Sabup Chand and Others vs Satish Kumar and Others

J.V. Gupta, J.—This is Defendant''s second appeal against whom the suit for possession of the property, in dispute has been decreed by both the Courts below.

Satish Kumar, Plaintiff-Respondents, brought the suit on the allegations that he was the owner of the chaubaras, in dispute, which he had given on yearly rent through the rent-deed to Nanda Mal on April 1, 1966, at the rate of Rs. 144 per year, with the stipulation to pay the yearly rent in advance. The possession of the demised premises remained with the said Nanda Mal after the expiry of one year and, thus, he became the statutory tenant thereafter and paid rent till September 30, 1968. He died in June, 1968. Thereafter, the Defendants, who are his children except his widow Shrimati Kasturi Devi, defendant, continued to be in occupation of the chaubaras, and did not vacate the same despite the repeated requests made by the Plaintiff. Hence the necessity of filing the present suit on the ground that the statutory tenancy being not heritable, came to an end with the death of Nanda Mal. A sum of Rs. 442 being the amount for the use and occupation of the premises at the rate of Rs. 30 per month from October 1, 1968 to December 23, 1969, i.e. till the filing of the suit was also claimed. The suit was resisted by the Defendants inter also, on the grounds that they formed a joint Hindu family with Nanda Mal, deceased, the premises, in dispute, were taken on rent for the benefit of the Hindu undivided family and, therefore, on the death of Nanda Mal, the tenancy was heritable. The trial Court found that Nanda Mal had executed the rent note on April 1, 1966, in favor of the Plaintiff and that the tenancy came to an end upon the death of the former being a statutory tenant. It was-also held that the Defendants did not constitute a joint Hindu family with the aforesaid Nanda Mal and that they were not entitled to succeed to his tenancy after his death. For the use and occupation of the premises after his death, compensation was assessed at Rs. 221 at the rate of Rs. 15 per month. As a result, the Plaintiff''s suit was decreed to that extent. Two separate appeals were filed against the same by the Defendants as well as by the Plaintiff. The appeal filed on behalf of the Defendants was dismissed, in to whereas the appeal filed on behalf of the Plaintiff was dismissed subject to the modification that he was entitled to the compensation for the use and occupation of the premises at the. rate of Rs. 15 per month till the delivery of possession'' of the demised premises to him. Aggrieved against the same, the Defendants have come up in second appeal to this Court.

The lower appellate Court on the appreciation of the entire evidence has given a firm finding that appellants-Appellants who claimed that they formed a joint Hindu family with Nanda Mal, deceased, had no assets and all its male members continued their business separately and resided in different houses. The premises were taken on rent by Nanda Mal, deceased, in his personal capacity. This being a finding of fact, has not been challenged by the Defendants-Appellants in this appeal.

The only contention raised on behalf of the Appellants is that the statutory tenancy as such was heritable and, therefore, the Defendants were entitled to remain in occupation of the premises, in dispute, after the death of the statutory tenant. In support of his contention, the Learned Counsel placed reliance on Damadilal and Others Vs. Parashram and Others, , Mohan Lai v. Ram Dass 1977(1) R.C.J. 756, Parkash Chand v. Kishan Chand 1982(1) RCJ 729, the Division Bench decision of this Court in Mohan Lal v. Ram Dass 1980(1) R.C. J. 607, and Manmohan Nath v. Shrimati Kesra Devi 1980 P.L.R 215. Reference was also made to Lekh Raj v. Bhagwat Sarup RSA 1215/72, which was referred to a larger Bench, but has not yet been finally disposed of.

I have heard the Learned Counsel for the parties and have also gone through the case law cited at the bar.

After giving my thoughtful consideration to the whole matter I am of the considered opinion that once it is found as a fact that the Appellant were living separately in different houses and were also carrying on their business separately, they were not entitled to remain in occupation of the premises, in dispute, after the death of the statutory tenant Nanda Mal. Though in Damadilal''s case (supra), it was held that the statutory tenancy was heritable, yet in paragraph 7 of the judgment in Vithal Dattatraya Kulkarni and Others Vs. Smt. Shamrao Tukaram Power and Others, , the Supreme Court made it clear that in Damadilal''s case (supra), it did not lay down a wide proposition that every tenancy was heritable. Therefore, it could not be successfully argued that after the death of the statutory tenant, his legal heirs were entitled to remain in occupation of the premises, in dispute, as a matter of right, irrespective of the fact whether the said heirs were living separately from the statutory tenant during his life time or not. All the authorities referred to and relied upon by the Learned Counsel for the Appellants nowhere lay down such a proposition. In all those cases, whether they relate to a shop, i.e. a non-residential building, or to residential building, the persons who claimed the right to occupy being the heirs of the statutory tenant, were in occupation of the premises during the life time of the statutory tenant. As a matter of fact, the -question decided in all those cases was that when a statutory tenant dies, on his death, the persons who are ordinarily his heirs if already in occupation are entitled to continue to occupy the demised premises on the same terms and conditions and that their occupation of the premises would not be deemed to be that of a trespasser. It was only to that limited extent that it was held that a statutory enancy as such was heritable. The present is a case of the Punjab State to which the provisions of the East Punjab Urban Rent Restriction Act, (hereinafter called the Act), are applicable. Though under the Haryana Urban (Control of Rent and Eviction) Act, the definition of the term "tenant", inter alia means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of his tenancy and in the event of such person''s death, such of his heirs as are mentioned in the Schedule appended thereto and who are ordinarily residing with him at the time of his death, but does not include a person placed in occupation of a. building or rented land by its tenant, except with the written consent of the landlord but the definition of the term "tenant" under the former Act, does not so provide, yet I am afraid, it could not be successfully argued that a person who is a legal heir of the statutory tenant is entitled to occupy the rented premises irrespective of the fact whether he was or was not residing with him in the said premises during the life time of the statutory tenant. No case has been brought to the notice of this Court wherein it has been held that a person is entitled to claim the statutory tenancy rights to occupy the premises only on the ground that he was the heir of the deceased statutory tenant in spite of the fact that he was not in occupation of the premises during his life time or residing with him at the time of his death.

In Manmohan Nath''s case (supra), the definition of the term "tenant" under the Act, was discussed and it was observed that it was abundantly clear that the said definition includes a tenant or a person continuing in possession even after the termination of the tenancy in his favour. Even in Damadilal''s case (supra), wherein the definition of the term "tenant" u/s 2(i) of the Madhya Pradesh Accommodation Control Act, 1961, was under consideration, it was observed: -

The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus, putting him on par with a person whose contractual tenancy still subsists. The incidents of such a tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveys a contrary intention.

The Division Bench decision of this Court in Mohan Lal''s case (supra), related to a shop i.e. a non-residential building wherein the case of the Plaintiff, in the alternative, was that even if Karam Chand, the allottee, was held to be a statutory tenant, the tenancy came to an end on his death and the. Defendants were in illegal possession thereafter. In the written statement, it was specifically pleaded that the Defendants Nos. 4 and 5 after the death of the statutory tenant were running the business in the shop, along with the deceased during his life time, and after his death, a new partnership between the old part-nears and the heirs of Karam Chand, deceased, was brought into existence which was running the business in the shop, in dispute, at the time of the filing of the suit. It was in these circumstances held by the Division Bench that the statutory tenancy having been held to be heritable, the said Respondents continued as tenants till the filing of the suit and as such were liable to pay rent and were not liable to be ejected. As observed earlier, the present case is clearly distinguishable on facts. After having been found as a fact by both the Courts below, which is not being challenged in this appeal, that appellants-Appellants were never in occupation of the premises, in dispute, during the life of the statutory tenant Nanda Mal and were residing separately, they cannot claim the right of occupation as tenants being the legal heirs of the statutory tenant Nanda Mal, simply on the ground that the statutory tenancy is heritable. Even in Regular Second Appeal No. 1215 of 1972, this question is not involved. The said case relates to a shop and not to a residential building and, therefore, has no bearing on the facts of the present case.

As a result of this discussion, I do not find any illegality or infirmity in the judgments of the two Courts below. Consequently, this appeal fails and is dismissed with costs.