Rajasthan High Court - Jaipur
Shiv Prasad Garg vs Bhairon Singh on 2 March, 1989
Equivalent citations: 1989(2)WLN162
Author: S.C. Agrawal
Bench: S.C. Agrawal
JUDGMENT S.C. Agrawal, J.
1. This second appeal is by the plaintiff in a suit for eviction filed against the respondent Bhairon Singh.
2. There is a property bearing old Municipal No. 1/552 and new Nos. 1 and 2 situated at Amla Marg, Beawar. The said property belonged to one Shri Vinodi Lal Mathur and on his death it devolved on his sons and grand-sons. The appellant purchased 7 out of 9 shares in this property under various registered sale deeds executed during the period 1961 to 1965. The respondent is in occupation of a part of the said house. The appellant filed a suit (No. 4/1964) in the court of Civil Judge, Beawar for partition of his 7/9th share in the property. In the said suit the appellant impleaded the other co-sharers in the property as defendants Nos. 1 to 11. In addition to the co-sharers, the appellant also impleaded the respondent as well as the other tenants who were in occupation of the premises as defendants Nos. 12 to 18 in the said suit. The appellant prayed for partition of the property by metes and bounds and for being put in exclusive possession of his 7/9th share in the said property. The appellant also prayed for a decree for rendition of accounts in respect of rents collected by the defendants or any one of (hem. The respondent (who was defendant No. 14 in the said suit) did not contest that suit and the suit proceeded ex-parte against him. The co-sharer defendants, how ever, contested the suit. By judgment(Ex.4) dated 16th November, 1968 the Civil Judge passed a preliminary decree (Ex.5) for partition in the said suit where by it was declared that the appellant has 7/9th share in the property while defendants Nos. 1 to 11 have 2/9th share in the same. The prayer for rendition of accounts was not allowed and the Commissioner was appointed for effecting a partition of the property by metes and bounds. The Commissioner submitted his report and on the basis of the report of the Commissioner, the Civil Judge, Beawar, by his judgment (Ex. 13) dated 30th November, 1969 passed a final decree (Ex. 14) where by the portion marked A, B,C, D, E, F & A on the ground-floor in the site plan marked 'D' was allotted to defendants Nos. 1 to 11 and rest of the property shown by A, J, I, H, G, B was allotted to the appellant on the ground-floor and the first floor. The portion of the property which was in occupation of the respondent fell in the share allotted to the appellant.
3. The appellant filed an execution petition (Ex. 36) for obtaining possession of the property allotted to his share under the final decree. In the said execution proceedings the appellant submitted an application (Ex. 37) under Order 21, Rule 36, CPC for giving constructive possession of the portion of the property in the possession of the respondent and other tenants who had been impleaded as defendants in the suit. Notice was issued in those proceedings to the judgment-debtors including the respondent and vide warrant (Ex. 35) symbolical possession of the property in the possession of the judgment debtors was delivered to the appellant by beat of drums on 20th January, 1972.
4. Thereafter the appellant purchased the 2/9fh share in the property from the other co-sharers (who were defendants Nos. 1 to 11 in the suit) by registered sale-deed dated 19th June, 1973.
5. The appellant submitted an execution petition No. 2/74 (Ex. 38) where by he prayed for delivery of actual physical possession of the property which is in possession of the respondent as well as other judgment-debtors, namely. Man Singh and Gopal Singh. Objections (Ex. 39) under Section 47, CPC were submitted in that execution petition by the respondent and other two judgment debtors. In his objections the respondent claimed that he has been in possession of the portion of the property in his occupation for the past 20 years in his own right and he has acquired proprietory rights over the same by adverse possession It was also pleaded by the respondent that symbolical possession has already been delivered to the decree-holder under Order 21, Rule 36, CPC and, therefore, the execution petition was not maintainable. The said execution petition was decided by the Additional Civil Judge, Ajmer by his order (Ex. 17) dated 13th September, 1974. In the said order the Additional Civil Judge has observed that in the matter before him there was no dispute that the respondent is a tenant and that in the notice that was given by the appellant decree-holder to the respondent it has been mentioned that he is a tenant. The Additional Civil Judge also found that the respondent had obtained possession under a contract of tenancy and the provision of Order 21, Rule 36, CPC is applicable and symbolical possession under Order 21, Rule 36 has already been delivered to the decree-holder. The Additional Civil Judge has also held that a tenant can be evicted only in accordance with the provisions of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (here in after referred to as 'the Act') and there is neither a decree for eviction nor has the decree-holder established any ground for eviction under Section 13 of the Act and, therefore, actual physical possession could not be delivered to the decree-holder. The Addl. Civil Judge, therefore, rejected the execution petition filed by the appellant.
6. The appellant thereafter filed the suit giving rise to the present appeal against the respondent where in he sought eviction of the respondent on the basis of the grounds mentioned in Section 13 of the Act. The appellant sought eviction of the respondent on the ground of default in payment of rent, material alteration in the premises, subletting of a part of the premises, denial of title of the appellant and reasonable and bonafide personal necessity of the premises by the appellant. The said suit was contested by the respondent who denied that there is a relationship of land-lord and tenant between him and the appellant and claimed that he is in possession of the premises as owner since 1955 and that has made construction on the same in the years 1955/56, 1959 and 1965. The respondent also submitted that he bad entered into an agreement with Shri Rajbihari Mathur for purchasing of the part of the premises in his occupation for Rs. 500/- and paid him Rs. 200/-, and further that in respect of 1/3rd portion of the premises he had entered info an agreement with Smt. Shanti Bai Mathur wife of Banwari Lal Mathur for purchasing it on 16th May, 1961 and has paid her Rs 100/-as advance against the said agreement. The respondent claimed that he has been in possession of the suit premises in his own right since 1955-56 and he has acquired title over the same by the adverse possession.
7. The said suit was decreed by the Additional Munsif and Judicial Magistrate first class, Beawar by his judgment and decree dated 15th April, 1978. The Additional Munsif held that in view of the principle of constructive res judicata the respondent was precluded from claiming that he is not in possession of the premises as a tenant. In this connection he found that in the previous suit of partition the respondent had been impleaded as a defendant and the respondent had engaged a counsel who bad filed his Vakalatnama and that the respondent had also taken part in the proceedings before the Commissioner. As regards the agreement (Ex.A 2 and Ex.A 3) for sale of the premises relied upon by the respondent, the Additional Munsif held that both these documents are not registered and they are not on stamp paper and they have not been legally proved and that more over one of the agreements was entered with Raj Narain Mathur who had no share in the property and one Raj Bihari had share in the property and signatures on Ex.A 2 were not of Raj Bihari Mathur. The Addl. Munsif also held that if an agreement had already been entered into with regard to purchase of the property in 1954, there is no reason why another agreement should have been entered into in respect of l/3rd share in the same property in 1961. The Addl. Munsif was, therefore, of the view that reliance could not be placed on documents Ex A 2 and Ex.A 3. The Addl. Munsif also found that the respondent has made material alteration in the suit premises and further that he has renounced his character as a tenant and he also sub-let a part of the premises without the consent of the landlord. He, therefore, passed a decree for eviction in favour of the appellant.
8. The respondent filed an appeal and the said appeal was allowed by the Addl. Civil Judge (Small Causes) Ajmer by his judgment and decree dated 23rd August, 1979. The Addl. Civil Judge held that in the earlier suit No. 4 of 1964, the relationship of landlord and tenant between the appellant and the respondent was not the subject matter of dispute and no finding was recorded by the court in that regard and that the judgment in the earlier suit could not operate as res judicata. He, therefore, held that it has not been established that the respondent is in occupation of the suit premises as tenant of the appellant. The Addl. Civil Judge also found that the respondent claims that he is in possession of the suit premises since 1955-56 as owner and has claimed title over the same by adverse possession. The Addl. Civil Judge was also of the view that the said question of title could not be gone into in the suit which was filed on the basis of relationship of landlord and tenant. The Addl. Civil Judge, therefore, allowed the appeal and setting aside the judgment and decree of the Addl. Munsif he dismissed the suit. Hence, this second appeal.
9. I have heard Shri U.N. Bhandari, the learned Counsel for the appellant, in support of this appeal and Shri S.R. Surana, the learned Counsel for the respondent.
10. Shri Bhandari has urged the following contentions:
[1] The respondent is precluded from asserting that he is not in possession of the suit premises as a tenant under the appellant in view of the decision (Ex. 4) in the earlier suit (No. 4/1964) for partition filed by the appellant where in the respondent was impleaded as a defendant in his capacity as a tenant and that the said decision is binding on the respondent on the basis of the principle of constructive res-judicata;
[2] The decision (Ex. 17) in Execution petition No. 2/74 wherein the Addl. Civil Judge, Ajmer has held that the respondent is in occupation as a tenant, operates as res-judicata and precludes the respondent from claiming that he is not in possession as a tenant;
[3] In any event the appellant is entitled to succeed on the basis of title and since the appellant obtained symbolical possession of the suit premises under Order 21, Rule 36, CPC in proceedings for execution of the decree passed in suit for partition, the respondent cannot claim that his possession over the suit premises is adverse in nature and he cannot claim title over the suit premises on the basis of adverse possession.
11. Shri Surana has supported the judgment of the Addl. Civil Judge Beawar dated 16th November, 1968 (Ex. 41) in civil suit No. 4/1964 could not operate as res-judicata in as much as no relief was claimed against the respondent in that suit and the question of relationship of landlord and tenant between the appellant and the respondent was not in issue in the said suit and the same has not been decided in that case. Shri Surana has also submitted that the order (Ex.-17) dated 13th September, 1974 passed by the Addl. Civil Judge, Ajmer in execution case No. 2/74 could also not operate as res judicata against respondent because in his objection petition the respondent had raised the plea that he is in possession of the suit premises in his own right and he has acquired title over the same by adverse possession and the said plea has not been negatived by the Addl. Civil Judge.
12. In my view it is not necessary to go into first two contentions urged by Shri Bhandari because he is entitled to succeed on the basis of the third contention in view of the recent decision of the Full Bench of this Court in Smt. Pushpa Sharma v. Gopal Lal Rawat 1986(2)WLN 130. This contention is not covered by the questions that have been framed. But since it is a pure question of law based on the decision of the Full Bench of this Court I have allowed the learned Counsel for the appellant to raise it and I have heard arguments on it.
13. In Smt. Pushpa Sharma v. Gopal Lal Rawat 1986(2)WLN 130 one of the question which has been considered by the Full Bench of this Court is whether in a suit based on relationship of landlord and C tenant seeking a relief of eviction on a ground set forth in Section 13 of the Act a decree for possession can be granted in favour of the plaintiff on the basis of his title This Court answered the said question in the positive and held that in a suit based on relationship of landlord and tenant making prayer for eviction on a ground set forth in Section 13 of the Act, a decree for possession can be granted in favour of the plaintiff on the basis of title. In that content this Court has observed as under:
There can be no manner of dispute that in a suit for eviction on the basis of tenancy, all that need be gone into is whether there is a contract of tenancy between the parties and if the plaintiff fails to prove such contract of tenancy, then the court is entitled to dismiss such suit But in case where the question of title has also been gone into and the parties were at issue on the point of title and the parties had led evidence, it would not be just and proper to direct the plaintiff to file another suit for possession on the basis of title. Law courts always discourage and abhor the multiplicity of suits. The only relevant circumstance in such a case would be whether any prejudice has been occasioned to the other side."
"It is how ever, made clear, that as a general rule where a suit is filed on the basis of tenancy and relationship of landlord and tenant then such suit should be decided on the basis of tenancy alone and it should not be converted into a title suit. How ever, in a given case as to present one where, the defendant herself sets up a title adverse to the plaintiff and/or does not raise an objection in framing an issue on the basis of title and leads evidence with full knowledge and the trial court gives an adverse finding on such issue against the defendant then the defendant cannot be permitted to advance the plea in the Appellate Court or Revisional court that no decree for possession can be granted in such a case.
14. In the present case the respondent has in his written statement raised the plea of adverse possession and his having acquired the title over the suit premises by adverse possession and he has also adduced evidence in that regard. The said plea of the respondent has been considered by the trial court while dealing with issue No. 1, us to whether the respondent is in possession of the suit premises as a tenant on monthly rent of Rs. 15/-, but was not accepted. Under the circumstances I am of the opinion that even though the suit has been filed by the appellant on the basis of the relationship of landlord and tenant, he can claim that the suit may be decreed on the basis of title. The Addl. Civil Judge was, therefore, not right in holding that since the suit was based on relationship of landlord and tenant, the appellant cannot succeed on the basis of title.
15. As regards the plea of adverse possession raised by the respondent, it may be mentioned that in the proceedings in execution of the decree passed in the partition suit, the appellant decree holder had obtained symbolical possession of the suit premises under Order 21, Rule 36, CPC on 20th January, 1972 which is borne out by the report of the Asstt. Nazir, Civil Court, Beawar dated 23rd January, 1972 in the execution proceedings ('which is contained in Ex 35). In para 9 of the objection petition (Fx-39) which was submitted by the respondent in Execution case No. 2 of 1974 before the Addl. Civil Judge, Ajmer it has been stated that the decree-holder could only obtain symbolical possession under Order 21, Rule 36, CPC and the same had already been delivered to him. This would show that the respondent himself has admitted that symbolical possession had been delivered to the appellant.
16. In M.V.S. Manikayah Rao v. M. Narasimhaswami and Ors. it has been laid down that if the person against whom the plea of adverse possession is set up shows that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. It has also been observed in this case that the question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law. In that case possession was obtained under an order for delivery of symbolical possession and it was he'd that irrespective of the question whether it was legal or otherwise the purchaser did obtain possession and this was an interruption of adverse possession
17. In Joyagopal Mundra v. Gulab Chand Agarwalla and Ors. a Full Bench of the Orissa High Court has held that by obtaining delivery of symbolical possession the prior adverse possession of the judgment-debtor comes to an end, and the decree-holder who obtains such symbolical delivery of possession against the judgment-debtor in execution of decree can file a suit for recovery of possession within 12 years of the date of delivery of symbolical possession.
18. Similarly in Nagamalai Thevar v. Pandaram and Anr. , it has been laid down that delivery of symbolical possession arrests the continuity of adverse possession of persons in possession and the suit filed within 12 years of the day of delivery was in time.
19. In view of the aforesaid decisions, it must be held that the nature of the possession of the respondent over the suit property prior to 20th January, 1972. the date of delivery of symbolical possession is not of much significance because even if the said possession was adverse in nature, the said adverse possession came to an end with the delivery of symbolical possession on 20th January 1975. The present suit was filed from the date of delivery of symbolical possession.
20. As regards the agreements for sale Ex A 2 and Ex A 3 on which reliance has been placed by the respondent, it may be stated that the Addl. Munsif has considered the said agreements and has found that no reliance could be placed on the same and that on the basis of these documents it can not be said the appellant is in possession of the property on the basis of doctrine of part performance. The Addl. Civil Judge, in appeal has not reversed the said finding recorded by the Addl. Munsif. I have considered the said finding recorded by the Addl. Munsif in the light of the evidence on record and I am agreement with the same.
21. It must, therefore, be concluded that the respondent has failed to establish his right to remain occupation of the suit premises and the appellant is entitled to obtain possession of the same. The judgment and decree of the Addl. Judge, Ajmer dated 23rd August, 1979 cannot, therefore, be upheld and must be set aside.
22. In the result, the appeal is allowed. The judgment and decree 23rd August, 1979 passed by the Addl. Civil Judge, Ajmer in civil appeal No. 68 of 1978 is set-aside and a decree for possession of the suit premises is passed in favour of the appellant and against the respondent. The respondent is given two months time to vacate the premises. There will be no order as its costs.