Sham Lal Aggarwal vs Rana Sumeshwar Singh

Lokeshwar Singh Panta, J.—This is Defendant''s second appeal against the judgment and decree dated 21.3.1995 passed by District Judge, Shimla, whereby the judgment and decree dated 19.11.1993 of Senior Sub Judge, Kinnaur Camp at Rampur were affirmed and suit of the Plaintiff for possession of the shop and recovery of Rs. 1705/- as arrears of rent with interest was decreed.

The Plaintiff filed suit for recovery of possession and arrears of rent amounting to Rs. 1705/against the Defendant. The Plaintiff said that he is the owner and in possession of various shops in main bazar Kumarsain, District Shimla, which have been rented out to various persons on monthly rent. Out of the aforesaid shops, shop No. 14 single storeyed abutted by the right side of shop occupied by one Tula Ram and from left side by the shop occupied by one Gopi Chand as tenants of the Plaintiff has been rented out to the Defendant on monthly rent of Rs. 155/-. The tenancy was to commence from 1st November, 1988 for a period of 11 months and thereby the tenancy expired on 30.9.1989. The parties had executed rent-deed to this effect. The Plaintiff asserted that since the monthly tenancy of the Defendant had expired on 30.9.1989 and that the Defendant was liable to hand over the vacant possession of the shop to the Plaintiff, but he failed to hand over the same. A notice was served upon the Defendant whereby his tenancy was determined. The Defendant paid the rent for the month of November, 1988 only and thereafter no rent has been paid to the Plaintiff till 31.10.1989 and therefore, he was liable to pay an amount of Rs. 1705/- as arrears of rent with Interest at the rate of 18% per annum.

The Defendant in written statement raised preliminary objections Inter alia, pleaded that Plaintiff has no locus standi, to file the present suit as the vacant land under the ''Dhara'' (temporary structure) was given to him by Rajmata Darbar Kumarsain on payment of Rs. 30/- as fee and subsequently, fee was raised to Rs. 150/-. The structure has been raised by the Defendant himself on the understanding that he would not be evicted till he would regularly pay the fee or rent for the land, meaning thereby that it was a perpetual lease in his favour. The suit has not been filed by the Plaintiff''s attorney with his consent. That the suit is bad for non-joinder of necessary parties and the portion of ''Dhara'' No. 14 given to Tula Ram was not taken from him and handed over to Defendant. That no valid notice has been served upon the Defendant. On merits, it has been stated that the Plaintiff is not the owner of the shop but there is dispute between the Plaintiff and Smt. Shashi Prabha the heir of Rajmata Darbar Kumarsain, about the suit property. It is denied that the shop was rented by the Plaintiff to the Defendant. The Defendant constructed the double storeyed ''Dhara'' himself on a vacant land given to him on lease by Rajmata Darbar Kumarsain on payment of Rs. 30/- per month which gradually was raised. It is averred that after the death of Rajmata Darbar Smt. Shashi Prabha served a notice upon the Defendant for the recovery of rent. The payment of monthly rent to the Plaintiff by the Defendant at the rate of Rs. 155/is also denied. Similarly, the tenancy as alleged by the Plaintiff commencing from 1st November, 1988 is also denied. To the written statement the Plaintiff filed his replication wherein the averments made in the plaint were re-asserted and the allegations of the Defendants were controverted and denied. On the pleas, thus, raised the trial court framed the following issues:

1) Whether Defendant is a tenant under Plaintiff at a rental of Rs. 155/-per annum ? ....OPP.

2) Whether Defendant is in arrears of rent? ....OPP.

3) Whether vacant land underneath was rented out to Defendant by Rajmata a Rs. 30/- per month a fee initially? OPP.

4) Whether Defendant raised Dhara on leased land? ....OPD.

Relief.

The trial court returned its finding on all the issues in favour of the Plaintiff and against the Defendant and decreed the suit. Feeling aggrieved and dissatisfied with the impugned judgment and decree, the Defendant preferred an appeal before the District Judge, Shimla who dismissed the same and affirmed the judgment and decree of the trial court. Hence, this second appeal has been preferred by the Defendant against the impugned judgment and decree of the District Judge.

I have heard the learned Counsel for the parties and examined the record of the case and the impugned judgment. I find that both the courts below have taken correct view of the facts of the case and law applicable thereto.

Shri G.D. Verma, learned Counsel for the Defendants challenged the judgments and decrees of the courts below on various grounds. Firstly, he urged that all material issues were not framed by the courts below especially non-service of notice u/s 106 of Transfer of Property Act without which suit for possession against the Defendant was not maintainable. Secondly, he contended that the original owner Smt. Rajmata Darbar Kumarsain and after her death her legal heir Smt. Shashi Prabha who became owner of the property were necessary parties and in their absence the suit was not properly constituted. He next contended that the evidence and pleadings of the parties were not properly considered and both the courts below committed an error in not properly considering the oral and documentary evidence brought on record. He further contended that rent-deed (Ext.P-7) was wrongly admitted in evidence by the trial court as the same was not registered nor duly stamped. Lastly, he contended that in the absence of proof of ownership of the Plaintiff regarding the disputed shop and also in the absence of proof whether the Plaintiff inducted the Defendant as tenant, a decree for possession could not be passed.

On the contrary Shri D.C. Jishtu, learned Counsel for the Plaintiff urged that the suit was filed by the Plaintiff through his authorised attorney Rattan Dass and as such, the Plaintiff had locus standi to file the same. He pointed out that in preliminary objection No. 2 taken in written statement, the Defendant has conceded that the attorney filed a suit on behalf of the Plaintiff. He urged that rent-deed (Ext. P-7) was executed by the Defendant in favour of the Plaintiff through his attorney and pursuant to this rent-deed rent was paid to Plaintiff through an Attorney for which rent receipts (Exts. P-2 and P-3) were issued by the Attorney. The original power of attorney was produced in the court copy of which was exhibited as Ext.P-1 without raising objection by the Defendant and if no objection was raised, it is deemed to have been waived. The Defendant is precluded from raising this question in the second appeal being a question of fact more particularly no prejudice has been caused to the parties and they have led evidence and went in trial. Shri D.C. Jishtu then contended that no objection was taken by the Defendant for framing proper issues at the appropriate time and he could have applied under Order 18 CPC for doing so and since the suit has been decreed against him, this plea cannot be allowed to be raised in the second appeal once he has lost in both the courts. He submitted that the tenancy has been created year to year basis and for a specified period of 11 months, therefore, no notice u/s 106 of the Transfer of Property Act was necessary as the tenancy has expired with efflux of time. He submitted that registration of the rent-deed was not required under law.

The evidence in the case in both oral and documentary. The oral evidence is a statement of Rattan Dass Attorney (PW-1) Vinod Kumar (PW-2) and Mool Raj (PW-3). PW Rattan Dass deposed that he is the holder of special power of attorney (Ext.P-1) of Rana Sumeshwar Singh Plaintiff. He stated that the Plaintiff is the owner of many shops in Kumarsain Bazar which are leased to number of tenants. Shop No. 14 was given on rent at the rate of Rs. 155/- per month to Defendant for a period of 11 months and rent deed (Ext.P-7) was executed between the parties on 27th October, 1988 which was signed by him on behalf of the Plaintiff and by the Defendant. He also proved, on the record rent receipts(Exts.P-2 and P-3) copy of legal notice (Ext.P-4) dated 26.9.1989 issued on behalf of the Plaintiff by his counsel determining the tenancy after 30th September, 1989. He stated that inspite of notice the shop in dispute was not vacated by the Defendant nor rent was paid. Receipt of the notice (Ext.P-5) and the acknowledgement Ext.P-6) were also produced. PW Vinod Kumar corroborated the version of PW Rattan Dass and deposed that the Defendant is in possession of one Dhara on rent which was constructed by Plaintiff Sumeshwar Singh about 8-10 years prior to the filing of the suit and there are about 21-22 more ''Dharas'' belonging to the Plaintiff, which were given to various persons on rent and the Defendant has not paid rent to the Plaintiff. PW Mool Raj is the scribe of the rent-deed(Ext.P-7). He deposed that the contents of the rent deed were read over and explained to Shri Rattan Dass Attorney of the Plaintiff and Shri Sham Lal Defendant and thereafter they put their signatures in the presence of the marginal witnesses.

The Defendant examined four witnesses including himself as DW-1. He deposed that the disputed shop was constructed by him about 25 years prior to the filing of the suit over a vacant land which was given to him by Rajmata, Darbar Kumarsain for a fee of Rs. 30/-. Thereafter, the fee was increased gradually from Rs, 30/- to Rs. 50/- and ultimately to Rs. 100/-. Rajmata Darbar Kumarsain had died and after her death Smt. Shashi Prabha served notice (Ext.DW-1/A) on him asking him to pay rent of the disputed shop to her. He placed on record notice (Ext. DW-1/B) received by him on behalf of the Plaintiff through a General Power of Attorney PW Rattan Dass. He placed copy of Jamabandi (Ex.DW-1/C) and receipts (Exts. DW-1/D-1 to DW-1/D-23 on record. He stated that since there was a dispute about the title of the shop between the heirs of Rajmata, therefore, he had not paid the rent. He denied the execution of the Rent-deed(Ext.P-7) and stated that he was asked to sign the same. He stated that he was asked to sign the same. He stated that he paid Rs. 1,050/on 19.11.1988 to PW Rattan Dass Special Power of Attorney of the Plaintiff as arrears of rent from April 1988 to October 1988 and admitted acknowledgement of receipt (Ext. P-2). He also admitted that he paid Rs. 155/- as rent of ''Dhara'' No. 14 for the month of November, 1988 through PW Rattan Dass, Special Power of Attorney of the Plaintiff and acknowledged the receipt (Ext. P-3). Kewal Ram(DW-2) stated that ''Dhara'' was constructed by the Defendant about 20-25 years prior to the filing of the suit. The statement of Prem Sukh (DW-3) is of no help to the Defendant. Smt. Shashi Prabha(DW-4) stated that ''Dharas'' were constructed by Rajmata and she used to receive rent through one Govind and Basant Ram but she was not sure about the receipt of the rent by these persons . She admitted having issued notice to the Defendant after the death of Rajmata asking him to pay the rent of shop to her. This notice was given by her when she came to know that she is the real heir of the property till the dispute between the properties has not been settled between her and Rana Sumeshwar Plaintiff.

Plaintiff has proved on record rent-deed (Ext.P-7) which was executed between the Plaintiff through PW Rattan Dass Special Power of Attorney and the Defendant. In this rent-deed it is categorically mentioned that one shop No. 14 single storeyed situate in main bazar Kumarsain was rented out by the Plaintiff-landlord to the Defendant-tenant on a monthly rent of Rs. 155/- and for a limited period of 11 months starting from 1st November, 1988 and the tenancy was to expire on 30th day of September, 1989. The recital of the rent-deed is also to the effect that on the expiry of the tenancy period the tenant shall hand over the vacant possession of the premises let out to him. From the perusal of the rent-deed, it is clear that the tenancy was for a period of 11 months and the case of the Plaintiff is covered u/s 111(a) of the Transfer of Property Act. The lease-deed is from month to month basis and for a limited period of 11 months and after the expiry of the definite term by efflux of time by reason of Section 111(a), service of notice u/s 106 is not necessary for determination of lease. The Defendant has not alleged that he was a tenant holding over within the meaning of Section 116 of the Act. Now in order that lease should be deemed to have continued in favour of the Defendant, it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the Plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, by the Defendant, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on 30th of September, 1989, the relationship of landlord and tenant ceased and the Defendant became a trespasser. There was therefore, no question of service of any notice u/s 106 of the Transfer of Property Act for determination of the lease. The Supreme Court in Firm Sardarilal Vishwanath and Others Vs. Pritam Singh, held that where the lease stands determined on expiry of period eviction notice is not necessary. Similar view has been taken by the apex Court in Smt. Shanti Devi v. Amal Kumar Banerjee AIR 1981 SC 1550. The lease agreement stipulated that it will remain effective for 11 months and further provided for creation of fresh tenancy at the end of the period of the tenant shall wish to continue, thus, the lease was one for a fixed term and not a lease from year to year. The period in the lease-deed was specified and the Defendant was bound to vacate after the period without notice. The lease was one from month to month and therefore, not compulsorily registerable. Clause 3 in Ext. P-7 clearly stipulates that in case the tenant-Defendant wish to continue the tenancy, he shall procure a new agreement from the landlord after the expiry of the tenancy period. Therefore, the contentions of the learned Counsel for the Defendant about non-issuance of notice u/s 106 of the Transfer of Property Act and non-registration of the lease -deed fall to the ground and are rejected.

The Defendant has failed to prove that he constructed the ''Dhara'' by spending money. He has not led evidence of worth credence to prove that he took the vacant land from Rajmata on a fee of Rs. 30/-.

Admittedly, Plaintiff was the owner of Khasra No. 415 on which the shop stands constructed and Rajmata Smt. Pratibha Kumari was in possession thereof as tenant. This fact is verified by copy Jamabandi(Ext.DW-1/C) for the year 1981-84. Admittedly, that Smt. Pratibha Kumari dies issueless, the Defendant has not brought on record conclusive evidence to show that Smt. Shashi Prabha or any other person is the owner of the shop in dispute or that she has inherited the estate of Smt. Pratibha Kumari. The Defendant in his cross-examination admitted his signatures on rent-deed (Ext. P-7) and also admitted factum of purchasing the stamp used for execution thereof, contents of payment of previous arrears of rent amounting to Rs. 1050/-, rent amounting to Rs. 155/- for the month of November, 1988 and also the execution of the receipts of Rs. 1050/- and Rs. 155/- (Exts. P-2 and P-3). The Defendant has also admitted that he did not pay the rent after November, 1988 because there was little dispute between the landlords. The Defendant is an educated person and signed the rent-deed in English. The Defendant has been rightly held to be in arrears of rent right from December, 1988 till 31st October, 1989 amounting to Rs. 1075/- with interest at the rate of 2%.

The contention of the learned Counsel for the Plaintiff that the copy of the Special Power of Attorney(Ext.P-17) in favour of PW Rattan Dass is not legal, is also not sustainable. PW Rattan Dass has been authorised to file and contest the suit in courts on behalf of the Plaintiff as has been clearly and unequivocally mentioned in the clause of the Special Power of Attorney. The objection of the Plaintiff that the original Special Power of Attorney was not brought on record is not tenable. The Plaintiff tendered on record a copy of the Special Power of Attorney(Ex.P-1). There is nothing on record to show that the Defendant had at any stage submitted that Ext.P-1 cannot be tendered by way of secondary evidence. Hence, he must be treated to have waived his objection about the production of secondary evidence of the original special power of attorney. The Special Power of Attorney as such was admitted in evidence without any objection. So it is not permissible for him to raise such objection. On facts, I cannot agree with the submission of Shri G.D. Verma that the courts below has failed to frame the material issues in the suit. The parties to the proceedings went to the trial with full knowledge of each others case, and that being the position, the non-framing of an issue even if the same was necessary, has not caused any prejudice to any of the parties to the proceedings and they had in fact, received all and every opportunities to establish their respective case. The issues in this case are really framed on the pleadings which were consistent with the case of the respective parties. I do not also accede to the prayer of Mr. Verma that there should be order of remand to the learned court below for having the lease duly and effectively determined on framing proper issues, for the reasons that it is not necessary in the fact and circumstances of the present case. In Nedunuri Kameswaramma Vs. Sampati Subba Rao, the apex Court held that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground and there is no need that a remit, as the evidence which has been led in the case is sufficient to reach the right conclusions and neither party claimed that it had any further evidence to offer. In this view of the matter, this submission of the learned Counsel for the Plaintiff is also rejected.

On the evidence of the parties, it is not proved that Smt. Rajmata Darbar Kumarsain or after her death Smt. Shashi Prabha were owners of the shop in dispute and they were necessary parties in the suit. The contention of the learned Counsel for the Plaintiff is therefore, not sustainable.

The result therefore, is that the appeal fails and is accordingly dismissed. The judgment and decree of the courts below decreeing the Plaintiff''s suit are affirmed. However, there shall be no order as to costs.