Kamla Devi vs Om Prakash

Dr. Vineet Kothari, J.—These two appeals are filed by the defendants aggrieved by the judgment & decree of eviction dated 27/3/2009 passed by the learned Addl. District Judge (Fast Track), Abu Road in eviction suit no. 8/08-Om Prakash vs. Kamla Devi & Ors. The decree was passed on the ground of subletting. The other grounds taken by the plaintiff-respondent were the bonafide necessity of the landlord and his family members including his brother and non-user of the suit property etc. The courts below decided all the issues in favour of plaintiff and granted the decree in favour of present respondent-plaintiff. The defendants have filed the present appeals being aggrieved by the said judgment and decree. By the interim order dated 28/10/2009 passed in CFA No. 334/2009, a coordinate bench of this Court stayed the execution of the judgment & decree dated 27/3/2009. In connected appeal No. 365/2009, on 1/12/2010, a coordinate bench disposed of the stay petition by observing that in view of the fact that execution of the impugned judgment and decree has already been stayed in connected appeal, no separate order is required.

Learned counsel for the defendants, Mr. Sajjan Singh submitted that the decree under appeal deserves to be set aside as it would appear from the application filed by the respondent plaintiff in this Court on 1/7/2014(I.A. No. 3108/2014) that since there has been partition of the suit property between the brothers, namely; present respondent-plaintiff-Om Prakash and his brothers, Rajendra Prasad and Hanuman Prasad of the suit property, the shop in question has fallen in the share of Rajendra Prasad, after the said partition on 16/11/2011 vide Annex. R./A/1-partition deed, and the respondent-plaintiff is paying monthly rent of Rs. 3000/- to his own brother.

Mr. Sajjan Singh, learned counsel for the defendants submitted that the need for eviction which was sought for his brother Rajendra Prasad, since he himself became the owner of the suit property, now vanquished and cannot be sustained. Mr. Sajjan Singh also contended that the defendant-Kamla Devi had entered into the partnership with respondent no. 5-Mr. Bharat s/o Kanti Lal Jain and since the landlord had accepted rent from the said Bharat Jain, therefore, the ground of subletting of suit shop to Mr. Bharat was also not sustainable and on this ground also the eviction decree deserve to be set aside and the appeal no. 365/2009-Bharat vs. Om Prakash deserves to be allowed. He also urged that the ground of non-user of the property and subletting are mutually conflicting grounds, as the suit property at the same time cannot go into non-user and can also be sublet and, therefore, the decree deserves to be set aside.

Per contra, Mr. Manish Shishodia, learned counsel appearing for the respondent landlord submitted that the ground of non-user of the property was of the first floor of the suit property, which was used for residential purpose by the defendant and for considerable time the same was not used by the defendant tenant and that ground of non-user of first floor premise having been established by the landlord, the decree is sustainable on that ground. He also submitted that in the absence of any partnership deed produced by the defendants, there was no question of any acquiescence on the part of plaintiff-landlord about such partnership between them and since parting with the possession of the suit property in favour of the sublettee-Bharat Jain was proved by the landlord, therefore, the decree is sustainable even on that ground also.

Regarding partition of the suit property between the parties vide partition deed dated 16/11/2011 filed along with the I.A. No. 3108/2014, Mr. Manish Shishodia submitted that even though the suit shop has fallen in the share of brother-Rajendra Prasad, the fact is that the present plaintiff-landlord-Om Prakash has to pay rent of Rs. 3,000/- to his own brother and this clearly goes to show that he needs the premises in question badly to run his own business.

Having heard the learned counsels for the parties and upon perusal of the evidence on record, this Court is of the considered opinion that the contentions raised on behalf of the defendant-tenants are not sustainable and the present appeals filed by the defendant tenants deserve to be dismissed. The reasons are as follows.

As far as the personal and bonafide necessity of the landlord or his family member is concerned, it has been argued at the bar that the property in question was a joint Hindu Family property and the need claimed and established by the landlord was for himself (Om Prakash) as well as for the business need of the family. In the course of time, if the partition has taken place between the brothers, there being three brothers, namely, Om Prakash, Hanuman Prasad and Rajendra Prasad, the need of the family as such cannot be said to have vanished. Even though the suit property has fallen in the share of Rajendra Prasad, the need of one of the brothers or family as such on the date of filing the suit is established and the changed circumstances do not mean that this need is altogether vanished. There is considerable force in the contentions of the learned counsel for the respondent-plaintiff that after partition, if the landlord-Om Prakash, himself has to pay rent to his own brother, the need of the landlord is not only established but is further aggravated. Unless the said suit shop is vacated and the respective brothers can do their respective businesses in their portions after partition, the need cannot be said to have finished. Therefore, this Court is of the opinion that the decree given by the court below on the ground of personal & bonafide necessity does not deserve reversal but needs affirmation on the same ground.

Though the decree of eviction could be sustained even only on one ground, a brief observations on the other arguments raised by the learned counsel for the defendant-tenants is also opportune.

There is no conflict in the grounds for eviction of non-user of the property and subletting, as contended by the learned counsel for the appellant, Mr. Sajjan Singh. As rightly clarified by the learned counsel for the respondent-plaintiff, Mr. Manish Shishodia that non-user was of the first floor, which was used for residential purpose and on account of non-user for stipulated period of the first floor having been established, the decree on that ground is still sustainable. Subletting was for the ground floor shop for seeking eviction of the suit property. Therefore, this contention of the learned counsel for the appellant-tenant is liable to be rejected and same is accordingly rejected.

Further, there is no question of the ground of subletting being undone on account of claimed partnership between Smt. Kamla Devi and Bharat Jain. There is no document on record to establish that such partnership between these two persons existed, much less registered partnership deed. There is nothing on record to show that the plaintiff accepted the rent and issued rent receipt in the name of Bharat Jain, as claimed. Therefore, there is no question of treating the appellant-defendant-Bharat Jain as a tenant of plaintiff-landlord. If Smt. Kamla Devi, original tenant, has parted with the possession in favour of Bharat Jain without establishing any partnership with the help of document, the ground of subletting is also well proved by the plaintiff and there is no controverting material before this Court to upset these findings of the courts below. Thus, on all the aforesaid three grounds, taken together or differently, the decree of eviction deserves to be sustained.

In view of the above, this Court finds no force in the present first appeals and the same deserve to be dismissed and are hereby dismissed.

The appellant-defendant-tenants shall hand over the peaceful & vacant possession of the suit premises to the respondent-plaintiff within a period of three months from today i.e. on or before 10th March, 2015 and shall pay mesne profit @ Rs. 5,000/- per month from January, 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 and in case there is any default in payment of mesne profit, the period of three months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-defendant-tenants shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within two months from today, otherwise the same will bear interest @ 9% per annum. The appellant-tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises 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 the same would be treated as void. The appellant-defendant-tenants 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 shop is not handed over to the respondent-landlord within a period of three months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.