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PARMOD GOYAL, J. (ORAL) –

Present regular second appeal has been preferred by appellant/defendant being aggrieved by judgment and decree dated 02.02.1999, passed by learned District Judge, Faridabad whereby first appeal preferred by respondent/plaintiff against judgment and decree dated 20.02.1998, passed by learned Civil Judge (Senior Division), Faridabad vide which suit for possession by way of ejectment and recovery preferred by respondent/plaintiff was dismissed, was set aside and suit of respondent/plaintiff was decreed by learned First Appellate Court.

2. The case set up by respondent/plaintiff in his suit for possession by way of ejectment and recovery was to the effect that he is owner of suit property i.e. house within revenue estate of Village Unchagaon, Tehsil Ballabgarh, District Faridabad. After construction of house over the suit property, same was given to appellant/defendant on a monthly rent of Rs.250/- in the year 1986. However, since April, 1990 appellant/defendant had stopped paying rent and was in arrears of Rs.8,200/- on the date of filing of suit. Accordingly, respondent/plaintiff has sought possession along with decree of recovery of Rs.8,200/- as arrears of rent and Rs.800/- as mesne profits for use and occupation of the house after termination of tenancy which was terminated vide legal notice dated 10.09.1993.

3. The suit was contested by appellant/defendant by raising preliminary objections with regard to maintainability of suit etc. On merits, tenancy was denied in totality. It was asserted that it is appellant/defendant who is owner in possession of suit property in view of purchase by appellant/defendant from respondent/plaintiff @150 per square yards about 9 years ago from the date of filing of written statement. It was asserted that 50% value was paid to respondent/plaintiff and possession was taken by appellant/defendant and since then appellant/defendant is residing there. That remaining 50% was also paid subsequently. Tenancy and right to seek possession were denied. Accordingly, dismissal of suit was prayed.

4. From the pleadings of parties, following issues were framed :-

1. Whether plaintiff is owner of suit house as fully described in para No.1 of the plaint? OPP

2. Whether suit house was constructed by the plaintiff in the year 1986? OPP

3. Whether suit house was let out in favour of defendant in the year 1986 on monthly rent of Rs.250/-?

4. Whether defendant was in arrears of rent of Rs.8200/- ?

5. Whether the tenancy of the defendant has been terminated vide legal notice dt. 10.9.1993? OPP

6. Whether plaintiff is entitled for recovery of Rs.10,600/- as arrears of rent and mesne profits? OPP

7. Whether suit is not maintainable as there is no relationship of landlord and tenant between the parties? OPD

8. Whether plaintiff has no locus standi to file this suit? OPD

9. Whether the suit of the plaintiff is without any cause of action? OPD

10. Whether defendant has paid entire sale consideration with respect of suit house in favour of plaintiff? OPD

11. Relief.

5. Both the Courts below had decided issue No.1 in favour of respondent/plaintiff. It was held that ownership of respondent/plaintiff was not denied by appellant/defendant and since appellant/defendant had failed to prove the transaction of sale, therefore, respondent/plaintiff was held to be owner of suit property. However, issues No.2 and 3 was decided against respondent/plaintiff and in favour of appellant/defendant. Issues No.4, 5 & 6 were decided in favour of appellant/defendant and against respondent/plaintiff. Issues No.7, 8 & 9 were decided in favour of appellant/defendant and against respondent/plaintiff and accordingly, Court of first instance had dismissed the suit preferred by respondent/plaintiff.

6. Learned First Appellate Court had found that even though respondent/plaintiff had failed to prove relationship of landlord and tenant, by treating possession of appellant/defendant to be of unauthorized occupant, held respondent/plaintiff entitled to possession.

7. Learned counsel for appellant/defendant has argued that once both the Courts have held that no relationship of landlord and tenant existed between respondent/plaintiff and appellant/defendant, then the present suit filed for eviction of tenant ought to have been dismissed with liberty to respondent/plaintiff to seek his remedy in accordance with law to get the possession.

8. On first look, arguments raised by learned counsel for appellant/defendant appear to be attractive, however, on appreciation of evidence led by parties and findings recorded by both the Courts, I do not find any error in the approach of learned First Appellate Court in allowing the suit for possession. Admittedly, both the Courts below have found that the suit property is owned by respondent/plaintiff, and the appellant/ defendant has failed to prove his case that he had purchased the same from respondent/plaintiff. Even before this Court no material could be shown to justify as to in what capacity appellant/defendant is in possession of the suit property. Therefore, even if it is held that appellant/defendant was not tenant under respondent/plaintiff, even then his possession is clearly unauthorized or can be equated with that of an encroacher. It is worth noticing that present suit was not filed under the Haryana Common Purposes Land Eviction and Rent Recovery Act, 1985 as same were not applicable.

9. The present suit has been filed for possession by respondent/plaintiff being owner of suit property, therefore, even if respondent/plaintiff failed to prove relationship of landlord and tenant, he can still get possession vide present suit once he is able to show that either appellant/defendant has defaulted being a tenant or that appellant/defendant was in illegal possession of suit property without authorization.

10. In the present case, it is clearly made out that appellant/defendant is an illegal occupant of suit property owned by respondent/plaintiff who wants to recover the possession. Therefore, the conclusion drawn by learned Appellate Court cannot be faulted with. Moreover, in the present case, another fact which needs to be noticed is that prior to filing of present suit, respondent/plaintiff had also filed a suit for permanent injunction which was dismissed with liberty to seek appropriate remedy in accordance with law wherein also the claim of appellant/defendant as regards to ownership over the suit property was rejected. Therefore, as far as appellant/defendant is concerned, his status is of an illegal unauthorized encroacher over the suit property.

11. The judgment relied up by learned counsel for appellant/defendant titled Amar Nath Vs. Prem Nath, 1982 AIR (Punjab) 195, is of no help to the case of appellant/defendant. Perusal of the case cited above goes to show that tenancy was admitted by defendant by claiming that he was tenant on monthly rent of Rs.80 per mensem. However, possession was declined to plaintiff in the said case as dispute was regarding identity of property of which possession was sought and which was earlier in possession of defendant arose. There was no dispute regarding tenancy. Both plaintiff as well as defendant in the cited case had pleaded tenancy but relief of possession was declined on some other ground. Accordingly, the cited case has no relevance to the facts and circumstances of the present case.

12. In view of above discussion, I do not find any error with the conclusion drawn by learned First Appellate Court and same is upheld. Regular second appeal is without any merit, hence is dismissed.

13. Pending application(s), if any, is/are disposed of accordingly.

Appeal dismissed.

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