Laxmi Narain vs Smt. Saraswati Devi Mantri

Mohammad Rafiq, J.—This is defendant''s second appeal directed against judgment and decree dated 11.02.2013 of learned Additional District Judge No. 2, Ajmer, whereby judgment and decree dated 16.09.2008 of learned Civil Judge (Senior Division), Ajmer, decreeing the suit of the plaintiff for eviction and arrears of rent, has been affirmed. Plaintiff-respondent filed a suit for possession, injunction and recovery of arrears of rent/mesne profits against defendant-appellant stating therein that defendant-appellant is tenant in his north facing shop on the ground floor of the property situated at House No. 183/1 in Chhoti Basti, near Barah Ghat, Pushkar, on monthly rent of Rs. 300/-. The disputed property was purchased by plaintiff-respondent through registered sale deed on 10.07.2003 from one Ravi Kumar. Plaintiff served a notice on the defendant to vacate the shop. Defendant after receiving the notice declared himself as owner of the suit premise and sent a reply to the notice to plaintiff on 18.09.2000. It was alleged that the defendant started damaging the suit premise and had also broken the roof stones. There is an apprehension of alienation of the disputed premise by the defendant. A sum of Rs. 26,600/- was claimed as mesne profit, damages and legal fee for the Advocate. In the plaint, prayer was made that the defendant be restrained by decree of injunction and the vacant possession of the disputed premises be handed over to the plaintiff.

Defendant-appellant contested the suit by filing written statement. It was pleaded that Beni Gopal, elder brother of defendant, was tenant of Swaroop Narain Agarwal and the tenancy of the disputed premises commenced from Hindi calendar month instead of 1st of each English calendar month. Prior to Beni Gopal, his father Gordhan Ji was the tenant in the disputed premise. Beni Gopal merely used to assist Gordhan Ji. In the written statement it was pleaded that tenancy does not commence on the 1st of Hindi calendar month. In fact, it is as per the Hindi calendar. Beni Gopal, elder brother of defendant, was the original tenant in the shop in dispute. Gordhan Ji, father of defendant, was tenant prior to him. Defendant Laxmi Narain started sitting in the shop with his father Gordhan Ji and also with his brother Beni Gopal to assist them. Plaintiff purchased the shop from its erstwhile owner, whereas the defendant was in possession of disputed shop for last more than 12 years, without making payment of any rent, thus he acquired title by way of adverse possession. It was denied that plaintiff has acquired the right by alleged sale-deed. As regards the notice u/s 106 of the Transfer of Property Act, 1882, dated 15.07.2003, it is contended that the said notice was in fact issued to defendant-appellant on 26.08.2003, hence the defendant replied to the aforesaid notice on 18.09.2003 through his counsel. In the additional pleas, it was stated that late Gordhan Ji was tenant in the suit premise and thereafter Shri Beni Gopal became tenant of the suit premise. Defendant-appellant used to work with Shri Gordhan Ji, during his lifetime. The last rent of the premise was paid to late Swaroop Narain on 11.12.1974 and thereafter no rent was paid to any person.

Shri Neeraj K. Tiwari, learned counsel for defendant-appellant, argued that learned courts below have erred in deciding the question of relationship of the parties as tenant and landlord. The notice dated 25.12.2003 (Exhibit-7), whereby the plaintiff has terminated the tenancy of the defendant, has wrongly been considered by both the courts below. The appellant had never been the tenant in the disputed property. From the document, it is clear that Beni Gopal was the tenant of erstwhile owner of the suit premise, from whom the plaintiff purchased it. Hence there was no relationship of landlord and tenant between the plaintiff and defendant, and no question does arise of termination of tenancy by notice u/s 106 of the Transfer of Property Act. The defendant-appellant had been in possession of the suit premise, which was hostile to the original landlord as he had not paid any rent. Beni Prasad did not pay the rent after 11.12.1974 and, after his death, the defendant-appellant entered into possession of the suit premise, which was in the knowledge of the erstwhile owner of the property, who did not make any effort to realize the land after 11.12.1974. Even the erstwhile owner was not produce as a witness by the plaintiff to support the case. The suit was wrongly decreed. Thereafter the regular appeal filed by the defendant-appellant, was also dismissed. The appellant was in government job till 30.06.1983 and he came in possession after death of his brother Beni Gopal. Shyam Sunder (PW-1), husband of plaintiff, admitted that he never saw any document pertaining to relationship of landlord and tenant between the plaintiff and defendant. In the reply to the notice, the defendant had claimed himself to be the owner of the suit premise on the basis of adverse possession after the death of his brother Ben Gopal. Status of the appellant in the suit premise could not have been identical to that of his father and brother. The plaintiff has failed to prove the relationship of landlord and tenant between the plaintiff and defendant. It was argued that unless essential ingredient of relationship of landlord and tenant is proved, the suit for eviction against defendant-appellant could not be maintainable, because such suit lies only against tenant. Once it is found that the defendant-appellant is note tenant, the notice dated 25.12.2003 of termination of tenancy would have no effect in the possession of the suit premise. Even if elder brother of appellant Beni Gopal was tenant of erstwhile owner of the property, from whom the plaintiff has purchased the property, unless the relationship of landlord and tenant is proved, the suit may not be maintainable and liable to be dismissed.

Shri R.K. Agarwal, learned Senior Advocate, opposed the appeal and submitted that the suit premise is situated at Pushkar, where the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is not applicable. Once the defendant had served the notice u/s 106 of the Transfer of Property Act, his status as tenant comes to an end. In alternative pleas, it was stated that fact of adverse possession has not been proved by any evidence. There is concurrent finding by both the courts on all the issues. The appeal does not raise any substantial question of law therefore it is prayed that the same be dismissed.

On hearing learned counsel for the parties I find that the appellant in Para 17 of the additional pleas of the written statement has admitted that Gordhan, father of the defendant was the tenant in the disputed shop. Thereafter Beni Gopal, defendant''s elder brother, became the tenant and he last paid the rent on 11.12.1974. Beni Prasad died on 23.03.1976. The defendant remained in continuous possession after 11.12.1974 without payment of rent for 12 years. He stated that after his retirement on 30.06.1983 he has been running his business from the suit shop. The original landlord never came to collect the rent, which was lastly paid by Beni Gopal on 11.12.1974. Earlier the rent amount was Rs. 15/- per month. Thereafter the rent has not been paid for last more than 12 years and the disputed shop has been purchased by the plaintiff 17 years after adverse possession of the defendant. The plaintiff has admitted the receipt of notice u/s 106 of the Transfer of Property Act, 1882, but has stated that he sent the reply to such notice through his counsel. In these facts the plea of adverse possession could hardly be said to be available to the defendant. Possession of the defendant-appellant was permissible in nature from the commencement of tenancy, which is evident from his own plea in the written statement. He also admitted having not paid the rent for last more than a decade. That furnishes a valid basis to the plaintiff for termination of tenancy. He accordingly sent the notice u/s 106 of the Transfer of Property Act. It is not proved that the possession was adverse. The defendant has failed to prove by evidence as to how, when and from what time his possession became hostile to the erstwhile owner. Both the courts below have decided all the issues concurrently against the appellant.

I have considered the submissions of the learned counsel for the plaintiff-appellant in the light of the findings of both the courts below and I find that the issues involved in the present case relate to question of fact and there are concurrent findings of fact by both the courts below, which cannot be interfered with by this court in second appeal u/s 100 of the C.P.C. This appeal does not raise any question of law, much less any substantial question of law, in the meaning of Section 100 of the CPC. The second appeal is accordingly dismissed in limine. Consequent upon dismissal of appeal itself, the stay application, filed therewith, does not survive and same is also dismissed.