Rajasthan High Court - Jaipur
Sardar Singh vs Prakash Singh on 30 October, 1987
Equivalent citations: 1988WLN(UC)89
JUDGMENT Milap Chandra, J.
1. This second appeal has been filed by the defendant against the judgment and decree of the learned District Judge, Sri Ganganagar by which he dismissed the appeal and confirmed the judgment of the learned Additional Munsif, Sri Ganganagar, decreeing the suit for ejectment on the ground of reasonable and bonafide necessity.
2. This appeal was admitted on 21-10-1985 on the following question of law, namely:
Whether the suit for eviction on the ground of personal necessity from the shop in dispute could be entertained before the expiry of 5 years of the coming into force of new tenancy, which according to the defendant appellant came into existence on 7-1-1974?
3. The defendant pleaded in his written statement that the plaintiff previously filed four suits for ejectment against him and other three tenants, a compromise was effected on 7-1-1974 amongst all the four tenants and the plaintiff one shop was vacated and its possession was given to the plaintiff, the rent of his shop was enhanced from Rs. 40/- to Rs. 80/- and accordingly new tenancy in respect of the suit shop was commenced w.e.f. 7-1-1974. The plaintiff filed rejoinder stating that the defendant is in occupation and possession of the suit shop for last 15 years, no change took place in the demised premises by virtue of the compromise dated 7-1-1974 and no new tenancy commenced w.e.f. 7-1-1974.
4. The learned Counsel for the plaintiff-respondent raised a preliminary objection that the appeal is not maintainable as objection under Section 14(3), Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (here in after to be called 'the Act') was not taken before the First Appellate Court as is clear from its judgment. It is correct that this objection was not raised before the First Appellate Court during the argument though it was taken in the memo of appeal. Despite it this Court can permit the appellant to raise it in the second appeal as it goes to the root of the matter. It is also a jurisdictional point. This is clear from the provisions of Sub-section (3) of Section 14 of the Act. It runs as under:
(3) Not with standing anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in Clause (h) of Sub-section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant.
There is no force in the said preliminary objection of the learned Counsel for the plaintiff-respondent.
5. The plaintiff Prakash Singh PW 1 has categorically deposed that the suit shop is in possession and occupation of the defendant for last 15-20 years. In cross-examination, he categorically denied that new tenancy commenced in pursuance of the compromise dt. 7-1-74. The statement of the defendant Sardarsingh DW1 starts with the sentence **esjs ikl nqdku eqruktk 1964 ls fdjk;s ij gS A** He has not stated anything more on this point. Great reliance has been placed by the learned Counsel for the appellant on the compromise Ex.A/2 filed in the previous Suit No. 30/72 for ejectment in support of his contention that old tenancy stood surrendered and a new tenancy came into existence in pursuance thereof. He placed reliance on 1948 Patna 407; 1957 AP. 619; 1952 Cal. 196 and 1957 Allahabad 346. The compromise Ex. A/2 simply shows that the monthly rent was enhanced to Rs. 80/-. It has been held in Gappu Lal v. Thakurji Sriji Dwarkadasji AIR 1968 SC 1291, that a mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of new tenancy. In Pandit Kishanlal v. Ganpatram Khosla , it has been observed as follows:
Property demised (see Section 108(g) of the Transfer of Property Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant.
6. It is not stated in the compromise Ex. A 2 that the actual and physical possession of the demised shop was delivered to the plaintiff by the landlord in pursuance of the surrender of the old tenancy and was again taken back in pursuance of new tenancy. It is not the case of the defendant that the terms of the tenancy were varied except the enhancement of rent from Rs. 40/-to Rs. 80/- p.m From the fact of the enhancement of the rent alone, it cannot be said that new tenancy came into existence w.e.f. 7-1-1974. The facts of the cases relied upon by the learned Counsel for the appellant are quite different and distinguishable. In 1948 Patna 407, previously a part of the premises was in tenancy and subsequently entire premises were leased out. In 1957 A P. 619, there was surrender of the tenancy. In 1952 Calcutta 196, previously there were three joint tenants and subsequently there remained only two joint tenants. In 1957 All 346 many terms of the tenancy were changed. Thus no case helps the appellant. In view of these facts and circumstances, it is very difficult to hold that fresh tenancy of the suit shop commenced w.e.f. 7-1-1974. The provisions of Section 141(3) of the Act are not attracted in the case. The suit is perfectly maintainable. The appeal has no force.
7. In the result, the appeal is dismissed with costs.