Punjab-Haryana High Court
Ved Parkash vs Mst. Lajwanti on 8 December, 1995
Equivalent citations: (1996)113PLR257
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT S.C. Malte, J.
1. Original defendant has preferred this appeal against the judgment and decree of eviction against him. The respondent-plaintiff is the owner of the suit property. The suit property is a shop. It was originally let out to one Dalip hand. Dalip Chand passed away sometime in 1976. It is contended by the respondent-plaintiff that after the death of Dalip Chand, the defendant/present appellant has unauthorisedly occupied the premises/The plaintiff, therefore, seeks possession and ancillary relief.
2. The appellant-defendant by his written statement contended that he acts as a 'Karinda' (as a representative of the mother of Dalip Chand who had become the tenant as per the provisions of the Haryana Urban (Control of Rent) & Eviction Act, 1973, (briefly stated Act of 1973). He further claims that Dalip Chand during his life time had executed a will dated 27.8.1977 and as per that will he bequeathed the tenancy right in the shop in favour of the said defendant.
3. In addition to the above contention, he has also raised technical objection that since Basheshwari Devi, the mother of deceased Dalip Chand had become a statuary tenant after the death of Dalip Chand, she should have been impleaded as a party to the suit. On this premises it was contended that the suit was liable to be dismissed for want of non-joinder of necessary party.
4. The trial Court found that the defendant was not entitled to maintain the suit because he was not a person who could have become a statutory tenant as per the provisions of the Act of 1973. The trial Court further held that the claim made by the defendant that he was Karinda, and in that capacity was in possession, was conflicting. His claim that he had come in possession on the basis of will executed by Dalip Chand was negatived. On facts it was held that he was not able to show that he was acting as a 'Karinda' of the mother of Dalip Chand. On this main finding, the trial Court decreed the suit for possession. The matter was taken to the first appellate Court. The first appellate Court concurred with the findings of the trial Court and dismissed the appeal.
5. The counsel for the appellant-defendant submitted that in both the lower Courts the question regarding non-joinder of necessary party has not been considered at all. It was submitted that Basheshwari Devi, the mother of deceased Dalip Chand, the tenant, has become a statutory tenant as per the provisions of the Act of 1973, and unless she was made a party to the suit, the suit was liable to be ; dismissed for non-joinder of necessary party. My attention was also invited to certain rulings, to which I will make a reference later on, to substantiate the argument. that in case of a non-residential premises, it is not necessary that the person claiming to be the heir to the statutory tenancy should be residing with the statutory tenant.
6. In response to the above argument, the counsel for the respondent submitted that the plea taken by the defendant as to the basis of possession, was conflicting. On one side he claims to be 'Karinda' or representative of the mother of deceased Dalip Chand, and at the same time he claims full tenancy rights on the basis of some will executed by Dalip Chand. It was submitted that both the Courts below have held that the defendant failed to prove that he was a representative of the mother of Dalip Chand. It was further submitted that the statutory tenancy is not a property that can be disposed of by a will. Regarding the non-joinder of necessary party, it was submitted that since Basheshwari Devi -does not seem to be in possession of the property, and in so far as it relates to the defendant Ved Parkash, the plaintiff was entitled to get the decree against him.
7. I find from the judgments of both the lower Courts that the issue regarding non-joinder of necessary party has neither been framed, nor been answered. By written statement the appellant-defendant has raised that question. As per Order 1 Rule 13 of the Code of Civil Procedure, objection as to the non-joinder of the necessary party should be taken at the earliest opportunity; and in case it turns out that the suit was hit by non-joinder of necessary party, it is liable to be dismissed. In this case, the centre question, therefore, would be whether Basheshwari Devi, the mother of deceased Dalip Chand was a necessary party to the suit. In order to resolve this aspect, one will have to take into consideration certain legal provisions under the Act of 1973 which governs the position of a statutory tenant, and inheritance on the death of a statutory tenant. Section 2(h) of the said Act provides that on the death of the tenant such of his heirs as are mentioned in the Schedule would be the tenant. In the list of Schedule, mother is shown as one of the persons entitled to inherit the property on the death of a statutory tenant. In other words, the mother of Dalip Chand has become the statutory tenant after the death of Dalip Chand. A question was addressed before both the lower Courts as to whether in such cases it should be proved that the said mother was residing with the statutory tenant Dalip Chand. This aspect has now been settled at rest in view of the ruling reported in (1986-1)89 P.L.R. 164 (F.B.) (Harish Chand and Ors. v. Kirpa Ram), . In that ruling the Full Bench of this Court, after taking into consideration various rulings, including of the Supreme Court, has concluded in para 15 as follows :-
"The imperative conclusion therefore is that the condition and order of inheritance of tenancy which find place in S.2(h) of the Haryana Act read with the Schedule appended thereto are limited in their application to a 'residential building'. The tenancy in respect of a "non-residential building" in the event of the death of the tenant devolves on the heirs of the deceased tenant in accordance with the general law of succession applicable to the tenant, and the heirs who step into the shoes of the deceased tenant continues to enjoy the protection afforded by the Haryana Act."
8. In other words, therefore, even as per the provisions of the Hindu Succession Act, 1956, the mother would be one of the heirs of the deceased tenant Dalip Chand. In view of this position, it is inevitable that the mother was a necessary party to the present suit. The possession of the shop in question cannot be obtained by the plaintiff until the rights of the statutory tenant Basheshwari Devi would also be adjudicated upon in view of the pleas that would be raised by the parties.
9. In the context of this, it is also pertinent to note that Basheshwari Devi, the mother of Dalip Chand, has come-forward as a witness - DW-4. In her deposition she has stated that the possession of the shop is with her as well as with Ved (defendant). She has stated that the said defendant was working in the shop in the life time of Dalip Chand, and after the death of Dalip Chand he continued to work. In other words, she claims to be in possession of the property along with defendant. Briefly stated, therefore, Basheshwari Devi appears to be in possession of the suit property, though the occupation of defendant, and his participation in the business running in the shop is also indicated in her deposition. The net result, therefore, would be that unless Basheshwari Devi is impleaded in the suit, and unless her rights and claim are adjudicated, it would not be possible to deliver the possession of the shop in question. In view of the that Basheshwari Devi becomes necessary party to the suit. Since a necessary party was not impleaded, the suit was liable to be dismissed on that count alone. Both the lower Courts, however, lost sight of this important aspect.
10. The question thus remains as to whether a decree can be passed against the defendant alone. It is true that the statutory tenancy was not a property that could have been bequeathed by way of a will. In support of that proposition, my attention was invited to a ruling reported in (1989-1)95 P.L.R. 30 (Smt. Daljit Kaur v. Smt. Rukman). There is no dispute in respect of that proposition. In view of that it follows that the will has become infructuous. Once the will has become infructuous, it will have to be ignored from consideration. Now the question, therefore, would be as to what is the status of the defendant in so far as it relates to his participation in the business. The evidence of Basheshwari Devi coupled with the evidence of defendant taken together, indicates that defendant was participating in the shop business since the life time of Dalip Chand. At any rate, Basheshwari Devi is also a person in possession of the suit property in her capacity as tenant who inherited after the death of her son Dalip Chand. Since she was a necessary party to the suit, the suit was liable to be dismissed due to non-joinder of necessary party. In view of that I do not feel it necessary to dilate further as to whether the defendant in his capacity as a 'Karinda' was entitled to retain the possession.
11. The net result ultimately would be that the appeal is allowed with costs. The judgment and decree passed by both the lower Courts is set aside and the suit is dismissed with costs.