Piare Lal since Deceased through L.Rs. vs Kishori Lal and Another

R.L. Anand, J.—This is a defendant''s appeal which has been directed against the judgment and decree dated 29.11.1979 passed by the Court of Additional District Judge, Narnaul, who affirmed the judgment and decree dated 17.12.1971 passed by Sub Judge Ist Class, Rewari decreeing the suit for possession of shop No. 2220 filed by plaintiff-respondent Kishori Lal.

The brief facts of the case are that Kishori Lal plaintiff filed a suit for possession for the shop bearing No. 2220, situated in Gokal Bazar Rewari and the case set up by the plaintiff was that firm of the defendant namely Ramji Lal Piare Lal which filed an application u/s 4 of the rent Restriction Act for fixation of fair rent in the year 1960 against the previous owner of the shop in dispute which petition was dismissed on 19.1.60 and it was held in those proceedings that Ramji Lal was the tenant in the shop in dispute and he took the property on rent in his individual and personal capacity and that firm M/s Ramji Lal Piare Lal had no concern with the tenancy of the shop in question. Said Ramji Lal died in the year 1967 and thus according to the plaintiff he became entitled to the possession of the shop in dispute as the defendant who are partners in the firm are the trespassers. Therefore, possession is unauthorised. They were asked to vacate the shop in question but to no effect. The plaintiff has also alleged that he has suffered a loss of Rs. 40/- per month due to unauthorised occupation of the defendant, thus he is entitled to recover Rs. 960/- for the unauthorised use and occupation of the shop in dispute by the defendants. A notice was also given to the defendants to vacate the shop but to no effect.

The suit was contested by the defendants who filed a joint written statement admitting that the plaintiff was the owner of the shop in dispute. However, it was asserted that Ramji Lal was not the tenant in the shop in dispute in is individual and personal capacity but on the contrary firm known as M/s Ramji Lal Piare Lal was tenant. Fair rent application was filed by the firm, which was dismissed and the appeal was also dismissed but in the year 1961 a verbal agreement was entered into by the firm known as Ramji Lal Piare Lal and the previous owner admitted the firm to be a tenant of the shop in question. The defendants undertook not to file any fair rent application in future. The previous owner also issued a notice in the name of the firm and he had been realising the rent from the firm. Thus the tenancy of the firm had not been determined. It was denied that the plaintiff is entitled to possession or decree for the use and occupation of the shop in question at the rate of Rs. 40/- per month. It was also pleaded by the defendants that they are the partners to the firm known as Ramji Lal Piare Lal. Thus the death of Ramji Lal has no effect on the tenancy of the firm. In the alternative it was pleaded that if the firm known as Ramji Lal Piare Lal would not prove to be a tenant on the shop in question then the plaintiff is not entitled to any relief as the defendants are in possession of the shop in dispute for the last more than 25 years. Objection about the Court fee was also raised by the defendants.

From the above pleadings of the parties the following issues were framed by the trial Court:-

1) Whether the firm Ramji Lal Piare Lal is not the tenant on the shop in dispute?

2) Whether the suit is properly valued for purposes of court fee and jurisdiction?

3) Whether the plaintiff is entitled to recover damages amounting to Rs. 960/-?

4) Whether the plaintiff is estopped from denying the tenancy of the firm by acquiescence?

5) Whether the suit is time barred?

6) Relief.

Additional issue was also framed on 25.7.1970 to the following effect:-

1) Whether the order dated 19.1.60 referred in para 1 (a) of the plaint operates as res judicata?

The parties led oral and documentary evidence in support of their case and it was decided that firm M/s Ramji Lal Piare Lal was not the tenant of the shop in question and that the shop in question was in the tenancy of Ramji Lal alone and with his death the defendants became the tres passers. All the issues were decided in favour of the plaintiffs and against the defendants and finally the suit was decreed for possession and for use and occupation as prayed for. Aggrieved by the judgment and decree of the trial Court dated 17.12.1.971 the defendants filed first appeal in the court of Additional District Judge, Narnaul, who vide impugned judgment and decree dated 29.11.1979 dismissed the appeal but allowed cross objections which were filed by the plaintiff claiming costs. Aggrieved by the said judgment and decree the present Regular Second Appeal, which is being disposed of with the assistance of Shri Hemant Kumar, Advocate, on behalf of the appellants and Shri H.S. Awasthi Advocate, on behalf of the respondents with whose assistance I have been able to go -through the record of this case.

The material point for determination in this case is about the nature of the tenancy as to whether it was in the name of the firm or it was in the individual name of Shri Ramji Lal. Ex. P.2 is the material document which is to be read in this context. This is a rent note dated 1.5.4.1957 which was executed by Ramji Lal who has described himself to be the sole proprietor of M/s Ramjit Lal Piare Lal suggesting that Ramji Lal took the shop in question in his individual and personal capacity and not in the name of the concern. Also there is no averment in this rent note that Ramji Lal is the partner of the firm Ramji Lal Piare Lal or that the firm had taken the premises on rent through it partner. The things do not rest here. In the body of this rent note it has been incorporated which is an admission on the part of Ramji Lal that he was taking the shop in question on rent for his personal use and occupation, clearly ruling out the first and frontal argument raised by the counsel for the appellants that the tenancy was in the name of the firm. If the present defendant-appellants had nothing to do with the concern owned by Ramji Lal, they do not derive any title, right or interest in the demised premises after the death of Ramji Lal and their possession has to be held as of trespasser.

The shop in dispute was purchased by the plaintiff Kishori Lal from Sarvshi Hazri Lal, Ram Avtar and Om Parkash vide sale deed Exhibit P1 dated 15.2.1965 for a sum of Rs. 13,000/- and at that time a rent note dated 15.4.1957 was in operation and regarding which I have already made observations in the earlier portion of the judgment. A reading of the same clinchingly shows that Ramji Lal had taken the premises in dispute in his individual capacity being the sole proprietor of the concern M/s Ramji Lal Piare Lal and took the shop in dispute for his personal use. In these circumstances the contention raised by the learned counsel for the appellant that in the notice (Ex. D1) dated 18.6.1966 given by the plaintiff-Kishori Lal, he has allegedly admitted the firm M/s Ramji Lal Piare Lal as a tenant, has no force. An argument was also built by relying on earlier rent note dated 8.8.1951 executed by Piare Lal in favour of Bhagwan Dass with respect to the shop in question by urging that Piare Lal had taken the premises on rent from the firm M/s Ramji Lal Piare Lal, and, therefore, the said firm was a partnership. This argument is again devoid of any merit because in this rent note also Piare Lal described himself as the proprietor of the concern and it is not mentioned that the firm Ramji Lal Piare Lal was a partnership firm. Otherwise the convenient in the rent note (Ex. D2) ought to have been that M/s Ramji Lal Piare Lal through its partnership Piare Lal had taken the shop in dispute on rent. Also it appears from Exhibit D2 that said Shri Piare Lal took the shop on rent for his personal use. After the fresh execution of the rent note (Exhibit P2) in the year 1957 the terms of Exhibit D2 cannot be taken into consideration.

The litigation arose regarding these premises and it became the subject-matter of the fair rent proceedings when M/s Ramji Lal Piare Lal filed the proceedings u/s 4 of the Rent Restriction Act. There was a specific issue in those proceedings whether the petitioner is the tenant under the respondent or not because the stand of the respondent was that M/s Ramji Lal Piare Lal was never inducted as tenant and that Ramji Lal took the shop in dispute in his individual capacity. There is a clear-cut finding by the Rent Controller dated 19.1.1960 that the property was let out in the individual name of Ramji Lal and for that reason the petition was dismissed. The Rent Controller gave the findings in the order dated 19.1.960:

"...There is not single receipt in favour of the petitioner-firm and neither the petitioner has produced any account books to show that the rent paid was out of the funds of the firm. I am therefore, of the opinion and hold that in each of the six petitions, the petitioner firm was not the tenant under the respondents and since only a tenant can maintain a petition u/s 4 or 12 of the Rent Restriction Act, therefore, these six petitions filed by the petitioner are not maintainable and I decide issue No. I accordingly.

This order (Exhibit P5) of the Rent Controller was also challenged by the petitioners of those proceedings and was affirmed by the Appellate Authority vide order dated 1.12.1960 (Exhibit-L). The above two orders have become final leaving no scope that after the death of Ramji Lal the present appellants did not inherit any interest in the demised premises and they were never the partners of M/s Ramji Lal Piare Lal. In these circumstances their possession has to be held of a trespasser.

Learned counsel for the appellants then submitted that the decision of the Rent Controller and that of the Appellate Authority cannot operate as res judicata for the purpose of determining the nature of the tenancy in the present suit as those decisions were passed by a Court of special jurisdiction and in support of his contention he has relied upon the authority of the Full Bench of this Court reported as Amar Singh and Anr. v. Dalip (1981) 83 P.L.R. 649. It is correct that the findings of the special court may not operate as res judicata in a Civil Court, which is supposed to determine the rights of the parties independently, as held by the Full bench authority (supra), yet even if the two orders dated 19.1.1960 (Exhibit P5) and dated 1.12.1960 (Exhibit-L) may not be taken into consideration, still there is an overwhelming evidence in the shape of rent note (Exhibit P2) which governs the rights and controversy of the parties in the present suit and that document clearly shows that Ramji Lal was the sole proprietor of M/s Ramji Lal Piare Lal and he executed the rent note in his individual capacity and he alone took the shop for his personal use.

Faced with this situation, the learned counsel for the appellants, relied upon some documentary evidence to suggest that after the passing of the orders of the Rent Controller, the plaintiff had been treating the defendants as tenants as if the tenancy was in favour of M/s Ramji Lal Piare Lal. I would also like to discuss these documents, but at this stage I may hold that these documents do not lend any inference as being raised by the learned counsel for the appellants. Exhibit D1 is a writing dated 18.6.1966, which has been addressed in the name of the M/s Ramji Lal Piare Lal. Firstly, it is disputed by the owner-plaintiff that the words "M/s Ramji Lal Piare Lal" were written by him. Secondly, this document has to be read in the light of the rent note (Exhibit P2). If this document is read in the light of rent note (Exhibit P2), in which Shri Piare Lal has described himself as the owner and sole proprietor of M/s Ramji Lal Piare Lal and with this idea the latter has been addressed in the name of the concern and not in the name of partnership firm. Exhibit D-27 is the post office receipt by which an amount of Rs. 334.69 P. was remitted by M/s Ramji Lal Piare Lal of Rewari to Kishori Lal son of Mangal Ram plaintiff. But by mere sending the amount by money order and by describing oneself as a firm, a fresh tenancy is not created. The documents D3, D4, D5 and D6 are the copies of the account books. These documents are unilateral and cannot be treated detrimental to the interests of the plaintiffs until and unless a tenancy is created by agreement in favour of the defendants-appellants corroborating the stand of the appellants regarding the creation of fresh tenancy. The statement of Shri Badri Narain D.W. I, who allegedly brought the compromise between the parties by which the present plaintiffs allegedly accepted the firm as a tenant, cannot be accepted. This witness has been put up by the defendants in order to harm the interests of the plaintiffs. His earlier statement has been rightly appreciated and discarded by both the Courts below because the statement of this witness lacked probabilities. When initial tenancy was created in writing at two times, what was the bar on the part of the defendants to get new terms of tenancy in writing when the plaintiffs had really accepted the firm as a tenant. There was no occasion on the part of Badri Narain, the previous owner of this shop to intervene into the matter and plaintiffs would be the last person to accept the firm as a tenant when they were already successful in the previous litigation. Even otherwise it is not the case of the appellants that any fresh terms of tenancy had been settled.

If all allowances are given to the appellant by going through the documents D1 to D6, the only inference which can be drawn is that a bare rent has been accepted by the landlord, but it does not imply at all that he was willing to create a tenancy in favour of the shop. The learned counsel for the respondents relied upon Tek Chand v. Beli Ram (1994) 108 P.L.R. 44 where the original tenant parted with the possession and sublet the premises to his brother. The landlord accepted the rent. It was held that such acceptance of rent with knowledge or without knowledge or even acquiescence would not imply a waiver of the condition of a written consent for sub-letting. It was also held in Bhushan Drug House v. Des Raj 1980 (1) R.C.R. 49 that the tenant taking the premises on rent in his individual capacity, but entering in partnership, the landlord issuing rent receipt in the name of the partnership firm, such act on the part of the landlord does not create any tenancy between the partnership firm and the landlord simply on account of the fact that the rent was paid by the firm. The reason behind all these ratios is that tenancy can be created by an agreement and mere acceptance of rent by one party is not a proof of the creation of such tenancy.

For the foregoing reasons, I do not see any merit in this appeal and dismiss the same, leaving the parties to bear their own costs.