Rajasthan High Court - Jaipur
Gopi Kishan vs Bajrang Lal And Anr. on 9 May, 1996
Equivalent citations: 1996(2)WLC585, 1996(1)WLN101
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. This is plaintiffs second appeal arises out of the suit for ejectment from the shop in question against the defendant-respondents alleging that the original tenant (deceased Rampratap) had parted with possession of the shop in question with them and as such their possession is unauthorised and they are liable to be ejected under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred as 'Act No. 17 of 1950').
2. The defendant respondents filed written statement denying the averments made in the plaint and pleaded that they are heirs of deceased Rampratap and Smt. Suraj Devi is not his legally wedded wife. It is alleged that they were living with the deceased original tenant Rampratap during his life time and carrying on business with him in the suit shop. With these pleadings the allegation of subletting was denied and they claimed themselves to be tenant of the disputed shop being heirs of deceased Rampratap. Respondent No. 1 claims himself to be. nephew of deceased while respondent No. 2 claims himself to be brother.
3. It is pertinent to mention that in paras 10 and 11 of their written statement the defendant respondents alleged that the original landlord Jaikumar entered into an agreement to sell the entire disputed premises including the shop in question to the original tenant Rampratap for Rs. 15,000/- and received Rs. 2,000/- as earnest amount from him on 20.12.83 but subsequently sold the premises to plaintiff appellant on 10.2.84 against which they have filed civil suit in the Court of District Judge, Bikaner for cancellation of sale-deed and for specific performance of contract.
4. The learned trial Court after analytical discussion of oral and documentary evidence adduced by the parties and after looking into the relevant provisions of Act No. 17 of 1950 decreed the suit for ejectment against the defendant respondents.
5. Aggrieved against the judgment and decree passed by the learned trial Court the defendant respondents preferred an appeal before the learned lower appellate court. The learned lower appellate court set aside the judgment and decree passed by the learned trial court and allowed the appeal filed by the defendant-respondents.
6. Aggrieved against the judgment and decree passed by the learned lower appellate court the plaintiff-appellant has filed the instant second appeal before this Court.
7. After service of notices upon the defendant-respondents they have filed a cross objection under Order 41 Rule 22 CPC. The defendant-respondents have also moved an application under Order 6 Rule 17 CPC for amending their entire written statement filed before the learned trial court.
8. I have heard the learned counsel for the parties at length and perused the judgments passed by both the courts below together with the records of the courts below.
9. Before dwelling upon the substantial question of law formulated in the present second appeal as well as cross objection, I consider it just and proper to dispose of the amendment application of the defendant-respondents seeking amendment in their written statement.
10. In my opinion, in the garb of present amendment application the defendant-respondents want to change their entire written statement. This application appears to be a desperate attempt of the defendant-respondents to stall the disposal of the suit expeditiously. By moving present amendment application the defendant-respondents intend to raise new pleas which had already been raised by them in original civil suit No. 54/84 before learned District Judge, Bikaner. The judgment and decree passed by the learned District Judge, Bikaner on 26.9.89 has already attained finality between the parties, therefore, the present amendment application is devoid of merit. In my considered opinion the present amendment application is an after thought and it has been moved to delay the disposal of the case between the parties, therefore, it deserves to be rejected and as such it is hereby rejected.
11. Now I propose to decide the substantial question of law involved in the present second appeal.
12. It is evident from the judgment of the learned lower appellate court that the plaintiff appellant has been non-suited on the finding that he has neither filed the original sale-deed dated 10.2.84 executed by Jaikumar in his favour nor he sought permission to file secondary evidence to prove the said sale- deed.
13. The aforesaid finding recorded by the learned lower appellate court is perverse inasmuch as the defendant- respondents themselves have admitted in paras 10 and 11 of their written statement about execution of sale-deed by Jaikumar in favour of the plaintiff-appellant.
14. It is settled principle of law that a fact admitted need not be proved as contemplated under Section 58 of the Indian Evidence Act. There is yet another reason to arrive on the aforementioned conclusion. Indisputably the defendant-respondents had filed a civil suit No. 54/84 for cancellation of aforesaid sale-deed and for specific performance of contract before the learned District Judge, Bikaner which was dismissed on 26.9.89. A certified copy of the aforesaid judgment is on record as Ex. 1.
15. It was obligatory on the part of the learned lower appellate court to have gone through the findings recorded by the learned District Judge in Civil Suit No. 54/84 about validity of the sale-deed in question as well as about heirs of deceased Ram Pratap in, accordance with the personal law applicable to him. The said judgment is admissible under Section 43 of the Indian Evidence Act as the fact in issue in the present case about validity of sale-deed as well as heirship of deceased Ram Pratap were also facts in issue in the aforesaid suit where the validity of the sale-deed dated 10.2.84 was upheld and defendant-respondents are heirs of deceased Ram Pratap under personal law applicable to him was negatived by the learned District Judge as his widow Smt. Suraj Devi was found to be alive.
16. Thus in the present case for the reasons stated above it was not at all necessary for the plaintiff-appellant either to have filed and proved original sale-deed dated 10.2.84 nor it was necessary for him. to seek permission to adduce secondary evidence to prove his title on the basis of said sale- deed inasmuch as he has already proved his ownership over the disputed shop before learned District Judge on 26.9.80. (Ex.1).
17. It is further true that the learned District Judge in his judgment dated 26.9.89 (Ex.1) has recorded a categorical finding that the defendant-respondents are not heirs of deceased Ram Pratap while Smt. Suraj Devi being his widow is his heir under Section 8 of the Hindu Succession Act being relative specified in Class I of the schedule of the said Act. The aforesaid judgment will be treated to be judgment in rem.
18. Keeping in view the aforesaid legal situation this Court is called upon to decide in the present second appeal whether merely because Smt. Suraj Devi is heir of deceased Ram Pratap original tenant of the shop in question under Hindu Succession Act, 1956 it was obligatory for the plaintiff-appellant to implead her in a suit for ejectment instituted under Act No. 17 of 1950. The expression 'tenant' has been defined under Section 3(vii) (a) and (b) of the said Act. Relevant provisions necessary for disposal of the instant second appeal reads thus:
3 (vii) "tenant" means-
(a) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX
(b) in the event of death of the person as is referred to in sub-clause (a) his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, or ordinarily carrying on business with him in such premises as member of his family up to his death.
19. An identical question came up for consideration before me in SB Civil Second Appeal No. 33/95 (Chiman Lal and Anr. v. Narendra Kumar) decided on 29.8.1995 where after taking into account a decision rendered in the case of Smt. Ram Jeewani v. Smt. Norati Bai reported in 1989 (2) RLR (F.B.) 308 and a decision rendered by the apex court in the case of Tara Chand and Anr. v. Ram Prasad it was held that in view of the decision rendered by the apex court in the case of Tara chand (supra) the view taken by the Full Bench in the case of Smt Ram Jeewani (supra) does not hold water. In paras 16 and 17 of the judgment rendered in case of Chiman Lal (supra) it was held which reads thus--
16. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx All heirs and legal representatives of deceased tenant will not become ipso facto statutory tenant under the Act. In fact, only those heirs and legal representatives who are members of the family plus who carried on business with the original tenant upto his death are entitled to get benefit of Section 3(vii)(b) of the Act. Subsequently, carrying on business after death of original tenant in the premises will not make such heir and legal representative as tenant under the Act.
17. In my humble opinion, if the premises which is subject matter of disputed tenancy in a suit is not found in the enjoyment of the original tenant at the time of his death in state of jointness with his heirs and legal representative death of the original tentant results in folding of the protective umbrella contemplated under Section 3(vii)(b) of the Act of 1950 and after death of the tenant his heirs and legal representatives would not be entitled to the protection referred in the aforesaid Section.
20. From the aforesaid discussion it become crystal clear that the learned lower appellate court has no justification whatsoever to dismiss the suit of the plaintiff-appellant due to non- impleadment of Smt. Suraj Devi widow of deceased Rampratap as admittedly she was not carrying on business with her deceased husband during his life time in state of jointness and did not continue to do so upto his death.
21. A close scrutiny of Section 3 (vii)(b) of Act No. 17 of 1950 leads towards an irresistible conclusion that before a person becomes entitled either to be impleaded as a party in a suit for ejectment under the said Act or claims himself to be the tenant of a deceased, he is required to establish that he is heir of deceased in accordance with the personal law applicable to him in the case of premises leased out for residential purposes residing and in case of premises leased out for commercial or business purposes carrying on business with him in such premises as member of his family upto his death.
22. In the present case the dispute is relating to a shop which was admittedly let out to deceased Rampratap for business purposes and factually he was alone doing business over the suit shop, therefore, for impleadment as a necessary party and also for claiming to be tenant of the disputed shop, two conditions precedent are required to be established. Firstly, that the person who is claiming himself to be impleaded as a party or who is claiming himself to be the tenant of the disputed shop must establish that he is heir in accordance with the personal law applicable to deceased Rampratap and secondly, he was carrying on business with him in such premises as member of his family upto his death.
23. I am of the opinion that break of either of the condition precedent enumerated above snaps of the right denuding the continuity of statutory tenancy within the meaning of Section 3 (vii)(b) of Act. No. 17 of 1950 and an argument contrary to it is not leviable.
24. On the aforementioned ground it is specifically held that the plaintiff-appellant has rightly filed the suit against the present defendant-respondents who are wrongly claiming themselves to be heirs of deceased Rampratap while his widow Smt. Suraj Devi is still alive. Since the defendant-respondents are retaining possession of the shop in question illegally claiming themselves to be heirs of deceased, therefore, the plaintiff-appellant was perfectly justified to file a suit for ejectment against them under Act No. 17 of 1950.
25. Although Smt. Suraj Devi is heir of deceased Rampratap but indisputably since she was not carrying on business with her deceased husband Rampratap, therefore, she fulfills only one condition and other condition is lacking hence she is not necessary party in the present suit and the plaintiff appellant is fully justified not to implead her.
26. As regards the claim of the defendant-respondents of being tenant of the shop in question they have proved only one condition about carrying on business with deceased Rampratap without disclosing their capacity whether as a servant or as a partner. But they miserably failed to establish themselves as heirs of deceased, therefore, they are not entitled to claim themselves to be the tenant of the shop in question.
27. In my humble opinion for impleadment as a party in a suit under Act No. 17 of 1950 and for acquiring status of tenant under Section 3 (vii)(b) of the said Act, both the conditions precedent required to co-exist. If any one of them is missing then no one can claim either to be impleaded as a party or claim himself to be the tenant of the shop in question.
28. Here in the present case there are other grounds and evidence available on record on the basis of which the suit filed by the plaintiff-appellant deserves to be decreed. Admittedly in the present case deceased Rampratap parted with possession to defendant-respondents who are indisputably not his heirs under personal law applicable to him then in such a situation the shop in question would be treated as vacant and their possession would be unauthorised. Under Section 13 (e) of Act No. 17 of 1950 the original tenant Rampratap was prohibited either to assign or to sublet or otherwise part with the possession of the shop in question without the permission of landlord.
29. It was obligatory on the part of the learned lower appellate court to have a glance over the mandatory provisions contemplated under Section 13 (e) of Act No. 17 of 1950 inasmuch as every court of law is required to take judicial notice of the mandatory provisions. Although the aforesaid point was argued and is discussed by learned trial court but it has not disclosed the aforesaid section. The learned lower appellate court aught to have made an attempt to investigate the source of the finding recorded by learned trial court instead of dismissing the suit of the plaintiff-appellant in a casual manner.
30. I am satisfied in the present case that the plaintiff landlord has successfully proved parting with the possession by deceased Rampratap in favour of defendant-respondents illegally who are not his heirs without permission of the landlord. The act of parting with possession by deceased Rampratap in favour of defendant-respondents was per se illegal and without permission of the landlord as envisaged under Section 13 (e) of Act No. 17 of 1950. It is true that initial burden of proving that there was parting with possession is always on the landlord but once parting with possession is proved by landlord the onus of proof shifts on the tenant to show that his possession was with the permission of the landlord.
31. In the present case I am of the opinion that the learned lower appellate court has misdirected itself to make out a new case in favour of the defendant-respondents to the effect that they are tres-passers and as such the plaintiff appellant is required to file a regular suit for their ejectment after paying full court fee and present suit is not maintainable. In fact from the pleadings and proof adduced by the defendant respondents in the present case they were claiming tenancy right being heirs of deceased Rampratap within the meaning of Section 3 (vii)(b) of Act No. 17 of 1950 and once they failed to establish themselves to be the heirs of deceased Rampratap the learned lower appellate court has no jurisdiction to make out a hew case in favour of the defendant respondents that they are trespassers. The finding of tres passers recorded by the learned lower appellate court for dismissing the suit of the plaintiff appellant is perse illegal and liable to be set aside.
32. In my considered opinion defendant respondents have miserably failed to discharge onus' of proof cast upon them that their possession over the disputed shop was with the permission of landlord. In fact the defendant-respondents have neither pleaded in their written statement nor they have adduced any evidence in support of the fact that their possession over the disputed shop was with the permission of the landlord. In absence of such pleadings and proof by the defendant-respondents in rebuttal the suit of the plaintiff-appellant is maintainable under Act No. 17 of 1950 and deserves to be decreed.
33. The cross objection filed by the defendant-respondents is based on misconception of law and facts and is also devoid of merit hence it is hereby dismissed.
34. In the facts and circumstances of the case the present second appeal succeeds and is allowed with costs throughout and the judgment and decree passed by the lower appellate court is hereby set aside and the judgment and decree passed by the learned trial court is restored.