Jharkhand High Court
Ranjit Singh @ Rana vs (A) Satyabhama Devi on 23 July, 2018
Equivalent citations: 2019 AIR CC 280 (JHA), 2019 (13) SCC 324, 2018 (4) AJR 749, (2019) 194 ALLINDCAS 677 (JHA), (2018) 4 JCR 445 (JHA), (2019) 1 CIVLJ 1, (2019) 1 ICC 7, (2019) 1 JLJR 338, (2019) 1 PAT LJR 371
Author: Rajesh Kumar
Bench: Rajesh Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.124 of 2013
1. Ranjit Singh @ Rana
2. Gurmit Singh @ Rana .... Defendants/Appellants/Appellants
Versus
1. (a) Satyabhama Devi
(b) Priya Dubey
(c) Vijay Dubey
(d) Puspa Devi
(e) Rita Dubey
(f) Divya Dubey
2. Kunti Devi ..... Plaintiffs/Respondents/Respondents
-----
Coram: HON'BLE MR JUSTICE RAJESH KUMAR
-----
For the Appellants : Mr. Anuj Kumar, Advocate
For the Respondents : Mr. Bibhash Sinha, Advocate
----
26/23.07.2018: Heard the counsel for the parties.
The suit has been filed by the plaintiffs for eviction of the suit premises on the ground of default in payment of rent.
The case of the original plaintiff is that his father namely, Indrajeet Dubey, being employee of M/s Tata Nagar Foundary Company Ltd., Jamshedpur, was allotted a Quarter bearing Ex. Ticket No.1209. The Company subsequently went on liquidation in the year 1967-68 and the employees were allowed to retain the quarters. Further case of the plaintiff is that plaintiff's father facing financial difficulty, has given a portion of the suit quarter to the father of the original defendant, namely, Niranjan Singh on monthly rent of Rs.25.
Eviction Suit No.5 of 2001 was filed by the original plaintiff-
namely, Paras Nath Dubey against Jeet Singh and Kuldeep Singh, both sons of late Niranjan Singh. During pendency of the suit, Jeet Singh has died and his wife namely, Smt. Kunti Devi has been substituted and subsequently, Kuldeep Singh has also died and his wife namely, Balbir Kaur has been substituted in his place. Subsequently, Balbir Kaur has also died and only Kunti Devi was defended the case. Later on, the Eviction Suit No.05 of 2001 has been decreed against Kunti Devi vide decree dated 02.08.2008, which was signed on 07.08.2008.
For executing the decree, execution case being Execution Case No.2 of 2009 has been filed in which appellants have objected under Order XXI rule 98 C.P.C. The said objection has been registered as Misc.
Case No.6 of 2009. The case of the present appellants is that they are son of late Kuldip Singh. Kuldip Singh has died during pendency of the eviction suit being Eviction Suit. No.5 of 2001 and thereafter his wife has been substituted, who has also died, but being legal heirs, present appellants have not been brought on record in the above suit and as such, the same is not binding upon them. The Executing Court has recorded the finding that since the present appellants are claiming title through Niranjan Singh, who was original tenant and as such, if one of the tenants is party, then rest of the tenants is bound by the decree.
Accordingly, aforesaid Misc. Case No.6 of 2009 has been dismissed.
Being aggrieved, Misc. Appeal No.2 of 2010 has been filed. The appellate court has also confirmed the order passed by the Executing Court.
Being aggrieved, present second appeal has been filed before this Court.
It has been submitted by the counsel for the appellants that as they were stranger to the suit being Eviction Suit No.5 of 2001, the decree passed in the said suit is not binding upon them.
In this context, it is relevant to quote some paragraphs of the judgments of the Hon'ble Supreme court:
This extract is taken from Bibi Zafira Khatoon and Ors v. Mohammed Hussain and Another, (2009) 10 SCC 658, at page 663 :
17. We shall now consider whether Section 12 of the Act should have been invoked by the executing court for ordering eviction of Respondent 1 from the suit premises. That section reads as under:3
"12. Binding nature of the order of the court on all persons in occupation of the building.--Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason, whatsoever, and any order is made by the court under this Act, for the recovery of possession of such premises, the order shall be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom:
Provided that nothing in this section shall apply to any person who has an independent title to such a premises or to tenant who has been inducted with the express written permission of the landlord himself personally."
By enacting the above reproduced provision, the legislature has ensured that an order made by the court for recovery of possession should be executed in a wholesome manner and the landlord should not be compelled to enter into further prolonged litigation for the purpose of getting possession of the suit premises simply because the tenant may have, without the knowledge or permission of the landlord, inducted some other person in the tenanted premises. This is the reason why Section 12 begins with a non obstante clause and lays that where the interest of tenant is determined and an order is made by the court for recovery of possession of the premises, such order shall be binding on all persons, who may be in occupation of the premises, and vacant possession thereof shall be given to the landlord by evicting all such persons therefrom.
18. The use of the words "all persons" in the substantive part of Section 12 signifies the legislative intendment that the order passed by the court for the recovery of possession of the tenanted premises should bind everyone who may be occupying the premises irrespective of his status. To put it differently, Section 12 seeks to ensure delivery of vacant possession of the premises to the landlord by evicting not only the tenant but any other person who may be occupying the premises.
The proviso to Section 12 protects the person who has independent title to such premises or the tenant who has been inducted with the express written permission of the landlord himself personally.
This extract is taken from Mohd. Hussain and Others v. Occhavlal* and Others, (2008) 3 SCC 233, at page 240:
13. In N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb7 this Court in para 14 observed as follows: (AIR p. 796) "14. Ordinarily the court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court.
The court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion."
(emphasis supplied) From a bare reading of the aforesaid observation of this Court in the abovementioned decision, it is clear that ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this Court culled out some important exceptions:
(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.
(iii) The court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record.
This extract is taken from Surayya Begum (Mst) v. Mohd. Usman and Others, (1991) 3 SCC 114, at page 116 & 117 :
7. The learned advocates representing the decree holders in these two appeals have argued that when the tenancy rights devolve on the heirs of a tenant on his death, the incidence of tenancy remains the same as earlier enjoyed by the original tenant and it is a single tenancy which devolves on them. There is no division of the premises or of the rent payable, and the position as between the landlord and the tenant continues unaltered. Relying on Kanji Manji v. Trustees of the Port of Bombay2 and borrowing from the judgment in H.C. Pandey case3 it was urged that the heirs succeed to the tenancy as joint tenants. The learned counsel for the appellants have replied by pointing out that as the aforesaid two decisions were distinguished by this Court in the latter case of Textile Association1, it was not open to the landlords to support the impugned judgments by relying upon the earlier two cases.
8. So far as Section 19 of the Hindu Succession Act is concerned, when it directs that the heirs of a Hindu dying intestate shall take his property as tenants-in-common, it is dealing with the rights of the heirs inter se amongst them, and not with their relationship with a stranger having a superior or distinctly separate right therein. The relationship between the stranger and the heirs of a deceased tenant is not the subject matter of the section. Similar is the situation when the tenant is a Mohammedan. However, it is not necessary for us to elaborate this aspect in the present appeals. The main dispute between the parties, as it appears from their respective stands in the courts below, is whether the heirs of the original tenants who were parties to the proceeding, represented the objector heirs also.
According to the decree holder in Miss Renu Sharma's case their interest was adequately represented by their mother and brothers and they are as much bound by the decree as the named judgment debtors. In Surayya Begum's case respondent 1 has denied the 5 appellant's claim of being one of the daughters of Khalil Raza, and has been contending that the full estate of Khalil Raza which devolved upon his heirs on his death was completely represented by respondents 2 to 9. In other words, even if the appellant is held to be a daughter of Khalil Raza the further question as to whether her interest was represented by the other members of the family will have to be answered.
9.The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not unknown. A karta of a Joint Hindu Family has always been recognised as a representative of the other members of the Joint Hindu family, and so has been a trustee. In cases where the provisions of Order I, Rule 8 of the Civil Procedure Code are attracted a named party in a suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision. Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure:
"Explanation VI. -- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
This, of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he cannot be considered to be a representative. The issue, when it becomes relevant, has, therefore, to be answered with reference to the facts and circumstances of the individual case. There may be instances in which the position is absolutely clear beyond any reasonable doubt one way or the other and the question can be settled without any difficulty; but in other cases the issue may have to be decided with reference to relevant evidence to be led by the parties. Surayya Begum's case is of this class while Renu Sharma's appeal belongs to the first category.
Present appellants have not claimed any independent title or interest, rather they are claiming their rights through original tenant i.e. their grandfather namely, Niranjan Singh. Further, it is not a case of the appellants that the decree has been obtained in collusion or fraud, in absence of any such pleading, rather the original defendants in the suit have admitted that they have been inducted as a tenant.
Thus, there is admission on the part of the predecessor of the present appellants, regarding existence of tenancy. Default in payment of rent is also admitted.
Thus, from the above, it is clear that there is no involvement of any substantial question of law in the present appeal. Accordingly, the same is, hereby, dismissed.
(Rajesh Kumar, J.) Ravi/-
AFR