Punjab-Haryana High Court
L.B. Tandon vs Smt. Kanta Devi And Anr. on 7 February, 1995
Equivalent citations: (1995)111PLR750
JUDGMENT N.K. Kapoor, J.
1. This regular second appeal is against the judgment and decree of the Additional District Judge whereby the judgment and decree of the trial Court was upheld maintaining the claim set up by the plaintiffs.
2. Briefly, the case set up by the plaintiffs is that M/s. Lachhi Ram Panna Lal was tenant in premises No. 5241/2, Gur Bazar, Ambala Cantt at monthly rent of Rs. 15/-. Lachhi Ram was the Karta of M/s. Lachhi Ram Panna Lal which was stated to be a Hindu Undivided Family concern. Mr. Rameshwar Dass was the owner of the property in question. As per pleadings, Lachhi Ram died in the year 1954 leaving behind his two sons, namely, Panna Lal and Rishi Parkash as his legal heirs and so inherited the tenancy rights. Rishi Parkash too died in 1975. Plaintiff No. 1 is the widow of Rishi Parkash and plaintiff No. 2 Rakesh Kumar is his son. Thus, according to the plaintiffs, they have inherited the tenancy rights from Rishi Parkash. It has been further pleaded by the plaintiffs that defendant No. 1 - the present appellant - in collusion with Panna Lal (proforma respondent in the appeal) got an ejectment order from the court of Rent Controller on 13.6.1986 which order is stated to have been affirmed by the appellate authority on 12.11.1986 and on the basis of these orders defendant No. 1 Mr. L.B. Tandon has taken steps to evict the plaintiffs as well though they were not impleaded as party in these proceedings. With these broad averments, the plaintiffs prayed for permanent injunction restraining defendant No. 1 from dispossessing the plaintiff from the premises in dispute.
3. Defendant No. 1 put in appearance, filed written statement and controverted all the material allegations made by the plaintiff. It was pleaded by the defendant that the demised premises was not let out to M/s. Lachhi Ram Panna Lal. Relationship of landlord and tenant between the plaintiffs and defendant No. 1 was denied and it was further pleaded that Panna Lal was tenant against whom order of eviction has already been passed by the Rent Controller which has further been affirmed by the appellate authority. It was further pleaded that this Panna Lal was karta of the HUF firm after the death of Lachhi Ram and so the order of ejectment against him amounts to an ejectment order against the whole Hindu Undivided Family. This way the ejectment order is perfectly legal and valid.
4. On the pleadings of the parties, following issues were framed:
1. Whether the plaintiffs are the tenants under the defendant No. 1 as alleged in the plaint? OPP
2. Whether the plaintiff's are entitled to injunction as prayed for? OPP
3. Whether the plaintiffs have no locus standi to file the present suit? OPD
4. Relief.
5. The trial Court on the basis of oral evidence as well as documentary evidence led by the respective parties came to the conclusion that Rishi Parkash was tenant in the suit property in the year 1960. Since, admittedly, plaintiffs are legal heirs of Rishi Parkash and at no time had surrendered their tenancy rights, they continue to remain tenant at will. Reference was made by the trial Court to the judgment Exhibits P-5 and P-6 ejectment application filed by Rameshwar Dass wherein he had treated Rishi Parkash to be the tenant in respect of the property in dispute bearing No. 5241/2. This way the Court came to the conclusion that the plaintiffs were residing in the suit property and so decided issue No. 1 in favour of the plaintiffs. Under issue No. 2, the Court held that since plaintiffs were not party to the ejectment proceedings, they cannot be ejected in execution of order passed against Panna Lal. Under issues No. 3 and 4, it was held that in view of the finding of the Court in respect of issue No. 1, plaintiffs have locus standi to file the present suit. Accordingly, the suit was decreed in favour of the plaintiffs on 25.11.1988 as prayed for.
6. Feeling aggrieved by the judgment and decree of the trial Court, the defendant preferred appeal and assailed the correctness of the judgment of the trial Court. Written arguments were called from the party as Bar was on strike they accordingly filed the same. The lower appellate Court once again examined the matter in its entirety. Making reference to the copies of the judgment Exhibit P-5 and P-6 wherein joint written statement was filed by Panna Lal and Rishi Prakash in a suit filed by predecessor in interest of the Appellant - Mr. L.B. Tandon - wherein it was mentioned that both of them were in possession of the premises in dispute as tenants. The Court further observed that on perusal of judgments Exhibit P-5 and P-6 it is manifest that predecessor-in-interest of L.B. Tandon, in fact, purchased the suit property in the year 1982, and treated Rishi Parkash to be his tenant and, in fact, filed ejectment petition against him. Since the appellant has stepped in the shoes of Rameshwar Dass, his predecessor-in-interest, he cannot be allowed to tune around and say that Rishi Parkash was not a tenant in the house in question. Support was also sought from an order passed by the Appellate Assistant Commissioner of Income Tax dated 22.8.1958 - Exhibit P-3 that previously firm Lachhi Ram Panna Lal was in existence and after the death of Lachhi Ram, business was being run by Rishi Parkash his son. As regards the plea raised by the appellant that there is no proof on record that Rishi Parkash was in possession of the demised premises at the time of his death, reference was made to ration card Exhibit P-1, voter list Exhibit P-2 which record the names of Panna Lal and his family members as well as of the plaintiffs to be residing in house No. 5241 in the year 1980 when the voter list was prepared. Similar, entry finds record in the ration card as well. The lower appellate Court found no substance in the plea of the appellant that Rishi Parkash was not residing in the premises in dispute but was residing in house No. 5222. The lower appellate Court found not much substance in the plea of the appellant that letter Exhibit D-1 written by Rameshwar Dass to Panna Lal wherein no mention was made that Rishi Parkash was in occupation of the house in dispute is in any way conclusive and falsify the stand of the plaintiffs that they are in occupation of the premises in dispute as tenant. Accordingly, the lower appellate Court affirmed the finding of the trial Court holding that the plaintiffs were tenants under the appellant in the suit property. In view of this finding, the lower appellate Court also affirmed the finding of the trial Court to the effect that the plaintiffs cannot be ejected in execution of an order of ejectment in which the plaintiffs were not party.
7. The judgments and decrees of the Court below have been assailed being against law and thus unsustainable. According to the appellant, the Courts below have misread the evidence and has mainly proceeded on conjectures, and premises. According to the appellant, at best the status of the plaintiffs was as joint tenant and since the order of eviction had already been passed against Panna Lal, the plaintiffs had no independent right to once again reopen the matter which has become final. Both the Courts have proceeded on wrong premises leading to the passing of the impugned judgments which per se are contrary to law. Both the Courts are also guilty of not properly perusing the oral as well as the documentary evidence led by the defendant - the appellant - to prove that, in fact, heirs of Rishi Parkash are residing in a property bearing No. 5222 and it is for this precise reason that they - being aware of the eviction proceedings filed by the present appellant against Panna Lal did not come forward to contest the same. Reference by the Courts below to the entries in the ration card or to the voter list to conclude that the plaintiffs had been residing at the premises in dispute was wholly misplaced. Both these judgments deserve to be set aside by the Court.
8. The appellant made his oral submissions as well as placed on record written arguments in support of his contentions noticed. Since the learned counsel for the respondents was not available when submissions were being made by the appellant, it was directed by the Court that the respondent too can file written arguments on behalf of respondents No. 1 and 2 plaintiffs. Learned counsel for the respondents too has placed on record the written arguments. A rejoinder to the written arguments has also been filed by the appellant.
9. I have gone through the written arguments filed by the respective parties. The judgments relied upon by the appellant as well as the respondents have also been perused. The broad facts leading to the present controversy are not in dispute. Rameshwar Dass was the erstwhile owner of the suit property who sold the same to the appellant through a registered sale deed, in the year 1982. Similarly, M/s. Lachhi Ram Panna Lal was a tenant in the premises bearing No. 5241/2, Gur Bazar, Ambala Cantt, at monthly rent of Rs. 15/-. Lachhi Ram was Karta of the firm which was stated to be Hindu Undivided Family firm. On the death of Lachhi Ram, his two sons, namely Panna Lal and Rishi Parkash, inherited his tenancy rights. On the death of Rishi Parkash, plaintiffs succeeded as his heirs. The dispute between the parties has arisen as the appellant took steps to take possession of the premises in dispute on the basis of ejectment order dated 13.6.1986 affirmed by the appellate Court on 12.11.1986 and its resistance by the plaintiffs who set up their claim independently from Panna Lal being heirs of Rishi Parkash as well as being in possession of the property in dispute. According to the appellant, registered letter sent by Rameshwar Dass Gupta dated 18.9.1982 to Shri Panna Lal, Exhibit D-1, clearly proved that Panna Lal alone was in occupation of the property in dispute at the time when the same was sold to the present appellant. Had it been otherwise, as now has been contended by the plaintiffs, their names too would have been mentioned in tile communication addressed to Panna Lal. This document Exhibit D-1 has been ignored for no valid reason. Even otherwise, possession of the plaintiffs at best could be as joint tenants. Since the order of eviction had already been passed against Panna Lal, the plaintiffs, in fact, had no independent right to assail the correctness of the order passed by the Rent Controller which was affirmed by the appellate authority as well. Viewed so, reference to the ration card or to the voter list was wholly uncalled for.
10. These submissions when tested in the light of documents on record belies the assertion made by the appellant. Smt. Daropati Rani and Rameshwar Dass filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") against Rishi Parkash and Panna Lal in the year 1960 which was decided by the Rent Controller vide order dated 15.11.1960, Exhibit P-5. Another application by the landlord against the tenants Rishi Parkash and Panna Lal was dismissed vide Annexure P-6 and in both these applications the erstwhile owner/landlord accepted Rishi Parkash and Panna Lal to be their tenants. This relationship continued till the year 1975 Rishi Parkash expired. From the perusal of judgment Exhibit P-5 and P-6, it has been clear that predecessor-in-interest of Mr. L.B. Tandon accepted Panna Lal as well as Rishi Parkash to be their tenants. With this accepted position, the letter addressed by Rameshwar Dass only to Panna Lal that hence forward he would pay the rent to Shri Tandon cannot be construed as amounting to oblitering the names of Rakesh Kumar and Smt. Kanta Devi who succeeded, as heirs of Rishi Parkash. Rameshwar Dass has not been examined as a witness. The necessary inference would be that had he been examined as a witness by the defendant he would have conceded that plaintiffs succeeded as heirs to Rishi Parkash, his co-tenant. In any case, letter Exhibit D-1 addressed to Panna Lal that henceforward he would go on paying the rent cannot be construed taking away the valuable rights of the persons affected.
11. This matter can be examined from another angle as well. In the eviction petition filed by the appellant against Panna Lal, specific objection was taken by Panna Lal that the present petition is bad for non-joinder of necessary parties, namely, non-impleading of heirs of Rishi Parkash. Thus, this fact was known to the plaintiffs. It is a different matter that the Rent Controller as well as the appellate authority brushed aside this objection of Panna Lal with a court observation that it was incumbent upon Panna Lal to produce such persons as well as witnesses who are stated to be residing with him as those persons might be agnates or cognates of Panna Lal and since he did not produce them an inference can be drawn that no one else resides in the premises in dispute except Panna Lal. The conclusion arrived at by the authorities, though binds Panna Lal but certainly cannot bind any other person who has set up an independent title. Examined so, the entries in ration card and the voter list assumes importance. The respondents with a view to prove their possession over the property in dispute have placed on record copy of ration card Exhibit P-1 which records the name of Mr. Rakesh and Smt. Kanta in the property bearing No. 5241. Ambala Cantt and on the basis of this ration card, these persons have been withdrawing ration from the year 1982-86. The voter list for the year 1980 in respect of inhabitants of House No. 5241 records the names of Panna Lal, Sheila Devi. Sweety Rani, Kanta Devi and Rajesh Kumar, Exhibit P-2. No evidence has been led by the appellant to disprove the entries in these official records. An attempt was made to prove that, in fact, the plaintiffs reside in premises bearing No. 5222. Both the Courts on the basis of evidence have come to the conclusion that though documents Exhibit D-5 to D-7 records Panna Lal to be in occupation of property No. 5222, the name of Rishi Parkash (predecessor of the plaintiffs) has not been mentioned therein.
12. It is again the case of the appellant that even if it is taken that on the death of Rishi Parkash, Rakesh Kumar along with his mother remained in occupation of the premises in dispute, their status is of a joint tenant and so they do not have an independent claim. A valid order of eviction having been passed against Panna Lal, they too are liable to be evicted. Support was sought from the decision of the apex Court in case reported as H.C. Pandey v. G.C. Paul, AIR 1989 S.C. 1470. There is no dispute with regard to the preposition as stated in the abovesaid judgment. It has been held in the aforesaid authority that on the death of original tenant, the tenancy rights devolve upon the heirs of the deceased tenant. The incidents of this tenancy is of the same as those enjoined by the original tenants i.e. it is a single tenancy which devolves upon the heirs. Thus, the heirs succeed to the tenancy as joint tenants and hence the notice terminating the tenancy under Section 106 of the Transfer of Property Act when addressed to and served upon one of the sons of the original tenant who paid rent on behalf of all and acted on behalf of all the heirs of the original tenant, notice only to one of the joint tenants could not be said to be insufficient. Therefore, this judgment has no applicability on the facts of the present case.
13. A bare perusal of documents Exhibit P-5 and P-6 pertaining to ejectment application filed by the erstwhile owner against Panna Lal and Rishi Parkash (predecessor-in-interest of the present respondents) arrayed both these persons to be tenants. It was no where stated that their status is that of tenants. In fact, Panna Lal and Rishi Parkash succeeded to Lachhi Ram being his sons. Thus, both had independent right being an heir to Lachhi Ram and so on the death of Rishi Parkash, Smt. Kanta Devi and Rakesh Kumar succeeded to his estate. Both these persons independently succeed to the estate of Rishi Parkash, be it proprietary or possessory and in this view of the matter, the respondents had independent right to protect their possession over the property from which they were sought to be evicted on the basis of the order passed against Panna Lal. Both the Courts rightly came to the conclusion that the respondents are not liable to be evicted on the basis of the order passed against Panna Lal.
14. The appellant in his written arguments has made reference to a number of judicial pronouncements which as per facts of the case and the question of law canvassed, in fact, have no applicability and so have not been discussed as it would be merely an exercise of futility burdening the judgment.
15. Resultantly, finding no merit in this appeal, the same is accordingly dismissed.
16. Since the appeal has been argued in person by the appellant, office is directed to intimate the result of the appeal to him at his given address. Keeping in view the contentious nature of the dispute, parties are left to bear their own costs.