Ramlal Koshtha vs Brijkishore

N.M. Golvalker, J.—This is an appeal by the defend that No. 1 against whom a decree for ejectment has been passed by the lower appellate Court reversing the decree of the first Court dismissing the Plaintiff''s suit.

The Plaintiff had filed a suit against the Defendant-Appellant for his ejectment as also for recovery of arrears of rent on the ground that he was his tenant, and he having denied his tenancy had rendered himself liable to be ejected as a result of its determination by forfeiture consequent to the notice served by the Plaintiff intending to do so. The Plaintiff claimed to have had purchased the house from the Defendant-Appellant under a sale-deed dated 16-3-1950 and since then to have admitted him into that house as a tenant on payment of rent of Rs. 150 per month. The Plaintiff had also pleaded that the Defendant No. 1 had committed a breach of the contract of tenancy by not paying the rent and by sub letting the premises to Defendants 2 and 3 (Respondents 2 and 3 in this Court).

Defendant No. 1 only disputed the claim of the Plaintiff on the ground that the sale-deed in favour of the Plaintiff was merely a nominal transaction never intended to be given effect to as such. According to him he was in need of loan but Plaintiff''s father, who is a regular money lender, not being prepared to advance the same on the mortgage security of the house but willing to advance the same only if a sale-deed of the same was executed in favour of his son, then minor, by way of collateral security, the sale deed in question was executed. It was averred that there was a definite and express contract between the parties that the sale-deed would be a nominal transaction without any intention to convey any title thereunder to the purchaser named in the deed. The Defendant No. 1 also denied to have placed the purchaser in possession of the house at any time. The amount of rent, it was alleged, represented in fact the interest payable on the loan per month calculated at the rate of Rs. 1/8 percent per month and that there was no tenancy. He admitted to have denied his tenancy but urged that even so the alleged notice served by the Plaintiff being without prior permission of the Rent Controller, and not being according to Section 106 of the Transfer of Property Act, the tenancy, if there be any, was not validly preder-mined and therefore the Plaintiff was not entitled to any decree for possession. The other Defendants 2 and 3 remained ex parte.

The first Court held that the sale deed was only nominal and a sham document executed simply as a security for the loan transaction as contended by the Defendant No. 1; that Plaintiff''s father had expressly agreed that the sale-deed would never be treated as a deed of conveyance as such; that the Plaintiff was never put in possession of the house and the Defendant No. 1 all along continued in its possession; that the Defendant No. 1 never paid any rent as such of the premises to the Plaintiff; that in any case the notice determining the tenancy being without prior permission of the Rent Controller was invalid. On these findings the suit of the Plaintiff was dismissed.

The Plaintiff filed an appeal challenging the dismissal of the suit and the lower appellate Court reversing all the findings of the first Court came to the conclusion that the Defendant No. 1 was a tenant and his tenancy having been validly terminated was liable to be ejected. However the claim for arrears of rent was not accepted. Accordingly the appeal was allowed and a decree for ejectment of the Defendant No. 1 was passed. Hence this appeal.

By this appeal the Defendant No. 1 claims restoration of the decision of the first Court and in my opinion his claim is well founded.

Apparently the lower appellate Court has misunderstood and misapprehended the contentions raised on behalf of Defendant No. 1. It has considered the same to be as if the Defendant was claiming the document of sale-deed to be a mortgage deed. There was never such a plea raised by the Defendant. On the contrary he has throughout been urging that the document was merely a nominal and sham transaction only to be utilised as a sort of collateral security for the loan advanced and that there was never any contract of tenancy. This appeal, therefore, can be disposed of on one short point, whether the transaction between the parties was really a transfer of the house by way of sale and whether thereafter the Defendant No. 1 occupied the premises as a tenant or whether the deed was executed by way of collateral security and that there was no contract of tenancy. If the latter position is upheld then the Defendant No. 1 could not be a tenant of the Plaintiff and the suit filed against him as such would have necessarily to be dismissed.

In that event it would not be necessary to decide whether the notice was valid or invalid and whether the tenancy was validly determined or not, and how the M. P. Accommodation Control Act of 1959 having come into force would affect the Plaintiff''s claim.

It cannot be disputed that Defendant No. 1 is entitled to plead and prove that the so-called sale deed is not what it purports to be. I may refer to the views of this Court expressed in the case of Karelal and Anr. v. Amarnath and others, 1963 JLJ SN 181, and in the case of Mst. Saraswatibai v. Pt Ram Chandralal, 1963 JLJ SN 185. In both these cases, similar contentions were raised on behalf of the Defendant and were accepted. In the latter case the Plaintiff had unsuccessfully sought to challenge the decision of this Court before the Supreme Court. He had prayed for special leave to appeal to the Supreme Court against the decision of this Court but his prayer was turned down (Special leave to appeal No. 196 of 1961 dated 7-4-1961). Since in both these cases their Lordships of this Court have referred to various case law on the subject, I need not refer to them over again I shall simply point out, therefore, the circumstances available in the instant case on the basis of which it could be held that the Defendant No. 1 was not really a tenant of the Plaintiff and the document was merely a nominal deed never, intended to be acted upon as sale-deed as such conveying any title to the Plaintiff

It may be noted that neither the Plaintiff nor his father, Ganesh Prasad, who was specifically named as the person to have negotiated with the Defendant, have entered the witness box. In fact no witnesses have been examined on behalf of the Plaintiff; then no rent receipts, although seated in the plaint to have been passed, have been filed in Court; then it is in the evidence of Defendant No. I that sometime in the year 1955 the Public Works Department had demolished a portion of this house as it had encroached upon some land of the Government and that it is apparent that neither the Plaintiff nor his father appear to have taken any interest in the same as owner, by way of protest or raising objections, that the house was worth at the time of transaction Rs. 30 to 32 thousand: that although in the plaint it is averred that rent from 1950 to February 1954 was paid, yet in the notice dated 6-10-1955 (Ex. D-1) it is specifically mentioned that rent upto July 1952 was only paid and a considerable portion of that claim has become time barred: then there is one very significant circumstance on record as to the alleged payment of rent itself as pleaded by the Plaintiff. On 13-8-1950 the Defendant No. 1 is said to have paid Rs. 800 in one lump sum towards rental rears. But according to the Defendant, he had never paid such an amount. Instead on that day he stated to have had borrowed a fresh loan of Rs. 1,100 and the Plaintiff''s father, Ganesh Prasad, to have had obtained from him a bond for Rs. 2,000 made up of the said loan together with the arrears of interest amounting to Rs. 900 till then due. This appears to be true as is evident from the judgment in civil suit No. 63-B of 1953 dated 20th March 1954, Pandit Ganesh Prasad v. Ramlal (Exh D-3). It is clear from this judg-ment Ganesh Prasad had filed a suit on the ground that the Defendant i. e., Ramlal, had borrowed Rs. 2,000 on 13-8-1950. It is, therefore, impossible to believe that the Defendant could have paid Rs. 800 towards rent to the Plaintiff on 13-8-1950 when on that very day he had borrowed a loan from his father Ganesh Prasad. All these circumstances, therefore, in my opinion, conclusively show that Defendant No. 1 never intended to transfer any proprietary interest in his house by way of sale and the Plaintiff as also his father, Ganesh Prasad, never intended to give effect to that document as a sale-deed. In fact the evidence on behalf of Defendant No. 1 on ail these matters stands unrebutted.

It is really not understood, when the claim of the Plaintiff was specifically denied, why the Defendant was called upon to lead evidence first. At any rate, this is the impression that I have carried on account of the order sheet dated 17-12-1958 of the first Court. According to that order sheet, the Defendant is stated to have examined two witnesses and closed his case, and then it is recorded that the Plaintiff closed without producing any evidence. It may be that this must have been done in the light of the issues framed. However at this stage now that matter is immaterial and nothing more need to be said thereon

Thus in the state of evidence on record I cannot but hold that the learned Judge of the lower appellate Court was absolutely wrong, both in his approach to the pleadings as also to the evidence on record. His decision reversing the decree of the first Court cannot be allowed to stand. Accordingly I allow this appeal and confirm the decree of the first Court reversing that of the lower appellate Court. The Defendant-Appellant shall be entitled to his costs throughout in all the Courts from the Plaintiff. Counsel''s fee within the prescribed schedule of rates, if certified. The cross-objection filed by Respondent No. 1 with respect to the dismissal of his claim for arrears of rent is also dismissed with costs as the same cannot be accepted for the same reasons which renders his claim in suit as landlord for ejectment of the Defendant No. 1 liable to be dismissed and has been dismissed.