Rajasthan High Court - Jodhpur
Sunil Kumar Nagori vs Abdul Sattar on 13 August, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR
: JUDGMENT DTD.13.8.2012
1/8
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. CIVIL SECOND APPEAL NO.244/2009
Sunil Kumar Nagori
versus
LRs. of Abdul Sattar.
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.S.D.Purohit, for the appellant - plaintiff
Mr.K.C.Samdaria, for the respondent - defendant
DATE OF JUDGMENT : 13th August, 2012.
BY THE COURT (ORAL)
1. The present second appeal of appellant - plaintiff landlord is directed against the judgment and decree dtd.26.2.2009 passed by the learned Additional District Judge (Fast Track) No.1, Bhilwara in Civil Appeal No.2/2008, whereby the learned lower appellate Court allowed the appeal of the defendant - tenant and set aside the judgment and decree dtd.22.11.2005 and 3.5.2001 passed by the learned Additional Civil Judge (J.D.) No.1, Bhilwara in Civil Original Case No.319/1993 whereby the suit filed by the plaintiff landlord has been decreed for eviction and mesne profit.
2. On 7.9.1991, the plaintiff Sugan Mal Nagori filed a suit against the respondent - tenant Abdul Sattar for eviction and mesne SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR : JUDGMENT DTD.13.8.2012 2/8 profit on the ground of bonafide necessity of his adopted son Sunil Kumar in respect of shop situated at Gandhi Bazar, Bhilwara.
3. The learned trial Court vide judgment and decree dtd.3.5.2001 decreed the said suit on the basis of bonafide need of adopted son of the plaintiff on the basis of evidence led before it.
4. Against the judgment and decree dtd.3.5.2001, the defendant - tenant filed first appeal and the learned Additional Dist. Judge No.1, Bhilwara vide judgment and decree dtd.3.2.2003 disposed of the appeal and remanded the matter to the learned trial Court to decide the issue of adoption of appellant afresh.
5. After remand also, the learned trial Court again passed the decree of eviction on 22.11.2005 holding that Sunil Kumar is the adopted son of plaintiff Sh. Sugan Mal Nagori and the premises in question is required for the bonafide need of Sunil Kumar Nagori and accordingly, the decree of eviction was passed. Now the same Sunil Kumar has filed the present second appeal after death of the adoptive father Sujanmal Nagori, as his legal representative.
6. Against the judgment and decree dtd.22.11.2005, the defendant - tenant preferred the first appeal, which was also SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR : JUDGMENT DTD.13.8.2012 3/8 dismissed by the learned Additoinal Dist. Judge No.2, Bhilwara in Civil Appeal No.4/2006 vide judgment dtd.15.3.2007.
7. Against the judgment dtd.15.3.2007, the defendant - tenant preferred second appeal before this Court being SBCSA No.204/2007 and this Court vide order dtd.13.11.2007 allowed the said appeal and remanded the matter back to the learned lower appellate Court on the ground that the first appellate Court has not decided all the issues.
8. On remand by this Court, the learned first appellate Court vide judgment and decree dtd.26.2.2009, allowed the appeal of the defendant - tenant and set aside the decree of eviction dtd.22.11.2005 and 3.5.2001 holding that adoption of Sunil Kumar is hit by provisions of Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956.
9. Being aggrieved by the judgment and decree dtd.26.2.2009, the plaintiff - landlord has preferred the present second appeal which was filed on 26.3.2009 in this Court.
10. The learned counsel for the appellant Mr.S.D.Purohit submitted that the learned lower appellate Court after remand twice over has wrongly held that for the bonafide need of the adoptive SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR : JUDGMENT DTD.13.8.2012 4/8 son,the suit for eviction cannot be decreed and has wrongly set aside the eviction decree on the ground that adoption was hit by Section 10
(iv) of the Act of 1956, whereas being family member, for the bonafide need of such adoptive son, the eviction decree was rightly granted on 3.5.2001 and 22.11.2005 by the trial Court.
11. On the other hand, the learned counsel for the respondent Mr.K.C. Samdariya supported the impugend judgment and decree dtd.26.2.2009 and submitted that no interference is called for in the same.
12. Having heard the learned counsels for the parties and upon perusal of the impugned decree, this Court is of the opinion that the finding recorded by the learned lower appellate court on the issue of adoption of appellant reversing the findings of learned trial Court twice over about bonafide need of adoptive son Sunil Kumar is perverse.
13. Appellant Sunil Kumar Nagori has been taken in adoption by registered adoption-deed, Ex.1 dtd.27.4.1990, when child was 24 years of age. The appellate Court found that adoption of child over 15 years of age was not customary in Nagori Community and therefore, adoption is hit by Section 10(iv) of 1956 Act. The appellate Court has fallen into obvious error. The eviction under Rent SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR : JUDGMENT DTD.13.8.2012 5/8 Control Act can be sought under Section 13(1)(h) of 1950 Act for bonafide personal need of landlord himself or any member of his family. The word "family" is of wide import. Recently, this Court in the case of Prakashmal @ Prakash Chandra V/s LRs. of Late Smt. Rehmat - SBCSA No.44/2012 decided on 9.8.2012 has held as under:
"16. On a careful analysis of the aforesaid case laws and the provisions of the Rent Control Act, 1950, the special law for eviction of tenants, who are entitled to protection given under the said Act and the eviction can be sought only on the specific grounds mentioned in Section 13 of the Act, this Court is of the considered opinion that the word "family" employed in Section 13 (1)(h) of the Act need not be construed narrowly or in a pedantic manner. The grand-son Mohd. Raffique in the present case is admittedly a blood relation of the plaintiff - landlady Mst. Rehmat. The right to sue as landlady upon her death devolved upon Mohd. Salim, who was another son and uncle of Mohd. Raffique.
Neither the strict law of succession, nor right to sue has to dispel or dislodge the ground of eviction, if bonafide need of landlord or member of his family is otherwise established and proved with evidence by the plaintiff. SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR : JUDGMENT DTD.13.8.2012 6/8 The word "family" is used in the context of bonafide need of the landlord/landlady, who can claim the eviction either for his/her own bonafide need or for any bonafide need of his/her family member has to be liberally and bonafidely construed. The landlady being grand-mother, in the present case, even though living with the grand-son, who was of mature age in his early twenties, could certainly claim the eviction of the suit shop for grand-son as member of her "family", irrespective of his entitlement to succeed to her property or not. The question of title is neither relevant nor it can be decided in rent control and eviction matters under the Act of 1950. That is why, the definition of landlord is widely given in the Act to include any person who being owner or otherwise is entitled to recover the rent in respect of the premises let out. Therefore, effort of learned counsel for the defendant - appellant to project that the grand-son could not be a member of the family, as not being entitled to succeed to the property in his own right in the presence of his own father Lal Mohd. and his uncle Salim Mohd., does not detract or disloge the ground of eviction set up and established under Section 13(1)(h) of the Act. The findings of courts below in this regard SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR : JUDGMENT DTD.13.8.2012 7/8 are findings of fact".
14. Thus, since adoptive son was admittedly living with the plaintiff landlord Sugan Mal for his need and the eviction suit was filed by him on 7.9.199, by holding his adoption as illegal, even though the sme was under registered adoption-deed Ex.1 dtd.27.4.1990, the appellate Court below has committed grave error. The right to succeed to the property is not the test for deciding the bonafide need under Section 13(1)(h) of the Rent Control Act, 1956.
15. Therefore, the present appeal of plaintiff - landlord is liable to be allowed and the same is hereby allowed and the first appellate Court order dtd.26.2.2009 under appeal is set aside and eviction decree dtd.3.5.2001 and 22.11.2005 are restored. No order as to costs.
16. The respondents -defendants - tenants shall hand over the peaceful and vacant possession of the suit premises to the appellant
-plaintiff (landlord) within a period of six months from today and shall pay mesne profit @ Rs.2000/- per month commencing from August, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the appellant - plaintiff till the vacant possession is handed over to the appellant - plaintiff and in case there is any default in payment of SBCSA NO.244/2009-SUNIL KUMAR NAGORI V/S LRS. OF ABDUL SATTAR : JUDGMENT DTD.13.8.2012 8/8 mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondents -tenants shall also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% and executing Court may quantify such amount and recover the same as a money decree. The defendants-tenants shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondents -defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the appellant -plaintiff/landlord within a period of six months from today, besides execution of the decree in normal course, the appellant- plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.
(Dr.VINEET KOTHARI)J. Ss/-
item No.s-114