Gopal and Others vs Kamla Devi

Dr. Vineet Kothari, J.

This second appeal is arising out of the judgment and decree dated 07.04.1999 passed by the learned Additional District Judge, Gulabpura, District Bhilwara in Civil Appeal No. 11/1998 "Gopal and Ors. Vs. Smt. Kamla Devi" who dismissed the appeal filed by the present appellants-defendants-tenants and affirmed the judgment and eviction decree dated 18.03.1989 passed by the learned Munsif, Gulabpura in Civil Suit No. 9/1975 "Smt. Kamla Devi Vs. Chunni Lal" by which, the learned Munsif had decreed the suit filed by the respondent-plaintiff-landlord seeking eviction of the appellant-defendant from the suit shop and recovery of arrears of rent.

The present second appeal has been filed by the appellants, who were the sons of the original defendant-tenant-Chunni Lal before the learned Trial Court, against the concurrent decree of eviction granted by the Courts below in favour of the plaintiff-landlord.

The brief fact of the case are as follows: That the plaintiff-landlord filed the suit (No. 9/1975) aforesaid on 14.01.1975 against the original defendant-tenant-Chunni Lal with the averments that the defendant-tenant had taken the suit shop, which is divided in two portions, situated in the ''Nohra'' owned by the plaintiff at the monthly rent of Rs. 71/- on Samvat Year 2030 and as per term, the rent was to be paid monthly but the defendant failed to pay the rent; that the tenant, without the permission of the landlord, had made material alteration in the suit shop and, therefore, by serving a notice dated 23.09.1974, the plaintiff had terminated the tenancy of the defendant-tenant w.e.f. 15.11.1974. The plaintiff alleged that the said notice was served on the defendant on 26.09.1974. The plaintiff also averred that despite termination of tenancy, the defendant did not vacate the suit shop and, therefore, it was prayed before the learned Trial Court that the arrears of rent with interest and possession of the shop may be given to the plaintiff.

By filing a reply to the suit aforesaid, the defendants denied the relationship of landlord-tenant with the plaintiff and also raised various objections but admitted the fact of receiving the notice terminating his tenancy.

On the basis of pleadings of the parties, the learned Trial Court framed the relevant issues and after recording the statements of witnesses and evidence of the parties, vide judgment and decree dated 18.03.1979 had decreed the suit in favour of the plaintiff-landlord and granted eviction decree in favour of the plaintiff-landlord.

The learned Trial Court, while dealing with the issue relating to material alteration in the suit shop observed as under:-

The learned Trial Court, while dealing with the issue relating to denial of title observed as under:-

The learned Trial Court had ultimately passed the decree in the following terms:-

Being aggrieved by the judgment and decree dated 18.03.1989 passed by the learned Trial Court, the defendant-tenant filed the appeal in the Court of Additional District Judge, Gulabpura, District Bhilwara namely, Appeal No. 12/1998 which was also dismissed by judgment and decree dated 07.04.1999.

The learned First Appellate Court, while discussing the issue relating to material alteration observed as under:-

The learned First Appellate Court, while discussing the issue relating to denial of title observed as under:-

The learned First Appellate Court, in the ultimate analysis of the discussion, passed the following order which reads as under:-

Being aggrieved by the judgments and decree passed by the two Courts below, the defendant-tenant has filed the present second appeal before this Court. While admitting this appeal on 02.07.1999, a coordinate bench of this Court framed the following substantial questions of law arising out of the judgments of the two Courts for consideration in this appeal, which are as under:-

(i) WHETHER the statement of general power of attorney-holder of the plaintiff can at all be treated as statement of the plaintiff and if not so, whether entire suit ought not to have been dismissed for want of evidence?

(ii) WHETHER in the present case, the ground of denial of title is not available because the defendant-tenant has not renounced his character as tenant and has not denied the title of the original landlord?

(iii) WHETHER the plaintiff has failed to establish the material change in structure of the premises and the defendant was not liable for eviction on the ground of material alteration?"

Having heard the learned counsels for the parties and upon perusal of the impugned judgments and decree as also the records of the both Courts below, this Court is satisfied that essentially, the findings of facts are based on relevant evidence led before the Trial Court and the learned First Appellate Court has affirmed the findings on the issues of material alteration and denial of title claimed by the defendant-tenant, after re-appreciation of the evidence and, therefore, this Court is also of the opinion that the construction of wall covering the Varranda and putting the doors in the original structure of the suit shop by the defendant-tenant without the permission of the landlord were definitely falling within the definition of material alteration of the suit property. The other finding on denial of title are also upheld. The findings of the learned Trial Court on the issue of denial of title are also sustainable as instead of admitting the tenancy with owner of the suit property in question Smt. Kamla Devi, the defendant-tenant claimed that the rent has been given to the husband of the landlord-wife and in law, it would amount to denial of title, therefore, the findings given by the learned Trial Court and further affirmed by the learned First Appellate Court on this issue are perfectly justified and thus, the grounds of eviction on which the decree was given deserve to be upheld.

Therefore, the findings of the learned Courts below given on this issue cannot be said to be perverse and, therefore, eviction decree granted in favour of the plaintiff-landlord deserves to be upheld and the questions deserve to be answered in affirmative in favour of the respondent-landlord.

In view of the aforesaid circumstances, the present second appeal filed by the defendant-tenant is liable to be dismissed and the questions, as framed, deserve to be answered in favour of the respondent-landlord and they are hereby so answered.

Accordingly and in view of the above discussion, the present second appeal filed by the appellant-defendant-tenant stands dismissed. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.

In the circumstances of the case, it is directed that the appellant-defendant-tenant shall now hand over the peaceful and vacant possession of the suit shop to the respondents-plaintiffs within a period of six months from today i.e. on or before 31.07.2015 and shall pay mesne profit @ Rs. 5,000/- per month (Rupees Five Thousand p.m.) commencing from February, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent/plaintiff also and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the respondents/plaintiffs within three months from today, otherwise the same will bear interest @9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondents-plaintiffs within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court.