner. The provisions ibid read as follows:

“3. Regulation of transfer of land.- (1) No person

belonging to a Scheduled Tribe transfer his interest in

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any land by way of sole mortgage lease, gift or otherwise

to any person not belonging to such tribe except with the

previous permission in writing of the Deputy Commission.

Provided that nothing in this sub-section shall

apply to any transfer-

(a) by way of lease of a building on rent;

(b) by way of mortgage, for securing loan, to any

Co-operative Land Mortgage Bank or Co-operative

society, all or a majority of the members of which

are persons belonging to any Scheduled Tribe;

(c) by acquisition by the State Government under

the Land Acquisition Act, 1894.(1 of 1894).

(2) Every transfer of interest in land made in contravention

of the provisions of sub-section (1) shall be void.”

31. True it is that consequent upon order dated

8.3.2013 passed in this appeal, an additional issue, which

reads as follows, was framed and the report of lower

Appellate Court sought thereon:

“Whether the agreement Ext.PW1/A is contrary to

and prohibited by the provisions of Section 3 of

the Himachal Pr adesh Transfer of Land

(Regulation) Act, 1968, if so, its effect? Onus on

the parties”

32. In the report submitted on the additional issue,

learned District Judge has arrived at a conclusion that the

lease being of a built up structure was not barred under

Section 3 of the Act ibid. The respondents -defendant,

however, have filed objections to the report so submitted by

learned lower Appellate Court. I find force in the objections so

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raised for the reason that in the present case as per own case

of the plaintiff wooden structures (Dharas) were constructed

by him over a portion of the suit land rented out by deceased

defendant Khem Raj, out of his own funds. Therefore, the

present is not a case where some built up structure had been

rented out to the appellant-plaintiff, but as a matter of fact, it

is the land which was rented out to him and admittedly, the

Dharas thereon were constructed by him out of his own

funds. In terms of Section 3 of the Act ibid, the land situated

in tribal area cannot be mortgaged, leased out or gifted to

any person not belonging to such area. The appellant-plaintiff

is not the resident of District Kinnaur and rather resident of

village Ghanal, Tehsil and District Hamirpur, H.P., of course

was running a Dhaba at Sangla. Therefore, on this score also,

agreement Ext.PW1/A being hit by the provisions contained

under Section 3 of the Act ibid cannot be treated to be a

document executed legally and validly.

33. As already pointed out, deceased defendant

Khem Raj could not bind the other co -sharers viz.,, his real

brothers S/Shri Sanjay Kumar and Vidya Singh, by executing

such agreement. The appellant -plaintiff, therefore, is not

entitled to seek the enforcement of agreement Ext.PW1/A and

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his claim has rightly been discarded by learned lower

appellate Court in this case, by dismissing the suit, he field

for the decree of specific performance of contract and also in

Civil Suit No. 21-1 of 2001, whereby decree for his eviction

from the Dharas in question has been passed, while

discarding his claim qua commitment made by the deceased

defendant Khem Raj to put him in possession of two shops in

the newly constructed RCC building. Therefore, learned lower

appellate Court has rightly concluded that the agreement

Ext.PW1/A is result of fraud.

34. On behalf of the appellant-plaintiff reliance has

been placed on the judgment of this Court in Mt. Basanti Vs.

Pholo, AIR 1955 HIM 37 and that of Punjab and Haryana

High court in The Oriental Fire and General Insurance Co.

Ltd. Chandigarh Vs. Smt. Chandrawali an d others, AIR

1989 Punjab and Haryana 300 . With due regard to the

propositions of law involved and settled therein, the same

have no application in the given facts and circumstances of

this case. The judgment of Hon’ble Apex Court in K.B. Saha

and Sons P vt. Limited Vs. Development Consultant

Limited, (2008) 8 SCC 564 , is also not applicable to the

present case.

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35. Therefore, no legal question i.e, first Substantial

question of law in this appeal and substantial questions of law

No.2 to 5 in connected appeal RSA No.59/2009 arise for

adjudication.

36. Now if coming to 2

nd

substantial question of law in

this appeal, in view of the findings recorded hereinabove, the

agreement Ext.PW1/A, even if believed to be executed by

deceased Khem Raj, the same is violative of t he provisions

contained under Section 3 of the H.P. Transfer of Land

(Regulations) Act, 1968, because in tribal area no land can be

rented out to a person not belonging to tribal area.

Therefore, on this score also, the appellant-plaintiff cannot be

said to be aggrieved in any manner whatsoever.

37. If coming to 3

rd

substantial question of law in this

appeal, there is no question of misreading and mis -

appreciation of the pleadings and evidence available on record

and rather learned lower appellate Court has appreciated the

pleadings of the parties and evidence available on record in

its right perspective. In view of the testimony of PW-2 and

PW-3, the material witnesses in this case, no other and

further view of the matter, except for the one taken by

learned lower appellate Court, could have been taken.

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38. Therefore, the judgment and decree under

challenge in this appeal cannot be said to be legally or

factually unsustainable nor the findings recorded can be said

to be perverse and as such, the impugned judgmen t and

decree deserve to be upheld.

39. Now if coming to 1

st

substantial question of law in

connected appeal RSA No.59 of 2009, the provisions

contained under Section 106 of the Transfer of Property Act,

provide that in absence of contract to the contrary, tenancy

has to be treated from month to month basis and can be

determined either by the lesser or lessee by serving with 15

days notice. The period of 15 days, of course, will commence

from the date of receipt of the notice, as provided under sub-

section (2) of Section 106 of the Transfer of Property Act. In

Civil Suit No.21-1 of 2001, deceased Khem Raj had issued

notice Ext.PW5/B under Section 106 of the Transfer of

Property Act in June, 2001, to determine the tenancy in

respect of the Dhara rented out by him to appellant Kartar

Chand. The notice has been booked by the Post Office for its

destination on 29.6.2001 as is apparent from the postal

receipt Ext.PW5/C. As per notice Ext.PW5/B, the tenancy was

determined/terminated w.e.f. 31.7.2001. There is no dispute

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qua receipt thereof because as per own testimony of Kartar

Chand, plaintiff herein, defendant in that suit and stepped

into the witness box as DW-1, notice was received by him on

3.7.2001. Meaning thereby that between 3.7.2001 to

31.7.2001, he had clear cut 15 days notice, as required for

determination/termination of the tenancy. The complaint is

that he has failed to pay the rent on and after April, 1997. It

is stated so by PW-1 Smt. Raj Bhakti, who is co-wife of all the

three brothers, i.e. deceased Khem Raj, Vidya Singh and

Sanjay Kumar, the owners of the suit property. Even

deceased plaintiff Khem Raj has also stated so while in the

witness box as PW-5. As per further case set out by the

plaintiffs-owners (respondents herein), they were no more

interested to rent out the Dhara in question any further to the

appellant. The appellant, defendant in that suit while in the

witness box has ruled out the averments qua non-payment of

rent, as according to him it is the respondents-plaintiffs, who

failed to accept the rent from April, 1997 onward. Meaning

thereby that he has admitted the non-payment of rent from

April, 1997 onwards. Otherwise also, the payment or non -

payment of rent is immaterial because the tenancy was on

month to month basis and either side could have terminated/

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determined the same by serving with 15 days prior notice.

Therefore, the appellant has no legal right to remain in

possession of the Dhara in question on and w.e.f. 31.7.2001,

the date when the tenancy stood terminated vide n otice

Ext.PW5/B. Learned trial Court, therefore, has not committed

any illegality while decreeing the suit for possession of the

Dhara in question, in favour of the respondents herein,

together with the decree for recovery of arrears of rent and

use and occupation charges.

40. There is no question of applicability of Section 53A

of the Transfer of Property Act in this case, because in view of

the findings recorded in this judgment hereinabove, the

execution of agreement Ext.DW1/A is not at all proved nor

the same can be acted upon and as such, the appellant

cannot press in service the provisions contained under Section

53 A of the Act to protect his possession over the Dharas in

question.

41. Therefore, the question that the eviction of

appellant from the Dhara in question is illegal for want of

legal and valid notice, does not arise for determination.

42. Now there remains the only substantial question

of law formulated in connected appeal RSA No.340/2007. As

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noticed supra, this appeal has been admitted on the legal

question that the appellant being a tenant under the

respondents-defendants is entitled to the relief of injunction

against them so that he is not dispossessed from the Dharas,

save and except through due process of law. In view of the

findings hereinabove, recorded in this judgment while

deciding the 1

st

substantial question of law in RSA No.59 of

2009, it has been held that the tenancy in favour of the

appellant qua the Dhara in dispute stands terminated by

issuance of a legal and valid notice under Section 106 of the

Transfer of Property Act. In that case the decree for

possession of Dhara on termination of the tenancy has been

passed in favour of the respondents b y learned lower

appellate Court. This Court does not find any illegality or

irregularity with the findings so recorded by learned lower

appellate Court. Therefore, the appellant is not entitled to the

relief of permanent prohibitory injunction against the

respondents, as the suit filed by the defendants for

possession of the Dhara in question has been decreed against

him and in the Appeal RSA No.59 of 2009, no legal question

has been found to be involved and as such the decree so

passed deserves to be upheld. Consequently, no interference

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is warranted so far as dismissal of the suit filed by appellant

for the relief of permanent prohibitory injunction by both

Courts below is concerned. The appellant having already

been ordered to be evicted from the Dhara in question under

due process of law is not entitled to the relief of permanent

prohibitory injunction. Therefore, the decree under challenge

in RSA No.340 of 2007 also calls for no interference by this

Court.

43. In view of what has been said hereinabove, the

judgment and decree under challenge in this appeal and also

in RSA No.340 of 2007 and 59 of 2009 do not suffer from any

illegality or irregularity and the same rather have been passed

on proper appreciation of the given facts and circumstances,

evidence available on record and the law applicable in its right

perspective. No question of l aw, much less substantial

questions of law, formulated in these appeals, therefore, arise

for adjudication. On the other hand, the findings recorded by

learned lower appellate Court being not vitiated or perverse

deserve to be upheld.

44. For all the reasons hereinabove, this appeal and

also the connected appeals, i.e. RSA Nos.340 of 2007 and 59

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of 2009 fail and are accordingly dismissed. There is,

however, no order so as to costs.

An authenticated copy of this judgment be placed

on the record of RSA Nos. 340 of 2007 and 59 of 2009.

All the appeals stand disposed of accordingly.

September 15, 2015. (Dharam Chand Chaudhary),

(ss) Judge

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