Andhra HC (Pre-Telangana)
T. Sriramulu vs Diwan Eknathrao And Anr. on 7 October, 1994
Equivalent citations: 1994(3)ALT434
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER P.L.N. Sarma, J.
1. This revision filed by the tenant arises under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, for short "The Act".
2. We will refer to the parties in this Judgment as original landlord, landlord and tenant for convenience sake.
3. Eviction petition was instituted by the original landlord (father of the landlord) on the ground that the schedule premises is required bona fide for the business of his son (landlord) to commence cloth business. It is stated in the application for eviction that the original landlord is the kartha of Hindu Undivided Family, consisting of himself arid two sons (including landlord). The joint family possesses property including the petition schedule shop. His son - Diwan Vijaykumar, aged about 22 years (landlord) is carrying on business under the name and style of "Vijaya Bangle Store" in a rented mulgi bearing Municipal No.. 1-1-258/3 belonging to Sri U. Narayana, situate at Chikkadapalli, Hyderabad. He is pressing the original landlord to provide him petition schedule mulgi belonging to the joint family to commence cloth business on the ground that his bangle business, is not profitable and suitable which is being run in a rented premises at Chikkadapalli and therefore, the petition schedule-premises is required bona fide for his son (landlord) to commence cloth business. They also stated that not only himself but also his son has necessary capacity to invest in the cloth business and to commence the same in the petition schedule premisesand that the bona fide need of the son (landlord) is also the bona fide need of the original landlord. Original landlord filed the application as kartha or Hindu Unidivided Family in a representative capacity.
4. A counter has been filed denying all the allegations in the petition, and in particular, it is stated that the bona fide requirement of the landlord is neither true nor genuine.
5. Respective parties have adduced evidence on their side.
6. On a consideration of the entire material placed before him, the Rent Controller dismissed the application holding that bona fide requirement of the landlord as pleaded in the petition was not proved.
7. Questioning the said order, an appeal has been preferred to the appellate Court by the original landlord. Pending appeal, partition was effected on 11-4-1988 by registered partition deed in the Hindu Undivided Family, of which the original landlord as well as landlord and another were coparceners. In the said partition, the petition schedule premises fell to the share of the landlord. As a consequence, the landlord filed an application in LA. No. 378 of 1988 for bringing him on record as the second appellant in the appeal. After the landlord was impleaded as second appellant in the appeal, evidence was also recorded by the appellate Court. Though the landlord was examined as P.W.2 in the rent control proceedings in respect of partition effected in the Hindu Undivided Family, he was recalled and further examined and cross-examined in the appeal. Similarly, P.W.I was also recalled and examined and cross- examined and further evidence was adduced.
8. On a consideration of the evidence, learned appellate Judge allowed the appeal and ordered eviction of the tenant accepting the plea that the landlord bona fide required the petition schedule premises for commencing cloth business.
9. Questioning the said order of the lower appellate Court, present revision has been preferred by the tenant.
10. When the revision came up before G. Ramanujulu Naidu, J. it was contended that the eviction petition was originally filed by the original land lord and that it is not maintainable having regard to the fact that the original landlord owns another non-residential building in the city. (Vide Vuiyavathi Bai v. Shankar Lal, 1987 (2) APLJ 365 and that the original plea of the original landlord was that the petition schedule premises is required bona fide for the purpose of business of a member of joint family. The joint family is no longer in existence because of the partition and the landlord cannot continue or sustain the present application for eviction, and he has to file an independent application for eviction because the cause of action for the landlord arose during the pendency of the appeal as a result of the partition affected in the joint family.
11. The learned Judge, having regard to the submissions made before him on behalf of the tenant, stated that three points arise for consideration in the revision petition and that those three questions are of general importance and, in that view, directed the revision petition to be posted before a Division Bench. Accordingly, by virtue of the order of the Hon'ble the Chief Justice this revision is placed before us.
12. Sri Subba Rao, the learned Counsel appearing for Sri C. Poornaiah, in support of his contention that an independent application for eviction has to be filed by the landlord, having regard to the fact that the cause of action arose during the pendency of the appeal, relied upon a judgment of the learned single Judge of this Court in CRP No. 3033 of 1989, dated 2-7-1990.
13. The facts as disclosed by the judgment in the said case, are as follows: One of the two brothers filed an application for eviction alleging that the premises was required bona fide not only for himself, but also for his brother. They constitute a joint Hindu Undivided Family and the non-residential premises was required bona fide for the business to be commenced by them. The said application was opposed by the tenant on the ground that the petitioner in the eviction petition was the kartha of the joint family and he is carrying on the business in some other premises and therefore, not entitled to sustain the eviction petition. We are not referring to the other contentions raised by the tenant in that case, as they are not relevant for the purpose of disposal of this Revision Petition. Pending the appeal, the other brother sought to come on record on the ground that there was partition in the joint family and the shop in question fell to his share. Though he was imp leaded, ultimately, the appeal was dismissed confirming the order of eviction passed by the Rent Controller.
14. Questioning the said order, a revision was filed by the tenant. A similar contention was advanced before the learned Judge stating that no application has been filed for eviction on behalf of the brother who came on record in the appeal alleging that the premises was required bona fide by him. The learned Judge (Justice Eswar Prasad) allowed the revision petition on the ground that when once the joint family is disrupted by division the requirement of the joint family as such will not survive. Each member of the joint family has to plead and prove his own personal bona fide requirement to obtain eviction. The learned Judge felt, on the evidence on record and having regard to the findings of the Ren t Controller, that what was pleaded was the family requirement, but not the requirement of the member who came on record pending disposal of the appeal. In that context, the learned Judge stated that the person to whom the non-residential building was allotted, in the partition effected pending the appeal, should file an independent application for eviction setting up his own pleading and proving that the petition schedule premises required bona fide by him.
15. We are of the opinion that having regard to the facts and circumstances and the pleadings of the said case it cannot be said that the learned Judge meant to lay down as a matter of law, that in every case where there is partition between the members of the joint family, the person to whom the schedule premises was allotted, has to institute an independent application for eviction and that he will not be entitled to pursue or continue the application filed by the 'kartha' of the joint family. If the said judgment is to be understood as laying down an absolute principle of law that in every case where partition is effected in the joint family, the person to whom the schedule mentioned premises was allotted, cannot continue the proceedings instituted by the original landlord as kartha of the joint family, we respectfully hold that the said view is not correct.
16. In the present case, the original landlord filed the application in the capacity of kartha of the Hindu Unidivided Family. In such a situation, the entire Hindu Undivided Family must be deemed to be the petitioner in the eviction petition which includes the landlord. In the application for eviction, it was clearly stated that the landlord is an young man aged about 22 years and he is carrying on the business under the name and style of "Vijaya Bangle Store" in a rented mulgi bearing Municipal No. 1-1-258/3 belonging to Sri U. Narayana, situate at Chikkadapalli, Hyderabad and the kartha of the joint family decided to provide the petition schedule premises to the landlord to commence cloth business in the suit premises and the said premises is required bona fide as stated in the petition. It is also stated that the landlord was pressing the original landlord to provide him the suit schedule shop for his business as the bangle business run by him is not suitable and profitable.
17. It is apparent from the allegations made in para 11 of the counter, the tenant was fully aware of the fact that the application for eviction was filed on the basis of the bona fide requirement of the landlord and not for the joint family or the bona fide requirement of the original landlord. The only allegation made therein is in respect of denial of the allegation that the landlord requires the mulgi to commence cloth business since the rented shop in which he was running Bangle business is unsuitable and unprofitable. In other words, the" tenant wanted to say that the bangle business being run by the landlord is a profitable one and the mulgi which is being occupied by him as a tenant is suitable.
18. When we come to the evidence, the landlord as P.W.2 stated that the business in bangles run by him in a rented premises at Chikkadapally is in loss and therefore, he wants to start wholesale cloth business in the petition schedule shop. He also stated that their traditional business is cloth business and stated that he wants to wind up the bangles business at Chikkadapally. In the cross-examination, it was elicited that he got 10% net profit in the said bangles business and denied theother suggestions with regard to the turn-over etc. The original landlord as P.W.I also stated that P.W.2, who is running bangles business in a rented mulgi in Chikkadapally, requires the suit mulgi bonn fide for opening cloth shop having regard to the fact that the bangles business being run by him in a rented mulgi, is not being run properly. He also mentioned in the cross-examination that the said bangles business is not running profitably.
19. When we come to the evidence of the tenant as R.W.3, he stated in the chief examination itself that the original landlord is not the exclusive owner of the suit mulgi and that he is only one of the coparceners and that P.W.I does not require the suit mulgi for his personal occupation and that P.W.2 never told him that the bangles business was running in loss. In the cross-examination, he has stated that P.W.2 is carrying on bangle business in a rented premises at Chikkadapally and of course, he denied the suggestion that the said business was not running well. He also stated that P.W.2 does not intend to start whole sale cloth business with the assistance of experienced gumasthas.
20. It is clear from the evidence that the suit premises belonged originally to the joint family consisting of original landlord, landlord and another and the application for eviction was filed by tine original landlord as kartha of the Hindu Undivided Family for tine bona fide requirement of the landlord only, so as to enable him to commence cloth business in the suit schedule premises. The tenant is also aware of the fact that the recovery of the suit premises was sought only for the purpose of tine landlord and not for the purpose of joint family or the joint family business. They let in evidence accordingly. While so, during the pendency of the appeal in the appellate Court, there was a partition in the Hindu Undivided Family, where under, the suit schedule mulgi fell to the share of the landlord for whose bona fide requirement, the eviction application was instituted by the kartha of the joint family. After the landlord was impleaded as second appellant in the appeal with regard to the partition and other aspects, P.W.2 as well as the tenant as R.W.3 were recalled and examined in chief as well as cross-examined. On the evidence on record, the learned appellate Judge allowed the appeal and ordered eviction.
21. Therefore, having regard to the facts and circumstances and the material placed before us, it cannot be stated that the application was filed only by Hindu Undivided Family for the purpose of its own business requirements and that when there was a partition in the joint family, each individual member of the erstwhile joint family will have to institute a fresh application. On the other hand, the eviction petition was filed by the kartha of the Hindu Undivided Family representing all the coparceners for the purpose of bona fide requirement of one of the coparceners specifically viz., the landlord. After the partition, during tine pendency of the appeal, the landlord for whose benefit the application is instituted can certainly continue and prosecute the proceedings on the basis of the partition whereunder the suit mulgi was allotted to him.
22. Itiswell to remember the concept of coparcenery in this connection. "The concept involves community of interest, unity of possession and common enjoyment. Each coparcener's right extends to the whole joint family property. Each one of them has interest in the whole joint family". Vide M/s. Kalooram v. Income-tax Commissioner, . The partition only crystalises his individual coparcener's interest to a specific property. If this concept is borne in mind, it would be immediately clear that the requirement of joint family includes the requirement of an individual coparcener and when there is division the concerned coparcener to whose share the property fell can come on record and continue the proceedings.
23. Sri Subba Rao, learned Counsel appearing for the petitioner-tenant then contended that the partition is a device adopted by the parties to get over the law laid down by the Full Bench of this Court in Vidyavathi Bai's case (1 supra) and therefore, it should not be taken into consideration at all. We are not inclined to accept this contention. Every coparcener has an undoubted right to demand and seek a partition of the Hindu Undivided Family. May be the partition was effected on legal advice to gain advantage, but that does not mean that the partition itself cannot be taken note of on the ground that it is effected to over come the decision of the Full Bench in Vidyavathi Bai's case (1 supra). The act which is challenged (in this case 'partition') should not have the effect of evading any law, but it can avoid any consequence. Therefore, we are not impressed by the argument of-the learned Counsel for the petitioner. For all the reasons mentioned above, we are of the opinion that the landlord is entitled to prosecute the proceedings for eviction which was initiated for his benefit.
24. It is also well settled that subsequent events which arise during the pendency of the proceedings, can be taken note of to mould the relief. (Vide the decisions of the Supreme Court in P. Venkatesxvarlu v. Motor & General Traders, . and in Rarnesh Kumar v. Kesho Ram, ).
25. The conclusions arrived at by us answer all the three points referred to the Bench, which over-lap one.
26. Next, it is contended by Sri Subba Rao, the learned Counsel for the petitioner-tenant that on the facts of the case, it cannot be said that the landlord established his bona fide requirement. He contended that the bangle business being run by the landlord is in fact earning profits and the premises in which the business being run, is suitable for the said business. He drew our attention to the evidence of P.W.2 wherein he stated, that he is getting 10% net profit in the said business and that he invested about Rs. 20,000/-. In the evidence of the tenantas R.W.3, he deposed that P.W.2 never told him that his bangle business is running in loss etc:. The learned appellate Judge considered the entire evidence and rendered a finding that the landlord bona fide required the suit schedule premises for the business in cloth, which he proposed to start. The learned Judge also held that the landlord has necessary resources, capacity, financial back-ground and experience to start whole sale cloth business. The learned judge also, on the evidence on record, came to the conclusion that the traditional business of the landlord and his father as well as his grand-father is the cloth business and he is not very much interested or experienced in the bangle business and the said business is not sufficiently profitable to sustain him and therefore, the requirement of the landlord for the suit schedule premises, for his proposed whole sale cloth business, is bona fide. We do not find any serious error in the finding recorded by the learned appellate Judge having regard to the evidence and the material placed before us.
27. For all the above reasons, the revision fails and it is accordingly dismissed, but in the circumstances, no order as to costs. The petitioner-tenant is given five months time from to-day to vacate the premises and put the landlord in possession.