Surendra Mal vs Chagan Lal

Arun Bhansali, J.—This second appeal under Section 100 CPC is directed against judgment and decree dated 05.04.2013 passed by Additional District Judge No. 2, Jodhpur Metropolitan, whereby, the appellate court while reversing the judgment and decree dated 20.11.2009 passed by Additional Civil Judge (Junior Division) No. 3, Jodhpur decreed the suit filed by the respondent-plaintiff for eviction against the appellants. The facts in brief may be noticed thus: the respondent-plaintiff filed a suit for eviction against the defendants-appellants, inter alia, with the averments that a property situated at Sardarpura, Jodhpur is possessed and owned by him, in which, several shops are situated, out of which, shop No. 2 was let out to one Sohan Chand Bhandari on 17.10.1972 by Ganesh Ram, predecessor in title through rent agreement; the shop was let out to Sohan Chand for his own business of cloth; on 02.08.1998 the plaintiff came to know that Sohan Chand had expired long back and none of his family members were carrying on the business with him during his life time and, therefore, the tenancy rights have not devolved upon any of his family members; the father of the plaintiff received the rent of the shop from late Sohan Chand as well as from defendants; defendants were not the family members of late Sohan Chand and were not carrying on business with him during his life time in the shop in dispute, therefore, they did not come within the definition of tenant under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (''the Act'') and, therefore, the relationship of landlord and tenant does not exist and, therefore, the possession of the defendants on the shop was illegal and they were not entitled to protection under the Act and were liable to be evicted.

The appellants-defendants filed their written statement and denied the averments made in the plaint and questioned the grounds of eviction also; it was claimed that Sohan Chand had expired on 20.03.1983 and during his life time some of his family members as well as defendants were carrying on business with him as his family members and, therefore, the tenancy rights have devolved upon the defendants as well as legal heirs of deceased tenant; not only father of the plaintiff but his mother also received the rent from the defendants through rent receipts with full knowledge that Sohan Chand Ji had expired and defendants were carrying on the business of cloth in the shop in dispute; father and mother of the plaintiff recovered the rent of the shop in dispute since 20.03.1983 i.e. after the death of Sohan Chand till March, 1994 for 11 years and, therefore, the contention of the plaintiff that defendants are not the tenants in the shop was incorrect; Sohan Chand Ji had constituted a partnership firm on 29.11.1982 with some of his family members and ultimately defendants were introduced as partners w.e.f. 01.04.1995; son, daughter-in-law and maternal-grand-son of deceased Sohan Chand were carrying on business during his life time as family members in the shop in dispute, therefore, on the death of Sohan Chand, the tenancy rights have devolved upon the said family members; no ground for eviction as envisaged under Section 13 of the Act has been set out in the plaint and the suit was, therefore, not maintainable.

The trial court framed seven issues; on behalf of the plaintiff three witnesses were examined and three documents were exhibited; on behalf of the defendants five witnesses were examined and 79 documents were exhibited.

After hearing the parties, the trial court after considering several aspects came to the conclusion that after the death of Sohan Chand, the firm Bhikhi Garments or the defendants were not proved to be tenants, however, Dhanpat Roop Chand son of Sohan Chand fall within the definition of tenant under Section 3(vii)(b) and is entitled to protection of the Act and plaintiff has failed to prove that after the death of Sohan Chand Ji the tenancy came to an end automatically and, consequently, decided issue No. 1 pertaining to landlord tenant relationship between the parties against the plaintiff; held that the landlord was not entitled for claiming damages for use and occupation during the currency of the tenancy and was free to take action under the Act; Naveen Bhandari was not a necessary party; the issues relating to partial eviction and comparative hardship were beyond the pleadings of the parties; the defendants were not entitled to special costs and, consequently, dismissed the suit.

Feeling aggrieved, the plaintiff filed first appeal.

The first appellate court after hearing the parties came to the conclusion that Dhanpat Roop Chand was not produced as witness; the shop was let out to Sohan Chand and not to any firm; and if a partnership is created without the consent of the landlord, the other partners do not get any right; the partnership deed (Exhibit-A/43) does not pertain to the business being conducted in suit shop; Meena Bhandari daughter-in-law of Sohan Chand did not conduct business during his life time; cause of action does not come to an end merely because the suit was filed after 15 years from the date of death of original tenant Sohan Chand; the amount paid after the death of Sohan Chand was not rent, but merely charges for use and occupation of the suit premises and consequently, reversed the finding on issue No. 1 and held that the parties were not having any landlord tenant relationship; findings on issue Nos. 2 to 6 recorded by the trial court were upheld and in view of finding on issue No. 1, the judgment and decree passed by the trial court was set aside and the suit filed by the plaintiff was decreed.

It was submitted by learned counsel for the appellants that in the present case Sohan Chand was admittedly the tenant in the suit shop and while he was alive his tenancy was not terminated; on his death, his legal heirs including Dhanpat Roop Chand became statutory tenants and the tenancy of the legal heirs was not terminated at any point of time; the present suit was filed by the plaintiff by putting valuation of the suit seeking eviction of the tenant and has not valued the same as a suit for possession; the suit for eviction without setting out grounds as contained in section 13 of the Act was not maintainable and admittedly as the suit was not for possession the same was not maintainable against the appellants-defendants; further neither the statutory tenancy of the legal representatives was terminated nor they were impleaded as parties to the suit and, therefore, the trial court was perfectly justified in dismissing the suit filed by the plaintiff.

Another plea based on provisions of Order XLI, Rule 31 CPC has been raised by the appellants questioning the judgment of the first appellate court on the ground that the said Court failed to indicate points/issues for determination before deciding the appeal and, therefore, the judgment of the first appellate court is vitiated and the same deserves to be remapded back.

Reliance was placed on H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, , B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy, , Babu Lal v. Ladu Ram & Ors., 1997(2) RLW (Raj.) 774 and Khetu Lal v. Narsingh Das & Ors., 1997(2) RLW (Raj.) 810.

An application under Order XLI, Rule 2 CPC read with Section 100 CPC has also been filed by the appellants seeking to raise certain questions, which hitherto before were not raised and certain judgments in support of the said application have also been stated. The application has been replied to by the respondent opposing the same.

Further reliance was placed on Kumar Jagdish Chandra Sinha and others Vs. Mrs. Eileen K. Patricia D''Rozarie, , Mahendra Rai Baxi through LRs. v. Smt. Laxmi Devi & Anr., 2009 (2) DNJ(Raj.) 1126, Tara Chand and Another Vs. Ram Prasad, , Gian Devi Anand Vs. Jeevan Kumar and Others, and Neon Lawrie and Another Vs. O.R. Properties and Builders (P) Ltd. and Others, .

Per contra, learned counsel for the respondent submitted that no substantial question of law is involved in the present appeal; admittedly both the defendants do not fall within the definition of tenant as contained in Section 3(vii)(b) of the Act as Surendra Mal is not a member of the family and Smt. Meena Bhandari, even if, by any stretch of imagination is treated as a member of the family, was not working with deceased Sohan Chand at the time of his death; both the courts below have concurrently found in favour of the respondent on the issue; the trial court found that the defendants were not tenants in the shop in question, however, dismissed the suit on finding that Dhanpat Roop Chand was a necessary party, who was not impleaded and dismissed the suit; in the appeal the defendants neither filed any cross-objection under Order XLI, Rule 22 CPC questioning the finding regarding their status nor any submissions in this regard were made before the appellate court and, therefore, now it is not open for them to question the finding recorded by the trial court in this second appeal for the first time, as the finding recorded by the trial court in absence of any challenge before the first appellate court, would operate as res judicata; the appeal filed by the appellants can at best be confined to the issue that Dhanpat Roop Chand was a necessary party to the suit, however, it was submitted that the appellants cannot be said to be aggrieved party qua the said finding as well and, therefore, the appeal at their instance was not maintainable as even otherwise no such objection regarding Dhanpat Roop Chand being a necessary party was raised by them before the trial court; submissions regarding implied surrender under Section 111(f) of the Transfer of Property Act, 1882 (''T.P. Act'') were made; the submissions made by the appellants regarding failure to terminate the tenancy of the legal representatives was opposed indicating that once the tenancy does not devolve in view of the provisions contained in Section 3(vii)(b) of the Act, there is no question of termination of tenancy; further, the submissions were made that the plea sought to be raised regarding maintainability of the suit was not raised before the trial court and the same cannot now be raised in the second appeal; it was prayed that the appeal has no substance and the same deserves to be dismissed.

Reliance was placed on Neon Lawrie and Another Vs. O.R. Properties and Builders (P) Ltd. and Others, : Neon Lawrie and Another Vs. O.R. Properties and Builders (P) Ltd. and Others, , 2009 CJ (Rent Control) 311, Mohd. Kasam & Ors. v. Ghasi Lal, 2004(1) R.C.R. (Rent) 429 : 2004 CJ (Rent Control) 321, Gopi Kishan v. Bajrang Lal & Anr., 1996(2) R.C.R.(Rent) 143 : 1996 (1) RLW (Raj. 690, LR''s. of Maga Ram v. Gulab (Smt.) & Ors., 2012 (3) DNJ (Raj.) 1273, Kartick Das v. Kamal Gosh, 2004 (2) RCR 123, Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, , Banarsi and Others Vs. Ram Phal, , Rama Bhat & Am. v. Vijaya Kumar & Ors., 2009 AIHC 915, Bharat Petroleum Corporation Limited Vs. Khatanand alias K. Anand Saraf and Others, , Datta Shrawale, Sambha Dau Shrawale and Digamber Dau Shrawale Vs. Namdeo Jalbaji Diwekar, Dead through L.Rs. (Gangabai Namdeo Divekar and Others), and Smt. Pushpa Sharma Vs. Gopal Lal Rawat, .

Learned counsel for the appellants in the rejoinder submitted that the maintainability of the suit is a pure question of law and the same can be raised at any stage and placed reliance on M.K. Ranganathan and Another Vs. Government of Madras and Others, and State of Rajasthan Vs. Rao Raja Kalyan Singh, (Dead by his Lrs.), .

I have considered the rival submissions made by learned counsel for the parties, perused the judgments and records of both the courts below.

So far as the application filed by the appellants under Order XLI, Rule 2 CPC seeking to raise certain issues is concerned, the same having been filed at the pre-admission stage, without examining the merit at the stage of application, deserves to be allowed and the same is consequently allowed. The counsel for appellants was permitted to address arguments on the issues raised.

Before adverting to the facts of the case and submissions made thereon it would be appropriate to reproduce provisions of Section 3(vii) of the Act, which reads as under:-

"3(vii) "Tenant" means:-

(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be, payable for any premises to his landlord including the person who is continuing in-its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises purposes, ordinarily carrying on business with him in such premises as member of his family upto his death."

The suit filed by the plaintiff, inter alia, made specific averments that the defendants Surendra Mal and Smt. Meena Bhandari were not the tenants after death of Sohan Chand.

In the written statement, the plea raised by defendants Surendra Mal and Smt. Meena Bhandari is contained in para 4 of the written statement, which reads as under:-

Further, the defendants gave out the status of the partnership firm from time to time alleged to be operating the business in the shop in question in the name of Bhikhi Garments in para 3 of the written statement, the relevant part of which reads as under:-

From the above two extracts from the written statements, it is apparent that at the time of death of Sohan Chand, the tenant, on 20.03.1983 neither Surendra Mal nor Smt. Meena Bhandari were partners in the firm; the tenant Sohan Chand in his Will, produced as Exhibit-A/42, inter alia, indicated the following, qua business in the shop in question, which reads as under:-

The above extract further goes on to show that except Surendra Mal no one else was involved in the business at the shop in question alongwith Sohan Chand; admittedly Surendra Mal is Sohan Chand''s daughter''s son (maternal grandson) and, therefore, in view of the law laid down by this Court in LRs of Mishrimal v. LRs of Sukh Lal & Anr., 2006 (2) DNJ (Raj.) 1117, wherein, it was held that person claiming under a Will of statutory tenant cannot claim protection of Act unless he is otherwise an ''heir'' within the meaning of Section 3(vii) of the Act read with Section 3(f) of the Hindu Succession Act, 1956 (''H.S. Act'') and unless would satisfy the other requisite conditions as enumerated in Section 3(vii) of the Act, the appellant Surendra Mal not being heir under Section 8 of the H.S. Act of deceased Sohan Chand, no right accrues to him under Section 3(vii)(b) of the Act.

In view of the concurrent findings recorded by both the courts below and the consideration made hereinbefore, the finding that the appellants-defendants do not fall within the definition of tenant under section 3(vii) of the Act does not give rise to any substantial question of law.

So far as the plea raised by learned counsel for the appellants regarding non-determination of tenancy by the landlord of the legal representatives of deceased Sohan Chand is concerned, the said submission alongwith the related issues raised though on first blush appears attractive, the same also apparently have no substance.

The submissions made in regard to the fact that even if the legal representatives of deceased Sohan Chand tenant were not working with him at the time of his death and, therefore, are not tenants as per the definition of Act, still in view of the fact that Sohan Chand at the time of his death was a contractual tenant, his heirs would succeed as tenants has to be considered in the context of the locus standi of the persons seeking to raise the said issue; the stand of the appellants in the written statement as quoted hereinbefore has been very specific that they were the tenants in the shop in question and as the plaintiff has not made out any ground in terms of Section 13 of the Act, the suit was not maintainable; it was nowhere the plea of the appellants that they were in possession of the suit shop pursuant to any act on part of the heirs of deceased Sohan Chand; it was not even contended that the shop has been handed over to them/sublet to them by heirs of deceased Sohan Chand with the concurrence and in the knowledge of the ''landlord'' as defined under the Act.

The question sought to be raised by the appellants, who admittedly are not heirs of deceased Sohan Chand and the heirs have not chosen to either appear in the witness-box and/or seek impleadment, the plea sought to be raised by the appellants merely because they happen to be in possession for lack of locus cannot be examined at their instance.

In the case of Kumar Jagdish Chandra Sinha, it was Mrs. Eileen K. Patricia D''Rozarie the heir, who raised the issue, similarly in Tara Chand (supra) the issue was raised by heirs of the tenant Smt. Anandi and in the case of Smt. Gian Devi Anand (supra) as well issue was raised by the heir of the deceased tenant and not a stranger as in the present case.

In view thereof as noticed hereinbefore, the issue though appears attractive in substance, at the instance of the appellants has no basis and, consequently, the same does not rescue the cause of the appellants.

Despite the fact that no plea regarding Dhanpat Roop Chand being a necessary party was raised, the trial court while examining issue No. 1 on the various pleas raised came to the conclusion that as besides other partners Dhanpat Roop Chand Bhandari, the heir of deceased Sohan Chand, was working as partner in view of partnership deed (Exhibit-A/43), he would fall within the definition of Section 3(vii)(b) of the Act and was a necessary party; the said finding came to be reversed by the first appellate court by taking a view that the partnership deed (Exhibit-A/43) does not even pertain to the business in the shop in question and, therefore, Dhanpat Roop Chand could not be termed as a tenant as even otherwise his working in the business alongwith deceased Sohan Chand was not proved and vide Exhibit-1 the shop was let out to Sohan Chand in his personal capacity and, therefore, merely because even if he decided to form a partnership qua the business in the shop, Dhanpat Roop Chand Bhandari could not fall within the definition of tenant.

The said finding of the first appellate court cannot be said to be perverse so as to give rise to any substantial question of law.

So far as the plea raised by the appellants that the suit for eviction was not maintainable and it is only a suit for possession, which could have been filed by the plaintiffs in view of the plea raised in the plaint is concerned, besides the fact that no such plea was raised in the written statement, though the said aspect was considered by the trial court and it was held that as the appellants have admitted the plaintiff as landlord, the suit as such was maintainable, the same only has implication on the valuation of the suit and consequential pecuniary jurisdiction of the Court; the valuation of the suit consequently has its implication on the court fees only and the issue in this regard having not been raised in the written statement and in the first appellate court, the same cannot be permitted to be raised in the second appeal; so far as the implication of pecuniary jurisdiction of the trial court is concerned, in view of the provisions of Section 21(2) CPC such an objection cannot be allowed by a appellate or revisional court unless such objection was taken in the Court of first instance at the earliest possible opportunity before settlement of issues and unless there has been a consequential failure of justice. The appellants have admittedly not raised issue at the earliest opportunity and have further failed to indicate any consequential failure of justice and, therefore, the issue of pecuniary jurisdiction also is not available to be raised in this second appeal.

The plea regarding Order XLI, Rule 31 CPC raised by the appellants also apparently has no substance as before the first appellate court the only issue was regarding the fact as to whether Dhanpat Roop Chand Bhandari was a tenant under Section 3(vii)(b) of the Act and was a necessary party to the suit, because rest of the findings of the trial court on crucial issue No. 1 were in favour of the plaintiff; merely not indicating the point for determination in the judgment cannot be said to be a fatal defect in the facts and circumstances of the present case so as to require interference of this Court in the second appellate jurisdiction. In view of the above discussion, there is no substance in the second appeal and the same is, therefore, dismissed. The stay application is also dismissed. However, the appellants are granted time to vacate the suit premises by 31st December, 2014 on the following conditions:-

(i) the appellants shall submit an undertaking supported by affidavit before the trial court within 3 weeks from today to the effect that on or before 31st December, 2014 they shall handover the peaceful and vacant possession of the suit premises to the plaintiff-respondent''. They shall also undertake not to cause any damage to the suit premises nor to make any alternation and not to assign/sublet or in any manner part with possession to any other person and not to put the premises to any use other than the present use and not to cause any nuisance.

(ii) the appellants shall deposit within three weeks the arrears, if any, of the rent/mesne profit and of the decreetal amount and shall further pay to the landlord the amount for use and occupation of the suit premises @ Rs. 4,000/- per month w.e.f. 01st July, 2014 or deposit the same in the saving bank account of the respondent month by month on or before 15th day of the next month. The respondent or learned counsel for the respondent will give the details of the bank account, in which, the arrears of rent or mesne profit/month to month mesne profit will be deposited, to the appellants or counsel for the appellants within a period of two weeks from today.

(iii) it is made clear that in case the appellants do not comply with any of the aforesaid conditions or violate any terms of the undertaking, then it will be open for the respondent landlord to get the decree executed forthwith in accordance with law.

No costs.