Rajasthan High Court - Jaipur
Sheo Narain Alis Saon vs Janki Prasad (Dead) Through L.Rs. ... on 5 July, 1994
Equivalent citations: AIR1995RAJ87, 1994(2)WLC723, 1994(2)WLN363
JUDGMENT R.S. Kejriwal, J.
1. This appeal under Section 100, C.P.C. has been directed against the judgment and decree dated 22-1-1994, passed by learned Civil Judge, Sikar, in Civil Regular Appeal No. 3/91(4/91), by which he accepted the appeal of the plaintiff and decreed the suit for eviction by setting aside the judment and decree dated 8-3-1991, passed by the learned Additional-Munsif, Sikar, in Civil Suit No. 95/1987.
2. The brief relevant facts of the case are that the plaintiffs-respondents filed a suit for eviction against the appellant, which was dismissed by the trial Court. Against this decree of the trial Court, the plaintiffs filed an appeal, which was allowed by learned Civil Judge, Sikar, vide his judgment and decree dated 22-1-1994, and the suit of the plaintiffs for eviction was decreed on the ground that the appellant denied the title of the plaintiffs. This decree has been challenged in this appeal by the defendant-appellant.
3. The submission of the counsel for the defendant-appellant is that there is neither any pleading nor issue on the point of denial of title, hence the lower appellate Court was not justified in passing a decree of eviction on the ground of denial of title. His second submission is that the defendant in his written statement admitted that the plaintiffs are owners of only half of the disputed property and as such there was no denial of the title of the plaintiffs. His third submission is that denial of title must be prior to the filing of the suit. If there is any denial of title during the pendency of the suit, no decree for eviction on that ground can be passed. In support of this argument, he placed reliance on ajudgment of the Apex Court, passed in Guru Amarjit Singh v. Rattan Chand, AIR 1994 SC 227.
4. On the other hand, Shri Mandhana, counsel for the plaintiffs-respondents submits that even if there is no pleading or no issue, still the Court can pass decree on the facts admitted by the defendant-appellant in his written statement. In support of his argument, he placed reliance on a Division Bench judgment of this Court, passed in Lallu Narain v. Ratan Chand Lunia (1989) I Raj LR 475.
His second submission is that from the written-statement filed by the defendant-appellant before the trial court, it is apparent that the defendant denied the title of the plaintiffs. In the written-statement, the defendant stated that half of the disputed property was owned by the appellant. He further submits that it is not necessary that the title of the whole rented premises should be denied. If a tenant denies title even part of the rented-premises, still he is liable to be evicted, under Section 13(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, hereinafter referred to as the 'Act'.
5. His last submission is that the judgment cited by the counsel for the appellant is under Section 111(g) of the Transfer of Property Act, which is not applicable to the facts of the case. The present case is governed by the Rent Control Act. In suits for eviction, under Rent Control Act, determination of lease is not required as held by the Apex Court in its judgment reported in Majati Subbarao v. P.V.K. Krishna Rao (deceased) by L.Rs. AIR 1989 SC 2187. He submits that the lower appellate Court, on the basis of written-statement field by the defendant-appellant was of the view that the appellant denied the title of the plaintiffs-respondents and as such a decree for eviction was passed against the appellant. He further submits that no substantial-question of law is involved in the appeal and as such same deserves to be dismissed with costs.
6. I have heard counsel for the parties and gone through the record and various judgments cited at Bar by the counsel for the parties. It is true that the suit for eviction was not based on the ground of denial of title because title of the plaintiffs for the first time was denied in the written statement. The ground of denial of title of the plaintiffs was taken in appeal with the leave of the Court. The ground is based on the admission of the defendant in his written statement, and as such the defendant-appellant cannot be said to be prejudiced. In such circumstances, even if there was no plea in the plaint and no specific issue was framed on the point of denial of title, still the Court was justified in passing a decree of eviction on the ground of denial of title as held by this Court in Lallu Narayan's case (1989 (1) Raj LR 475) (supra). In view of this the first submission of the counsel for the appellant has no merits and deserves to be rejected.
7. In the written statement, the appellant stated that half of the disputed property was owned by him and he was tenant only of half |0f the disputed property. In my view, if a tenant denies title even part of the rented premises, still he can be evicted on the ground of denial of title. My view is based on the judgment of this Court reported in Heeranand v. Abdul Sattar, 1975 WLN (UC) 430. In view of this, there is no force in the second submission of the counsel for the appellants.
8. In a suit for eviction under the provisions of Transfer of Property Act, determination of lease is mandatory. Cause of action for filing a suit accrues only when a lease is determined. Under these circumstances, denial of title must be prior to the accrual of cause of action. But when a suit for ieviction is filed under Rent Control Act, it is not necessary to determine the lease as held by the Apex Court in itsjudgment reported in V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745, wherein the Apex Court held as under:-
"In order to get a decree for eviction against a tenant under any State Rent Control Act, it is not necessary to give Notice under Section 106, T.P. Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceedings on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the T.P. Act. On the question of requirement of such notice under Section 106 T.P. Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that Section 106 of the T.P. Act merely providing for termination of a lease either by the lessor or the lessee by giving the requisite notice is an extra protection is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated. Even if the lease is_determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law, the tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under_the_State_ Rent Act, not otherwise."
9. This distinction has also been noticed by the Apex Court in its judgment passed in Majati's case (AIR 1989 SC 2187) (supra) wherein it has been held as under (at p. 2190 of AIR): --
"The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises detemination possession of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in sections. He cannot recover possession merely by determining the tenancy. Nor can be stopped from doing so on the ground that he has not terminated the contractual tenancy. In the case before us, we find that the denial of landlords's title by the tenant has been expressly made a ground for eviction under Section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier. In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent Act is knocked out. In our opinion the argument of learned counsel for the appellant must, therefore, be rejected."
10. The Apex Court rejected this argument of the counsel for the appellant that denial of title must be prior to the institution of the suit. In view of this, in my view, there is no force in the third submission of the counsel for the appellant.
11. No substantial question of law is involved in this appeal and as such the same is dismissed with costs amounting to Rs. 1,000/-.