Moti Lal vs Manohar Lal and Others

V.K. Jhanji, J.—This second appeal is by defendants 3 and 4 directed against judgment and decree passed by the District Judge, Narnaul whereby defendants 3 and 4 have been held to be trespassers and a decree for possession has been passed against them.

In brief, the facts are that the shop in dispute was owned by one Keshav Dev. He had let out the shop to one Raghbir Singh. Vide sale-deed dated 12.10.1960, Keshav Dev sold the property to Manohar Lal (respondent No.1 herein). On sale, Raghbir Singh became the tenant of Manohar Lal and on an application filed by Manohar Lal for Fixation of fair rent, the fair rent of the shop was fixed at Rs.56/-per month. The sale made by Keshav Dev in favour of Manohar Lal was challenged by the sons of Keshav Dev, namely, Hans Raj, Suresh Kumar and Rishi Kumar, on the ground that the shop in dispute is the property of Hindu Undivided Family and the sale made by Keshav Dev is not for the benefit of the estate. On contest by Manohar Lal, the suit was dismissed by the trial Court on 8.5.1974. In the first appeal, judgment and decree of the trial Court was set aside and the suit decreed. Manohar Lal challenged the decree of the first appellate Court by means of Regular Second Appeal No. 1408 of 1979. At this stage, it is to be noted that in execution of the decree passed by the first appellate Court, the sons of Keshav Dev took symbolic possession of the property in dispute. While the Regular Second Appeal was pending, Manohar Lal filed Civil Misc. Application No. 3046-C of 1981 in which he stated that though the respondents therein have already been restrained from alienating the property in dispute, but he has an apprehension that after getting the property vacated from the old tenants, the same is going to be let out to the new tenants on premium. The sons of Keshav Dev denied this averment. However, S.P. Goyal, J, (as his Lordship then was) on 7.12.1981 passed the following order:

"The respondents have already been restrained from alienating the property in dispute in any manner during the pendency of this appeal. The apprehension now put forward is that the respondents are trying to get the property vacated from the old tenants and let out to new tenants on handsome premium. This averment is denied by the respondents but in any case it is ordered that if any part of the property in dispute is vacated by any of the tenants during the pendency of the appeal, it will not be let out to a new tenant without the permission of the Court. The appeal was earlier listed for hearing but it has been delisted. It is, therefore, ordered that the appeal may be listed for hearing in the week commencing January 11, 1982."

Subsequently, vide judgment dated 27.1.1983, Regular Second Appeal was allowed and in consequence thereof, sale made in favour of Manohar Lal was held to be valid. Raghbir Singh who was a tenant, died during the pendency of the Regular Second Appeal. The present suit was filed by Manohar Lal against the son and widow of Raghbir Singh and also against Moti Lal and Ravinder Prasad, arrayed as defendants 3 and 4 (appellants herein). In the suit, Manohar Lal alleged that during his life time, Raghbir Singh-tenant, ceased to do any business in the premises and the possession of defendants 3 and 4 on the property is that of trespassers'' being illegal and wrongful. He averred that they have no title, right or interest in the property and therefore, he is entitled to recover possession of the premises. Defendants 1 and 2, namely, the son and widow of Raghbir Singh in their written statement submitted that they have not been given any, share in the property of Raghbir Singh, nor any-one of them is in possession of the same. They submitted that defendants 3 and 4 alone are in possession. Defendants 3 and 4 in their joint written statement contended that Manohar Lal is not the owner of the, suit property and Suresh Kumar, Hans Raj and Rishi Kumar sons of Keshav Dev are the owners thereof. They also submitted that the firm, M/s Raghbir Singh Kesera in which they are partners, is contractual tenant under Suresh Kumar and Ors.. They also took up the plea that Raghbir Singh had a share to the extent of 10 per cent in the said firm, but during his life time, he executed will dated 23.4.1983 in favour of defendant No.4 bequeathing his share in favour of defendant No.4. They also submitted that defendants 1 and 2 have got no right, title or interest in the property because they had been separated by Raghbir Singh during his life time and were not given any share in the estate of the deceased. On the pleadings of the parties, the trial Court framed the necessary issues and after the evidence of the parties was recorded, the trial Court vide judgment dated 9.8.1989 dismissed the suit. The suit was dismissed primarily oh the ground that defendants 3 and 4 are sub-tenants and for recovery of possession of the shop from the sub-tenants, the jurisdiction of the Civil Court is barred. However, in appeal the judgment and decree of the trial Court has been set aside and defendants 3 and 4 have been held to be trespassers and consequently, the suit for possession has been decreed. Defendants 3 and 4 being aggrieved have come to this Court in Second appeal.

Though the appeal is at the stage of motion hearing, but since vide order dated 18.10.1996, V.K. Bali, J. had decided not to remit the case to the first appellate Court as had been pleaded by the counsel for the appellant, and had desired to hear the parties both on the question of law and facts, the counsel have been heard and whatever documents on record are referred to by the counsel, have been gone through.

It has been contended by Mr. M.L. Sarin, Sr. Advocate, for the appellants that the appellants are not trespassers but sub-tenants and so, they can be evicted after recourse to the provisions of the Haryana Rent Act. He contended that the Civil Court has no jurisdiction whatsoever to try the dispute and pass a decree for possession against the appellants. He further contended that the first appellate/Court has acted wholly arbitrarily in holding that no objection was raised by the appellants regarding the jurisdiction of the Civil Court to try the suit. He contended that the objection is apparent from the fact that a specific issue No.4 was framed by the trial Court in regard to jurisdiction of the Civil Court. He also contended that the finding of the first appellate Court is based on mere conjectures and surmises. The other contention raised is that the tenancy rights of Raghbir Singh were heritable and on his death, defendants 1 and 2 became tenants and the status of appellants is that of sub-tenants and not trespassers. Against this, Mr. H.L. Sibal, Sr. Advocate, for the plaintiff-Manohar Lal, contended that the case of the plaintiff right from the beginning had been that Raghbir Singh, tenant ceased to do any business in the premises and the possession of defendants 3 and 4 is that of trespassers as they are neither the heirs of Raghbir Singh nor they were inducted as tenant by the plaintiff. He contended that in order to circumvent the order of this Court in Regular Second Appeal whereby the sons of Keshav Dev had been restrained from inducting new tenants, a fake partnership was set up by defendants 3 and 4 whereby Raghbir Singh was shown to be a partner to the extent of 10 paisa. He has contended that both the Courts have held that the partnership is fake one. He thus, contended that once it has been held that the partnership is fake one, the status of defendants 3 and 4 is of trespassers. Mr. Sibal prayed that the appeal be dismissed.

On going through the pleadings and the issues framed in the suit, I find that the first appellate Court is not correct in saying that no objection Was raised by the appellants regarding the jurisdiction of the Civil Court to try the suit. In fact the objection was raised and for that matter, issue No. 4 was framed and onus was placed on the defendants to prove that Civil Court has no jurisdiction to try the suit. However, this omission on the part of the first appellate Court is not enough to set aside the judgment. The evidence brought on record has clearly proved that defendants 3 and 4 are trespassers and not sub-tenants, as has been argued by the ''counsel for the appellants. In order to dispossess a trespasser, remedy is by way of civil suit and the recourse to the provisions of the Haryana Rent Act is not permissible.

It is the admitted case of the parties that Raghbir Singh alone was a tenant in the shop in dispute and had been carrying on the business in the name of Raghbir Singh Kesera. During the pendency of Regular Second Appeal, plaintiff, Manohar Lal, apprehending that new tenants may be inducted in place of old tenants, made an application and on a prayer made by him, S.P. Goyal, J. directed that, during the pendency of the appeal the property shall not be let out to a new tenant without the permission of the Court. This order was passed on 7.12.1981 and the second appeal came to be dismissed on 27.1.1983. Defendants 3 and 4 came in possession of the property in dispute in December, 1982. Since there was a restraint order by this Court for not inducting new tenant, to circumvent the order a device of partnership was adopted. Manohar Lal immediately served notice dated 26.4.1983 (Ex.pW-5/1) on Raghbir Singh stating in clear terms that the transaction of partnership is sham, false and fictitious. The fictitious nature of the partnership is also clear from the fact that the share of Raghbir Singh to the extent of 10 paisa in the alleged partnership is also stated to have been bequeathed to defendant No.4 by means of will dated 23.4.1983. Counsel was unable to explain as to why Raghbir Singh would Execute will in favour of defendant No.4 in presence of his widow and son and that too only with regard to 10 paisa share in the partnership. The very execution of will dated 23.4.1983 in favour of defendant No.4 is a pointer towards the sham and fictitious nature of partnership. More so, no other documents like account books etc. have been "produced for showing that there had been any genuine partnership between Raghbir Singh and defendants 3 and 4. In fact defendant No.3 while appearing as DW-8 admitted that two months prior to the death of Raghbir Singh, tenancy was changed and a rent-note in that regard was executed. He firstly stated that the rent-note is lying in the shop, but then retracted and stated that no rent-note was executed. He, however, conceded that there, was a change in tenancy in December, 1982. This part of the statement Coincides with the execution of partnership dated 10.12.1982 which has been held to be fake one by both the Courts below. To outwit the restraint order, defendants 3 and 4 have not only set up a fake partnership, but have also gone to the extent of forging rent-receipts.DW-8, Moti Lal, on being confronted in his cross-examination, with receipts, Ex.DW-6/1 to DW-6/4, admitted that the receipts have been got prepared from Suresh son of Keshav Dev on the previous date of hearing. While noticing this in para 20 of the judgment, the first appellate Court has recorded that from the admission of DW-8, Moti Lal, it is evident that the receipts are forged and fictitious. Once it is accepted that there was no partnership between defendants 3 and 4 and Raghbir Singh, the obvious conclusion is that the status of defendants 3 and 4 is not of sub-tenants, but that of trespassers.

There is also no substance in the contention of counsel for the appellants that on the death of Raghbir Singh, defendants 1 and 2 inherited tenancy rights and so, in their presence no decree for possession can be passed against defendants 3 and 4 by the Civil Court. Defendants 1 and 2 namely, son and widow of Raghbir Singh, in their written statement have stated that they did not receive any property belonging to Raghbir Singh. They further pleaded that they are not in possession of the property in dispute which is possessed by defendants 3 and 4. In fact defendants 3 and 4 have stated in their written statement that defendants 1 and 2 have no concern whatsoever in the firm as they got separated with their father during this life time. In presence of these pleadings, there is no question of defendants 1 and 2 inheriting the tenancy. Moreover, the facts of this case speak volumes that defendants 3 and 4 in fact were inducted as new tenants in place of Raghbir Singh who had ceased to do any business in the premises. Partnership was created only in order to get over the restraint order which this Court had passed during the pendency of the second appeal. In a case where alienation/assignment was made in defiance of the restraint order, their Lordships of the Supreme Court in Surjit and others Vs. Harbans Singh and others etc. etc., , has observed that "if we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court in these circumstances has the duty, as also the right to treat the alienation/assignment as having hot taken place at all for its purposes''. The observations of the Supreme Court squarely apply to the facts of the present case as in this case as well, defendants 3 and 4 were put in possession of the shop in defiance of the restraint order. Once that is so, defendants 3 and 4 cannot claim any right in the property and their status being that of trespassers, a decree for possession has rightly been passed against them.

Counsel for the appellants has cited some judgments for the propositions that the tenancy rights are heritable and that the plaintiff is bound to prove his case despite the wrong pleas taken by the defendants in their written statement. It is not necessary to burden this judgment with the decisions cited by the counsel as the same have no application to the facts found in this case.

Consequently, this appeal being without any merit shall stand dismissed. No costs.