Ram Kumar and others vs Bahal Kaur and others

B.S. Yadav, J.—The facts are that Parbhati Ram was a tenant in the shop in dispute situated in Saddar Bazar, Mandi Phul. He had taken that shop from the present respondent Smt. Bahal Kaur on rent for one year commencing from 25th April, 1965. However, he continued in possession. He died on 29th November, 1970. Smt. Bahal Kaur filed the suit, which has given rise to this appeal, for possession of the shop in dispute against the sons and widow of Parbhati Ram (deceased) on the allegation that after the expiry of the period of tenancy Parbhati Ram was in occupation of the shop in dispute as a statutory tenant and that the tenancy came to an end on his death and thus the defendants had no right to remain in possession of the shop.

The defendants contested the suit and pleaded that Parbhati Ram had taken the shop in dispute as Karta of Joint Hindu Family and, therefore, they were tenants of the shop alongwith Parbhati Ram and had a right to remain in possession of the shop even after his death. They also challenged the jurisdiction of the Civil Court to try the suit.

Upon the allegations of the parties the learned trial Court framed the following issues :--

Whether Parbhati Ram deceased took the shop on rent as Karta of the Joint Hindu Family. If so, to what effect ?

(2) Whether this Court has no jurisdiction to try this suit ?

(3) Relief.

Under issue No. 1 the learned trial Court held that Parbhati Ram had taken the premises in dispute on rent as Karta of the Joint Hindu Family. Under issue No. 2 it was held that as the defendants were members of the Joint Hindu Family of which Parbhati Ram was the Karta, they were also tenants of the shop in dispute and, therefore, a civil suit for their ejectment did not lie and application for ejectment should have been filed before the Rent Controller. In view of the above findings, the trial Court dismissed the suit of the plaintiffs. The defendants filed appeal which was heard by learned Additional District Judge, Bhatinda. He upset the findings of the learned trial Court on both the issues and held that Parbhati Ram had taken the shop in dispute on rent in his personal capacity and had become a statutory tenant after the expiry of the period of lease and as statutory tenancy was not heritable, the defendants had no right to remain in possession of the shop. Consequently he accepted the appeal and decreed the suit of the plaintiff. Feeling aggrieved, the defendants have now come to this Court.

The findings of the learned lower Appellate Court that Parbhati Ram was a tenant of the shop in dispute in his personal capacity is a finding of fact and cannot be challenged in this Court. Faced with the situation, the learned counsel for the appellant argued that the possession of the defendants in the shop in dispute is as tenants and, therefore, Civil Court has no jurisdiction to order their ejectment as it is with the Rent Controller. Thus his challenge is to the finding of the learned lower Appellate Court given under issue No. 2. The learned counsel for the appellants argued that though earlier view was that statutory tenancy is not heritable but the Supreme Court in Damadilal and Others Vs. Parashram and Others, , held that such a tenancy is heritable. He further pointed out that though the said ruling is under the Madhya Pardesh Accommodation Control Act, 1961 but the principle laid down by their Lordships of the Supreme Court in that case has been followed by this Court in Mohan Lal v. Ram Dass 1977 (1)R.L.R. 985, Mohan Lal v. Ram Dass 1980 (1) R.C.J. 607. I need not discuss these rulings because the learned counsel for the respondent frankly conceded that in view of the ratio of the above rulings, statutory tenancy is heritable.

The learned counsel for the respondent, however, argued that in the Courts below the defendants had pleaded that they were tenants in the shop in dispute and now they cannot turn round out and say that they inherited the tenancy from Parbhati Ram. I am of the opinion that this argument has no force. In this appeal the question to be seen is in what capacity the defendants are occupying the shop in dispute and whether the Civil Court has jurisdiction to order their ejectment. If the defendants are held to have inherited the tenancy from Parbhati Ram then their occupation in the shop in dispute is as tenants and consequently the Civil Court has no jurisdiction to order their ejectment. Only Rent Controller appointed under the East Punjab Urban Rent Restriction Act, 1949, has the jurisdiction to order eviction of a tenant.

As the defendants have inherited the tenancy of the shop in dispute from Parbhati Ram, the Civil Court had no jurisdiction to order their ejectment. The finding of the learned lower Appellate Court on issue No. 2 is set aside. Hence I accept the present appeal and set aside the decree passed by the learned lower Appellate Court and dismiss the suit of the plaintiff. In the circumstances of this case, I make no order as to costs.