Brij Dei and Inder Lal Dass vs Ajay Sharma

Justice Rajiv Sharma, Judge

This Regular Second Appeal is directed against the judgment and decree dated 30.9.2002 rendered by the learned District Judge, Shimla in Civil Appeal No. 90-S/13 of 2000 whereby an appeal preferred by the appellants-defendants (hereinafter referred to as ''defendants'' for convenience sake) has been rejected and the Cross-Objections filed by the respondent-plaintiff (hereinafter referred to as ''plaintiff'' for convenience sake) have been partly allowed and the judgment and decree passed by the learned Sub Judge dated 27.6.2000 in Civil suit No. 392/1 of 1995 has been affirmed. According to the plaintiff, he purchased suit property alongwith a shop with two rooms and a balcony in the first floor of ''Fay Lodge'' comprised in Khasra No. 591 vide sale deed dated 4.7.1986 registered in the office of Sub-Registrar, Shimla at Sr. No. 421, Book No.1, Volume-38 dated 5.7.1986 for consideration of Rs. 35,000/-. It is stated that Brij Lal was statutory tenant in the suit property. He died on 7.5.1995 leaving behind no heir or person, who could inherit the tenancy rights under the provisions of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the ''Act'' for brevity sake). Brij Lal used to live all alone in the suit property being residential in nature. Defendants claiming themselves to be sister and brother of Brij Lal have unlawfully entered into the suit property. Plaintiff asked them many times to hand over the possession to him but to no avail. Defendants started threatening to commence commercial activities in the residential property. They were threatening to part with the possession. Brij Lal was tenant at the rate of Rs. 100/- per month. According to the plaintiff, defendants were in illegal possession of the suit property from 7.5.1995. Plaintiff has claimed Rs. 35,000/- as damages for illegal use and occupation of the suit property by defendants till the date of filing of the suit. Plaintiff has also claimed mesne profit from the defendants at the rate of Rs. 100/- per day till the date of possession of the suit property was delivered to him by the defendants.

Defendants resisted the suit by filing written statement. According to them, suit was bad for non-joinder of necessary parties. There existed relationship of landlord and tenant between the plaintiff and defendants, thus, civil court had no jurisdiction to try and determine the suit. Suit was not properly valued for the purpose of court fee and jurisdiction and the plaint was not verified in accordance with law. On merits, it is stated that the suit was bad for non-joinder of parties because Krishan Lal, brother of Brij Lal had not been made party. It was denied that the suit property was purely residential in nature. According to them there was bath house running in the suit property from the time of Brij Lal. The bath house was being run by Brij Lal with the knowledge and consent of the landlords. Suit property was taken on rent by Brij Lal for non-residential as well as residential purposes. Defendants used to help Brij Lal in running bath house and used to reside with him. Brij Lal has left no heir or person, who could inherit the tenancy rights. Defendants being brother and sister are entitled to inherit the tenancy rights after the death of Brij Lal. According to them, Brij Lal had executed a will dated 23.10.1979 in their favour whereby he has bequeathed his movable and immoveable property.

Replication was filed by the plaintiff. Issues were framed by the learned Sub Judge 1st Class, Court No.2 on 16.1.1996. Learned Sub Judge 1st Class decreed the suit to the effect that plaintiff was entitled to the relief of possession in respect of the suit property. Suit was also decreed to the effect that plaintiff was entitled for use and occupation charges as mesne profits from the defendants at the rate of Rs. 100/- per month from the date of filing of the suit till the possession was handed over. Defendants were restrained by way of permanent prohibitory injunction from running bath house in the suit property and any other commercial activities. Defendants feeling aggrieved by the judgment and decree passed by the learned Sub Judge 1st Class (2), Shimla dated 27.6.2000 filed an appeal before the learned District Judge, Shimla. Plaintiff also filed cross-objections against the judgment and decree dated 27.6.2000. Learned District Judge dismissed the Civil No. 90-S/13 of 2000 preferred by the defendants and partly allowed the Cross-objections No. 94-S/13 of 2000 vide judgment dated 30.9.2002. Hence, this appeal. It was admitted on the following substantial questions of law:

1 Whether the appellants being brother and sister of the original tenant late Sh. Brij Lal inherited the tenancy rights in accordance with general law of succession and the contrary findings recorded by both the courts below are illegal.

2 Whether the civil court had no jurisdiction to try the suit.

Mr. Romesh Verma has vehemently argued that the relationship of landlord and tenant existed between the plaintiff and defendants, thus, the civil court had no jurisdiction to try and determine the matter. He also argued that the tenancy was commercial in nature and the same has been inherited by the defendants under the general principles of succession. He has also relied upon ''will'' Ex.DW-3/A dated 23.10.1979.

Mr. Ajay Kumar learned Senior Advocate has supported the judgments and decrees passed by both the courts below.

I have heard the leaned counsel for the parties and have perused the records carefully.

Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence.

According to the plaintiff, who appeared as PW-5, he became owner of the suit property on the basis of sale deed Ex.PW-5/A. According to him, Brij Lal was tenant in the suit property comprising of three rooms Verandah and latrine at the rate of Rs. 100/-per month. Brij Lal died on 7.5.1995. He used to reside all alone and thereafter defendants came in illegal possession of the suit property. Defendants have no right to remain in possession of the suit property. Suit property is residential in nature and defendants were running bath house in illegal manner. Defendants were demanding money from him for giving possession. Defendants also wanted to put third person in possession of the suit property. Plaintiff was entitled to use and occupation charges at the rate of Rs. 100/- per day alongwith interest. He has also proved voter list Ex.PW-5/B. He has denied that the suit property was let out in favour of Brij Lal for residential and non-residential purposes. He has denied the suggestion that the previous owner had given permission to Brij Lal to run bath house. He has also denied the suggestion that due to the permission from previous land owner, Brij Lal used to run bath house with the help of defendants. He did not know Brij Lal. He has admitted that except defendants there was no legal representative of Brij Lal. He has not lodged report about the illegal possession of defendants with the police. He has not filed rent petition against the defendants. He has expressed his ignorance about the ''will'' dated 23.10.1979. He has denied the suggestion that bath house was run by the defendants with his consent.

PW-2 Prithi Chand has testified that Canara Bank has taken premises on rent for Holiday Home at Cart Road, Shimla at the rate of Rs. 10,200/- per month comprising of three bed rooms, one drawing room, one kitchen, one bath room, which was 150 yards away from Panchayat Bhawan.

PW-3 Gopal Sood has deposed that Sardar Gian Singh had rented out the premises in favour of Canara Bank, which was at the distance of 100 feet from the suit property. According to him, Brij Lal used to reside in the suit premises all alone. Brij Lal died in Snowdown Hospital. No one had come from his native place. He has never seen Brij Lal running any business in the suit property. He has admitted in his cross-examination that he never went inside the property during the life time of Brij Lal. He has admitted that there was a bath house in the suit property.

PW-4 Ashwani Puri has testified that he was residing at Shimla since his birth. Suit property is at the distance of 60 feet from his own building. He knew Brij Lal. Brij Lal used to reside all alone in the suit property. Brij Lal retired from the Transport Department. He was not doing any commercial activities in the suit property. Sister of Brij Lal came in possession of the suit property after his death. He has denied the suggestion that defendant No.1 Brij Dei used to reside with Brij Lal from inception.

DW-1 Balbir Singh, who was working as Conductor with H.R.T.C., has deposed that he used to take bath in bath house of Brij Lal since 1976. It was situated at Bus Stand, Shimla. According to him, all H.R.T.C. Drivers and Conductors used to take bath in the said bath house. According to him, the suit property was residential as well as bath house. Earlier charges per bath was Rs. 1/-. In his cross-examination, he has admitted that defendant No.2 Inder Lal was employed with Education Department and was posted at Arki.

DW-2 Charan Singh has testified that he remained posted at Dhalli since 1975 in H.R.T.C. as Conductor. He used to go for bath in the bath house. There were four bath rooms and one latrine and one room for residence of Brij Lal. According to him, Brij Lal and Inder Lal used to run bath house. He was transferred to Rohru in 1982. As and when he used to come to Shimla he used to take bath in the bath house.

DW-3 Shanti Swaroop has testified that Brij Lal was personally known to him since 1973. Brij Lal alongwith Bachiter Singh came to him and expressed his intention to execute a ''will''. He took him to Petition Writer K.R. Chaudhari. He scribed the ''will'' Ex.DW-3/A, which bears his signatures in circle ''A''. According to him, the ''will'' was signed by Brij Lal and Bachiter Singh. The ''will'' was executed by Brij Lal at his own free consent.

DW-4 Bachiter Singh has testified that Brij Lal was known to him. The ''will'' Ex.DW-3/A was executed by Brij Lal. He has identified his signatures in circle ''B''. It was scribed by Kanganu Ram in the presence of Advocate.

DW-5 Kanganu Ram has testified that he has seen ''will'' Ex.DW-3/A. It was entered at Sr. No. 434 in his register. He has identified his signatures in circle ''C''. He has also testified that Brij Lal signed the ''will'' at circle ''D'' after understanding its contents.

DW-5-A Tilak Raj had brought the requisitioned record.

DW-6 Suresh Rana has testified that there was connection No. 3029. Certified copy of the same is Ex.DW-6/A. This connection was for residential building. According to him, there was another connection in the name of Brij Lal in Set No.3, which was commercial in nature. The same was installed on application submitted in the year 1975. In his cross-examination, he has admitted that in the map premises have not been shown commercial in nature. He has also admitted that in the sanction order, there is mention of domestic connection.

PW-7 Deep Ram has testified that he remained Helper with defendants from 1986 to 1994 in Shimla bath house. It is situated near Puran Mal Dharamshala, Cart Road, Shimla. It had four bath houses, which were used by the Drivers and Conductors. There was one room and verandah with Brij Lal. Bath houses were run by Brij Lal, Inder Lal and Brij Dei collectively. He could not produce any document to prove that he remained Helper with Brij Lal in the bath house. He has admitted that he has not seen any licence to run bath house.

PW-8 Inder Lal has deposed that Brij Lal was his brother. He was tenant in the suit property. Rattani Devi was its previous owner. Plaintiff has purchased the suit property in the year 1986. According to him, bath house was in existence from the last 35 years. Brij Lal expired on 7.5.1995. According to him, they used to help Brij Lal in running the bath house. According to him, there was commercial electricity connection of the bath house alongwith commercial water connection. According to him Brij Lal had given his property and the suit property to defendants in half share by way of ''will''. Rent of suit property was Rs. 100/-. Bath houses were used by the Drivers and Conductors of the H.R.T.C. He has tendered in evidence electricity bills mark ''A'' to ''G''. He has admitted that he remained posted at Arki since 1974. He never remained posted at Shimla. He could not say about the ration card at Shimla. He has admitted that they have filed rent petition against the plaintiff mark PX and PY. He has admitted that he has not taken permission from the Government to run bath house. He could not tell the exact year from which they started bath house. He could not narrate when electricity and water meters were installed.

DW-9 Surinder Sharma has deposed that account number of electricity meter installed in the suit property was 24/C and the bills were Ex.DW-9/A and Ex.DW-9/B dated 23.3.1999 and 27.7.1999. He could not state when the electricity meter was installed. According to him, it was commercial in nature. In his cross-examination, he could not state the year in which the meter was installed. He has admitted that there is a set procedure for installing electricity meter, i.e. submission of application, test report and permission of land owner but he could not say whether in the present case these formalities were completed or not.

DW-9-A Brij Dei has testified that in the suit property Brij Lal was tenant at the rate of Rs. 100/- per month. He died in May, 1995. Defendants used to help Brij Lal in running bath house. Plaintiff was not receiving rent from them. Bath houses were being used by the Drivers and Conductors of the H.R.T.C. There were electricity and water connection in the suit property. In her cross-examination, she could not state that she has obtained ration card in the year 1995 or the defendants'' name were in the voter list at the address of suit property. She has admitted that Ex. PX and PY bear her signatures. According to her, Brij Lal has executed ''will'' in their favour. They were not keeping written account of bath house. She was not in a position to establish that Brij Lal has sought permission from the Government to run the bath houses.

It is evident from Ex.PW-5/A sale deed that plaintiff has purchased the suit property from Smt. Rattani Devi Banta and Smt. Subadna Butail for sale consideration of Rs. 35,000/-. The suit property comprised of three residential rooms, verandah and a latrine occupied by Brij Lal in the ground floor. It is stated in Ex.PW-5/A that Brij Lal was in occupation of residential set in the ground floor. Defendants have failed to prove that the tenancy was commercial in nature. The premises were let out to Brij Lal for residential purposes and not for non-residential purposes. According to PW-3 Gopal Sood, Brij Lal used to live alone. Brij Lal died in Snowdown Hospital. PW-4 Ashwani Puri has also deposed that Brij Lal used to live alone in the suit property. He has retired from Transport Department and was not doing any commercial activity in the suit property. PW-5 Ajay Sharma has categorically denied that bath houses were being run with his consent. He has also denied the suggestion that previous owner had given consent to run the bath house. He has also denied the suggestion that the premises were non-residential. DW-1 and DW-2 were working in the H.R.T.C. According to them, Brij Lal was running bath houses and they used to take bath in the bath house. These witnesses are interested witnesses since Brij Lal has also retired from the H.R.T.C. DW-7 has admitted that Inder Lal was employed at Arki and used to reside there. There is no material on record to prove that Brij Lal had obtained licence to run the bath house. No inference can be drawn on the basis of Ex.DW-6/A that commercial water connection was obtained by Brij Lal with the consent of the owner. DW-6 has admitted that for obtaining second connection, there was no mention that the connection was meant for commercial purpose. DW-9 Surinder Sharma has testified on 15.5.2000 that the electricity meter installed in the disputed premises was commercial as per account No. 24-C. In his cross-examination, he has admitted that there was no material on record to show that as to when the meter was installed and who had applied for the connection. The plaintiff has duly proved that the defendants after the death of Brij Lal have started running bath house in the suit premises without his consent. Since the premises let out to Brij Lal were residential, there was no occasion for the same being inherited by the defendants after his death. Since defendant No.2 was working at Arki as Librarian, it cannot be presumed that he was helping his brother in running the bath house at Shimla.

Now, the Court will look into the ''will'' dated 23.10.1979. Since the tenancy was not commercial in nature, it is reiterated that the same could not be bequeathed by Brij Lal in favour of defendants vide ''will'' Ex. DW-3/A. Defendants have also failed to prove that the bath house was being run for the last 34-35 years. There is variance in the pleadings of the suit as well as the petition filed by the defendants before the Rent Controller earlier. According to Ex. PX and PY the premises were let out to them, which were residential as well as non-residential in nature. It has also been stated that the premises were occupied alongwith Brij Lal for the purpose of residential purposes and the defendants were using the premises for commercial purposes as bath houses with the help of 2-4 employees. Now, case set up by the defendants in the present suit in written statement is that they have inherited the tenancy from Brij Lal.

Mr. Romesh Verma has relied upon Vinod Kumar versus Rajesh Kumar and others, 1995 (1) S.L.C. 452. The facts of this case are distinct. In this case, the premises were commercial and this Court has held that the same could be inherited under general principles of succession.

There is no illegality in the findings recorded by the learned District Judge that Rs. 30/- per day was the minimum amount to which the plaintiff was entitled as mesne profit from the defendants for unauthorized use and occupation of the demised premises with effect from 8.5.1995. It has come on record that earlier Rs. 1/- was charged and thereafter revised to Rs. 10/- for use of bath house. It is held that there is no relationship of the landlord and tenant between the plaintiff and defendants. Thus, the civil court has the jurisdiction to adjudicate upon the matter. The premises being let out being residential the same could not be inherited by the defendants. The tenant under the Act has been given protection whereby the jural relationship of the tenant and landlord exists.

Their Lordships of the Hon''ble Supreme Court in Abdulla Bin Ali and Others Vs. Galappa and Others, have held that allegations made in the plaint decide the forum. The jurisdiction does not depend on the defence taken by the defendants in the written statement. Their Lordships have further held that where the plaintiff filed the suit treating defendants as trespassers, such a suit against a trespasser would lie in the civil court. Their Lordships have further held that since the suit was not filed on the basis of landlord-tenant relationship, revenue court will have no jurisdiction under the Hyderabad Tenancy and Agricultural Lands Act, 1950. Their Lordships have held as under:

There is no denying the fact that the allegations made in plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of the plaint as a whole it is evident that the plaintiffs-appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil court and not in the revenue court. The High Court, however, took the view that the plaintiffs-appellants had not claimed a declaration of title over the disputed plots and all that has been set up by them in the plaint is the relationship of landlord and tenant.

In our opinion the High Court was not quite correct in observing that the suit was filed by the plaintiffs-appellants on the basis of relationship of landlord and tenant. Indeed, when the defendants denied the title of the plaintiffs and the tenancy the plaintiffs filed the present suit treating them t the trespassers and the suit is not on the basis of the relationship of landlord and tenant between the parties. It is no doubt true that the plaintiffs had alleged that defendant 2 was a tenant but on the denial of the tenancy and the title of the plaintiffs-appellants they filed a suit treating the defendant to be a trespasser and a suit against a trespasser would lie only in the civil court and not in the revenue court.

We are, therefore, of the considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court and that the High Court has erred in law in non-suiting the plaintiffs-appellants on the ground that the civil court had no jurisdiction.

The learned counsel for the appellants, Sh. R.B. Datar, however, contended that the trial court as well as the first appellate court had decided all the issues involved in the case in favour of the plaintiffs-appellants and in case we come to the conclusion, as indeed we have come to, that the jurisdiction of the civil court is not barred, the judgment of the first appellate court should be confirmed and there is no need to remand the case again t the High Court for deciding it afresh on merits.

Their Lordships of the Hon''ble Supreme Court in Ramkanya Bai and another versus Jagdish and others, (2011) 7 SCC 752 have held that exclusion of the jurisdiction of the civil court is not to be readily inferred. Their Lordships have held as under:

In Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, a Constitution Bench of this Court held that exclusion of the jurisdiction of the civil court is not readily to be inferred with, unless the following, among other conditions apply:

(1) Where the statute gives a finality to the orders of the special tribunals the civil court''s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure............

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.

CMP No. 1100/2002

As far as CMP No. 1100/2002 filed under order 41 rule 27 of the CPC is concerned, suffice it to say that these documents could be seen if there was any jural relationship of landlord and tenant between the plaintiff and defendants. In view of this, there is no merit in this application and the same is rejected.