SHANTI SWAROOP TRUST v. KAILASH WATI — 1994 DIGILAW 42 (HP)

JUDGMENT D.P. Sood, J.—Dr. Shanti Swaroop Trust (Registered) and four others (hereinafter shortly referred to as the Trust) are the appellants. All the appellants were defendants in the trial Court. In this Regular Second Appeal under section 100 of the Code of Civil Procedure, appellants have assailed the judgment and decree dated November 27, 1985 of the learned Addl. District Judge, Shimla. Both the Courts below, by concurrent findings, have decreed the suit for possession of the premises in dispute. 2. The bone of contention in between the parties is the Top Floor of Shop No. 36, Middle Bazar, Shimla, contained in Khasra No. 42 measuring 242 square feet (hereinafter referred to as the disputed premises). 3. Plaintiffs have filed a suit for possession of the aforesaid disputed premises and further claimed Rs. 500 on account of damages for its unlawful use and occupation by the defendants. 4. Material facts, necessary for the purpose of decision of this appeal, may be detailed as follows. 5. Dr. Shanti Swaroop was initially a contractual tenant in respect of the disputed premises under the previous owners and thereafter under the plaintiff, who purchased the said property. Dr. Shanti Swaroop attorney in favour of the plaintiff and continued to occupy the premises in the aforesaid capacity, his contractual tenancy having come to an end long before the purchase of the disputed premises by the plaintiff by way of efflux of time. He died on September 27, 1977. Plaintiffs assertion is that on the death of Dr. Shanti Swaroop being a statutory tenant, all his rights and interests as a lessee in the disputed premises, came to an end and vested in the plaintiff being an owner and, thus, she is entitled to the relief of possession and damages for unlawful use and occupation thereof. 6. The defendants resisted and contested the suit by raising preliminary objections as to locus standi, jurisdiction and also the suit being bad for non-joinder of necessary parties. On merits, they alleged late Shanti Swaroop to be a contractual tenant on year to year basis, he having paid the rent uptil 28-2-1978. In addition, defendants asserted the execution of a will in favour of the Trust (defendant No.1) and thereby to be lawful tenant on the premises in dispute. 7. On merits, they alleged late Shanti Swaroop to be a contractual tenant on year to year basis, he having paid the rent uptil 28-2-1978. In addition, defendants asserted the execution of a will in favour of the Trust (defendant No.1) and thereby to be lawful tenant on the premises in dispute. 7. In their replication, plaintiffs refuted the contentions raised by the defendants, except that of payment of rent and reiterated the allegations made by her in the plaint. 8. The trial Court framed various issues and on appraisal of evidence held the plaintiff to be the owner of the disputed premises and later Dr. Shanti Swaroop to have continued as a statutory tenant under the plaintiff. However, it was further held that he did not have any transferable or inheritable interest in the tenancy in respect of the disputed premises and, thus, the trust is not a tenant in respect of the suit property by virtue of the execution of will in its favour. Further, plaintiff was held entitled to Rs. 60 only as damages. Besides, the Civil Court was held to be a proper forum having jurisdiction to decide the lis, defendants being trespassers in the disputed premises. 9. In appeal, learned District Judge upheld the findings of the trial Court vide the impugned judgment, which has now been assailed in this Second Appeal before this Court. 10. I have heard the learned Counsel for the parties at length and gone through the record. 11. Sh. K.D. Sood, learned Counsel appearing on behalf of the appellants, has very ably argued that even the right of a statutory tenant is heritable. He urged that the provisions of the Act are pari materia with the provisions of the Delhi Act. On this analogy, learned Counsel urges that in view of the interpretation placed by the Apex Court to the language of Delhi Rent Control Act, no protection with regard to the tenants in respect of commercial premises in this Act has been provided as it has been done in the case of residential premises. As such, the appellants-tenants are to be governed by the general law whereunder, transfer of a right of a statutory tenant in a tenancy is heritable. Thus, according to him, the appellants, having acquired permissible user of the disputed premises, are to be deemed to be in lawful possession. As such, the appellants-tenants are to be governed by the general law whereunder, transfer of a right of a statutory tenant in a tenancy is heritable. Thus, according to him, the appellants, having acquired permissible user of the disputed premises, are to be deemed to be in lawful possession. Alternatively, it has been urged that the provisions of the Act puts a restriction on the transfer or an assignment of the right of a tenant muchless a statutory tenant, such act is void ab initio. In that view of the matter. the heritable right of the tenant under the Act, is not affected by the testamentary succession and in that case the heirs are to be deemed to be the tenants continuing in occupation of the disputed premises. In short, as per the learned Counsel, the heirs of late Dr. Shanti Swaroop continue to be a lawful tenant. Thus, the disputed premises can only be got vacated by taking recourse to the provisions of the Act and not by way of civil suit as in the instant case. He has placed reliance on the observations made in the case of Gian Devi v. Jeevan Kumar, AIR 1985 SC 796. According to his submissions, the law laid down to the contrary in Jaspal Singh v. Addl. District Judge, Bulandshahar, AIR 1984 SC 1880 and Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala AIR 1986 SC 600, is based on the express provisions of the Act which are sufficiently restrictive in nature. The further supplements his submissions by stating that the question with regard to the testamentary disposition of the right of a statutory tenant was not considered in either of these cases and it was left open. 12. On the other hand, Sh. Shrawan Dogra, Advocate, representing the landlord—respondents, vehemently contends that both the Courts below have rightly interpreted the statutory provisions of the Act. 12. On the other hand, Sh. Shrawan Dogra, Advocate, representing the landlord—respondents, vehemently contends that both the Courts below have rightly interpreted the statutory provisions of the Act. According to him, on true interpretation of the provisions of the Act, a bequest of the right to the tenancy in respect of premises referred to in section 2 (j)of H P. Urban Rent Control Act, 1987 (hereinafter shortly referred to as the Act) after the determination of the lease, which is protected by the Act, cannot be made under a Will in favour of a stranger who in no case acquires the status of a tenting thereunder, He contends that such a person holds the disputed premises as a trespasser for the eviction of whom, no remedy is provided under the Act in as much as eviction petition under section 14 of the Act on the ground of tenant having transferred or assigned his right under the tenancy, is maintainable against the tenant and the transferee jointly and not otherwise. He urges that the Will operates after the death of its executant(s), therefore, the proceedings for the recovery of possession of the premises in dispute transferred or assigned to a person other than the heir(s) under a Will can only be initiated in a competent Court of Civil Jurisdiction. He has relied upon the observations made in the case of Jaspal Singh (supra) and that of Bhavar Lal Labh Chand Shah (supra). Relying upon the observations of the apex Court in Ram Singh and others v, Ajay Chawla, (1988) 1 SCC 364, and O.N. Bhatnagar v Smt. Rukibai Narsindas and others, 1982 (2) SCC 244, he further contends that in the instant case both Courts below have given concurrent findings of fact to the effect that respondent was the landlord of the premises in dispute and appellants were in unauthorised occupation thereof as a trespasser and in such circumstances, only Civil Court and no other Court, will have jurisdiction to order eviction. Thus, as per him the substantial question of law in the instant lis being absent, the appeal entails dismissal, 13. The sole question of law, involved in the instant appeal for the determination of this Court is: "Whether the transfer of tenancy rights by late Dr. Thus, as per him the substantial question of law in the instant lis being absent, the appeal entails dismissal, 13. The sole question of law, involved in the instant appeal for the determination of this Court is: "Whether the transfer of tenancy rights by late Dr. Shanti Swaroop, a statutory tenant, by means of testamentary dispossession, was void, if so, whether Civil Court had jurisdiction to pass the impugned judgment and decree against the Trust ?" At the very inception, I may state that I am concerned in this case with a building which, as per the evidence of the parties (Sh Surjit Singh PW-I on preliminary issues and Sh. Ajay Kumar DW-l coupled with the recitals in the Will in question) has continuously been used as a business premises, and so far as the business premises are concerned, it is covered under section 2 (e) of the Act, which reads : "2 (e) "non-residential building" mans a building being used— (i) mainly for the purpose of business or trade, or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the building resides therein : Provided that if a building is let out for the residential and non-residential purposes, separately to more than one person, the portion thereof, let out for the purpose of residence shall not be treated as non-residential building. Explanation.—Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence : Now section 2 (b) of the Act, defines the expression "building" to mean : " "building" means any building or part of a building let out for any purpose whether being actually used for that purpose or not, including any land, godowns, outhouses or furniture let out therewith, but does not include a room in a hotel, hostel or boarding house." In other words, the expression building" includes "residential building" as also non residential building. That is to say, the Act applies to all kinds of buildings. In order to know as to who is a tenant under the Act, it has been provided in section 2 (j) of the Act. That is to say, the Act applies to all kinds of buildings. In order to know as to who is a tenant under the Act, it has been provided in section 2 (j) of the Act. According to it : " tenant 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 termination of the tenancy and in the event of the death of such person such of his heirs as are mentioned in Schedule I to this Act and who were ordinarily residing with him at the time of his death, subject to the order of succession, and condition specified, respectively in Explanation I and Explanation II to this clause 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, or a person to whom the, collection of rent or fees in a public market, cart stand or slaughter house, or of rents for shops has been farmed out or leased by a Municipal Corporation or Committee or a notified area committee or a cantonment board ; Explanation I.—The order of succession in the event of death of the person continuing in possession after the termination of his tenancy shall be as follows :— (a) firstly, his surviving spouse ; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family upto the date of his death, (c) thirdly, his parent(s) if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son, daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death ; and (d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter, or parent(s) of the deceased person, or if such surviving spouse, son, daughter or parent(s) or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death ; Explanation II.—The right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs ; and. " Schedule-I of the Act deals with the devolution of the right to tenancy on the death of a tenant in respect of a building as envisaged under section 2 (j). This Schedule is as under : "1. Spouse ; 2 Son ; 3. Daughter ; 4. Mother ; 5. Father ; 6. Widow of pre-deceased son ; 7. Son of pre-deceased son ; 8. Daughter of pre-deceased son," I have already observed that a building includes residential as also non-residential building and the Act applies to both. Thus, section 2 (j) of the Act has to be read in relation to both kinds of buildings. In that view of the matter, it is significant that section 2 (j) does not provide that the said right of tenancy can devolve by means of a testamentary disposition on a legatee, who is not referred to in the respective Explanations or Schedule I of the Act Thus, in the light of the above said restrictive nature of the definition of "tenant" that this Court has to determine whether a statutory tenant can bequeath the right to such tenancy in the case of non-residential building when the Statute has imposed such a restriction ? The trust, admittedly, is not a juristic person possessing the said qualification, It is appropriate to refer here to the following observations made by Mr. Justice A.N. Sen, J. in Gian Devis case (supra), reproduced in the case of Bhavar Lai (supra) : "In the absence of the provision contained in sub-section 2 (1) (iii) the heritable interest of the heirs of the statutory tenant would devolve on ail the heirs of the so called statutory tenant on his death and the heirs of such tenant would in law step into his position. This sub-section (iii) of section 2 (1) seeks to restrict this right in so far as the residential premises are concerned. The heritability of the statutory tenancy which otherwise flows from the act is restricted in case of residential premises only to the heirs mentioned in section 2 (1) (iii) and the heirs herein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in section 2 (1) (iii). The heritability of the statutory tenancy which otherwise flows from the act is restricted in case of residential premises only to the heirs mentioned in section 2 (1) (iii) and the heirs herein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in section 2 (1) (iii). The Legislature which under the Rent Act upholds protection against eviction to tenants whose tenancies have been terminated and who continue to remain in possession and who are generally termed as statutory tenants, is perfectly competent to lay down the manner and extent of the protection and the rights and obligations of such tenants and their heirs. Section 2 (1) (iii) of the Act does not create any additional or special right in favour of the heirs of the so called statutory tenant on his death, but seems to restrict the right of the heirs of such tenant in respect of residential premises. As the status and rights of a contractual tenant even after determination of his tenancy when the tenant is at times described as the Statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the statutory tenant on his death, the Legislature which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in section 2 (1) (iii), It appears that the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act." In the above decision, the Apex Court was considering the provisions of the Delhi Rent Control Act in which also restriction had been placed on the heritability of the statutory tenancy in the case of residential premises only to the heirs mentioned in section 2 (1) (iii) of that Act and no such restriction had been placed with regard to the right of tenancy in respect of commercial premises. In Gian Devis case (supra), it was further observed : "In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. In Gian Devis case (supra), it was further observed : "In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in section 2 (1) (iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating heritability of commercial premises has also been made whereas in some Rent Acts no such provisions either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death." In the above said case of Gian Devi, the Apex Court was not concerned with the question faced by me. The Apex Court was inclined to take a view favourable to the members of the family of the tenant who would be exposed to grave difficulties if they were to be thrown out of the demised premises in which the tenant was carrying on his business till his death. The following observations were made in para 34 of Gian Devis case (supra), which clarifies this fact : "... ...A tenant of any commercial premises has necessarily to use the premises for business purposes. The business carried on by a tenant of any commercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his family. Out of the income earned by the tenant from his business in the commercial premises, the tenant maintains himself and his family; and the tenant, if he is residing in a tenanted house, may also be paying his rent out of the said income. Even if a tenant is evicted from his residential premises, he may with the earnings out of the business, be in a position to arrange for some other accommodation for his residence with his family. Even if a tenant is evicted from his residential premises, he may with the earnings out of the business, be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises, his business which enable him to maintain himself and his family comes to a standstill. It is common knowledge that it is much more difficult to find suitable business premises than to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides a business which has been carried on for years at a particular place has its own goodwill and other distinct advantages, The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going. So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also inheriting the business and they are entitled to run and enjoy the same. We have earlier held that mere termination of the contractual tenancy does not bring about any change in the status of the tenant and the tenant by virtue of the definition of the tenant in the Act and the other Rent Acts continues to enjoy the same status and position unless there be any provision in the Rent Acts which indicate to the contrary. The mere fact that in the Act no provision has been made with regard to the heirs of the tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The Legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however, flourishing it may be, and even if the same constituted the source of livelihood of the members of the family^ must necessarily come to an end on the death of the tenant only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention of the Legislature that the entire family of a tenant, depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which has been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate as they are afforded no protection under the Act. We are of the opinion that in case of commercial premises governed by the Delhi Act, the legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a Whole. It might have been open to the Legislature to limit or restrict the right of inheritance with regard to the tenancy as the Legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the Legislature to alter under the Rent Act, the Law of Succession regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law. The absence of any provision restricting the hermit-ability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act ..." Thus, from the close perusal of the above said case law laid down in Gian Devis case, it is clear firstly, that the apex Court was not ceased of the proposition as lo whether on the basis of the express provisions of the Act which are sufficiently restrictive in nature, whether a statutory tenancy which is personal to the tenant, can be bequeathed at all under a Will in favour of anybody and secondly, that the mere fact that in the Act, no provision had been made with regard to the heirs of the tenants with respect to commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, the factum of heritability of the right of a statutory tenant, was dealt with, and the case was disposed of on the basis of the express provisions of the Act which was found to be sufficiently restrictive in character. 14. In the catena of cases relied upon by the learned Counsel for the landlord-respondent, no doubt, it was laid down that a person occupying a non-residential premises as a tenant, after the contractual period is over, cannot bequeath his right to occupy the property as a tenant under a Will in favour of a legatee, yet, the 4ecision was also based on the basis of the expression provisions of the Act which were sufficiently restrictive in character. In Jaspal Singhs case (supra), the apex Court had the occasion to consider the validity of the right of a tenant to continue to occupy the premises after the determination of the tenancy under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 under a Will. Section 3 (a) of the said Act, referred to above, defined the expression "tenant", thus : "3. Section 3 (a) of the said Act, referred to above, defined the expression "tenant", thus : "3. In this Act unless the context otherwise requires : — (a) tenant, in relation to a building means a person by whom its rent is payable, and on the tenants death— (1) in the case "of residential building, such only of his heirs as normally resided with him in the building at the time of his death ; (2) in the case of a non-residential building his heirs." Similarly, in the case of Bhavar Lal (supra), the apex Court was dealing with the validity of a bequest of the right of a statutory tenant occupying a non-residential premises to continue to remain therein as such (statutory tenant) under a Will in favour of a legatee who was not a member of his family carrying on business, trade or storage with him in the said premises at the time of his death under section 5(11) (c) (ii) of the Act. Section 5 (11) reads as : “5 (11) tenant means any person by whom or on whose account rent is payable for any premises and includes— (a) such sub-tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 (Bom. Ord. No. III of 1959), (aa) any person to whom interest in premises has been transferred under the proviso to sub-section (1) of section 15, (b) any person remaining, after the determination of the-lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance (Bom. Ord. Ord. No. III of 1959), (c) (i) in relation to premises let for residence, any member of the tenants family residing with the tenant at the time of or within three months immediately preceding the death of the tenant as may be decided in default of agreement by the Court, and (ii) in relation to premises let for business, trade or storage any member of the tenants family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenants as may continue, after his death, to carry on the business, trade or storage, as the case may be in the said premises and as may be decided in default of agreement by the Court." In this case too, the apex Court disposed of the case on the basis of the express provisions of the Act which were found to be sufficiently restrictive in nature, The question, which is involved in the instant case, was left open. 15. Considering the rival arguments, advanced by the learned Counsel for the parties, the first question to be determined by this Court is whether protection under the Act has provided to a tenant in respect of not only residential building but also non-residential building ? Suffice it to state that the language used in the expression "building" referring to residential building as also non-residential building, as also the definition of tenant is in different language than the one used in the Delhi Act. I have already observed that tenant has been defined in relation to "building" and protection to the heirs of a tenant muchless a statutory tenant under section 2 (j) of the Act pertaining to the definition of a "tenant" has been extended to both kinds of premises, namely, residential building as also non-residential building, It is in the light of this fact that this Court has to view the nature of the right acquired by the legatee from late Dr. Shanti Swaroop pursuant to the Will Ex. DW-1/2. 16. The first appellate Court, while interpreting the Will (Ex. DW-1/2) held that it does not relate to the transfer of tenancy rights in favour of the appellants-trust and, therefore, defendant No.1 (Trust) has not acquired the status of a tenant in respect of the suit property by virtue of this document, referred to above. DW-1/2. 16. The first appellate Court, while interpreting the Will (Ex. DW-1/2) held that it does not relate to the transfer of tenancy rights in favour of the appellants-trust and, therefore, defendant No.1 (Trust) has not acquired the status of a tenant in respect of the suit property by virtue of this document, referred to above. In case the language used in this document is closely scrutinised, it not only refers to bequeathing of the absolute rights in the immoveable property lying in the bank, but also refers to the assets and interest in Grammer School, The Mall, Shimla and Swaroop Homeo Store, The Mall, Shimla, as also all other immoveable or moveable property of any kind whatsoever, which the executant (late Dr. Shanti Swaroop) owned at the time of his death. There is no dispute that a tenancy interest is in relation to the immoveable property (demised premises) in occupation of the appellants and, thus, this interest is also an interest in immoveable property and if so, it is heritable. Thus, seeing the nature of the right created by the creation of tenancy, the tenancy interests, in my considered opinion, amount to assets and interest of the executant on the date of his death In that view of the matter, the will in question (Ex. DW-1/2) does refer to the bequeathing of tenancy interests i.e. interest in the immoveable property and to this extent, the conclusion arrived at by the trial Court is based on wholly erroneous approach, and this being so, this Court is not precluded from arriving at this conclusion after scanning the entire evidence adduced by the patties. I am supported in taking this view by the observations of the Apex Court in the case of Jagdish Singh v, Nathu Singh, AIR 1992 SC 1604, Now the question arises as to what is the nature acquired by the appellant-Trust through the will. Obviously, the appellant cannot be considered to be a tenant in view of the definition of this expression, as envisaged in section 2 (j) of the Act. Even otherwise, tenancy is a contract in between the two parties, namely, the landlord owning the premises which are intended to be let out on the one hand and another person who is intended to be inducted as a tenant therein. Thus, it is a contract in between the two different persons. Even otherwise, tenancy is a contract in between the two parties, namely, the landlord owning the premises which are intended to be let out on the one hand and another person who is intended to be inducted as a tenant therein. Thus, it is a contract in between the two different persons. In case of bequeathing of tenancy. Interests in favour of a third party prohibited by law, it cannot be considered that tenancy has been created in favour of the subsequent occupier of the premises in dispute nor it can be considered that such an occupier is a permissible user of the premises concerned. His status is that of a trespasser and of no other category. The finding of the Court below, to this extent that the appellant-trust is a trespasser in the premises in dispute, is absolutely right. I agree with the same. 17. The next question for determination of this Court is that if once the will in relation to the tenancy rights having been executed in favour of a third party other than the heirs envisaged under section 2 (j) of the Act is found to be invalid, what is the position of the heirs, who, in ordinary course, were entitled to inherit the tenancy interest under the general law as also under the special law (the Act). It is well settled that succession never remains in abeyance. Interest left behind by the deceased being heritable, in such circumstances, is to be deemed to have been inherited by his heirs whosoever he may be. In the instant case, late Dr. Shanti Swaroop died on 27th September, 1977. In the circumstances, his heirs are to be deemed to have inherited the estate including the tenancy interest in the demised premises. In other words, in case it is found in the instant case that heirs were in existence on the date of death of late Dr. Shanti Swaroop, the next question for determination would be as to which is the forum where the landlord can get his relief for eviction of the demised premises ? 18. In the instant case, it has been urged that Civil Court had no jurisdiction to entertain the suit filed by the landlord-respondent (plaintiff) on the ground of the latter being a trespasser, inasmuch as the evidence has been adduced by the parties to show that heirs of late Dr. 18. In the instant case, it has been urged that Civil Court had no jurisdiction to entertain the suit filed by the landlord-respondent (plaintiff) on the ground of the latter being a trespasser, inasmuch as the evidence has been adduced by the parties to show that heirs of late Dr. Shanti Swaroop are in existence. - 19. The general principle which governs the question of jurisdiction at the inception of suits has been discussed in detail in the case of Raizada Topandas and another v. M/s. Gorakhram Gokalchand, AIR 1964 SC 1348, as follows : "The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If he frames his suit in a manner not warranted by the facts, and goes for his relief to a Court which cannot grant the relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the Court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper Court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of Court to which the Court belongs, the plaintiffs suit will have to be dismissed in its entirety." The observations made in the case of O.N. Bhatnagar (supra) and that of Ram Singh and others (Supra) lends support to this principle. Thus, in view of the above said principles, in order to see whether civil court had jurisdiction to entertain and finally adjudicate upon the lis in question, I advert to the pleadings of the parties. 20. In para 5 of the plaint, the plaintiff has alleged that: "On the death of Dr. Thus, in view of the above said principles, in order to see whether civil court had jurisdiction to entertain and finally adjudicate upon the lis in question, I advert to the pleadings of the parties. 20. In para 5 of the plaint, the plaintiff has alleged that: "On the death of Dr. Shanti Swaroop, all rights, title and interests held by the deceased came to an end and there was none who could be entitled to get the property under the law and as such, the possession of defendant No.1 and defendants 2 to 6, is unauthorised, illegal and without consent of the plaintiff.” In reply to this para, it has been stated that : "The contents of para 5 of plaint are absolutely false and baseless and, therefore, denied. All the rights, title and interests including the contractual tenancy rights held by late Dr. Shanti Swaroop at the time of his death in the premises in question, devolved upon the defendant No.1 by virtue of the said will............" In replication too, the plaintiff-landlord has reiterated the assertions made in the plaint It is to be noted that no issue has been framed with respect to the fact as to whether late Dr. Shanti Swaroop left any heir or not. However, evidence has been led by the appellants-Trust by way of recitals in the will (Ex. DW-1/2) indicating that heirs of late Dr. Shanti Swaroop, namely, his nephew Shri Arjan Dass and grand nephews S/Sh. Paras Ram and Tirath Ram had inherited all the other personal assets other than the one detailed in this document. It would be better to quote an extract from the will (Ex. DW-1/2) : ".........except my personal domestic articles which I hereby devise and bequeath to my nephew Shri Arjan Dass son of Shri Choohar Mal, Khaiber Line, Katni Refugee Camp, Katni and my grand nephews S/Sh. Paras Ram and Tirth Ram, sons of Shri Narain Dass of Station Road, Katni in equal parts........." Obviously, this Will came into operation on the death of late Dr. Shanti Swaroop on 27th of September, 1977. Both parties base their case as to the inheritance of the disputed premises on the basis of this document. Both parties were alive to the real controversy arising in between them Both parties led evidence in support of their respective claims. Shanti Swaroop on 27th of September, 1977. Both parties base their case as to the inheritance of the disputed premises on the basis of this document. Both parties were alive to the real controversy arising in between them Both parties led evidence in support of their respective claims. Allegations made in the plaint in para 5 were specifically denied by contending that contents of para 5 were totally false and hence denied. No doubt, applying the principle laid down in the case of Raizada Topandas (supra) and other cases, referred to above, the Civil Court had jurisdiction to entertain the suit, yet, during the pendency of the suit it has come to the notice of the Court as also parties to the instant lis that heirs of late Dr. Shanti Swaroop were in existence, who also simultaneously inherited a portion of the estate left behind by the deceased. However, once the Court was apprised of these facts, it should have taken a judicial notice of section 14 (1) of the Act, which reads : "14 (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. (2) ............" 21. In fact, it was the specific assertion of the plaintiff-landlord that late Dr. Shanti Swaroop left behind no person entitled to get the premises in dispute. Thus, the onus to prove this fact lay upon the plaintiff-landlord under section 101 of the Indian Evidence Act, 1872, which lays down that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. On the other hand, defendants by production of will has proved the existence of the heirs. In such a situation, the Courts below having not adverted to the question as to whether effective decree could of could not be passed, have committed an error. In the cases relied upon by the learned Counsel for the plaintiff-landlord, this question had not been considered. In such a situation, the Courts below having not adverted to the question as to whether effective decree could of could not be passed, have committed an error. In the cases relied upon by the learned Counsel for the plaintiff-landlord, this question had not been considered. Even otherwise, those cases pertained to the circumstances where absolute protection with respect to the rights of the tenants in the demised premises had been given by the Rent Acts, namely, Bombay Act aged U.P. Act, meaning thereby that in those cases, any document transferring or assigning the rights of a tenant muehkss a statutory tenant in the premises occupied by the tenant, was void ab initio. In the instant case, it cannot be said that the document in question, namely, Will Ex. DW-1/2 is a void document, in the sense that transfer or assignment of right in the tenancy even after the determination thereof, could have been done with the consent of the landlord and if that had been the case, it was a valid document. However, as the document in question DW-1/2, the Will, has been executed without the consent of the landlord in the instant case, it being a voidable document, had been assailed by the plaintiff-landlord. There is no dispute that in case the tenant who executes a Will or any document transferring or assigning right in the tenancy after the determination thereof to any person, without the written consent of the landlord, then this act of the tenant, affords a right of eviction to the landlord concerned under section 14 (ii) (a) of the Act. In other words, for seeking an order of eviction against a person in unauthorised occupation of the premises, located in an area to which Rent Act applies, the landlord could only get the relief by filing an eviction petition before a Rent Controller. The facts proved and as they emerge from the record of the instant case, also do not make any difference in respect of judging the forum in the instant case. As I have already observed that succession never remains in abeyance, heirs are to be deemed to have inherited the tenancy rights and, therefore, on the date of death of late Dr. Shanti Swaroop, tenants also exist. The status of legatee under the Will Ex. As I have already observed that succession never remains in abeyance, heirs are to be deemed to have inherited the tenancy rights and, therefore, on the date of death of late Dr. Shanti Swaroop, tenants also exist. The status of legatee under the Will Ex. DW 1/2 was that of a trespasser and in these circumstances, the proper forum was that of a Rent Controller, where the landlord could have filed the eviction petition, obviously on the proved facts. Before the trial Court, the existence of tenants as also a trespasser had been proved. The moment it is so found, the trial Court ceased to have jurisdiction to proceed further to give relief of eviction to the plaintiff-landlord in view of section 14 (1) of the Act. Thus, in my opinion, the ultimate decisions of the Courts below are without jurisdiction. The proper forum in which landlord-plaintiff could seek his remedy, was by filing eviction petition before the Rent Controller. I hold so 22. In view of the discussion made above, the appeal is accepted and the judgments and decrees of the Courts below are set aside, being without jurisdiction. In the peculiar facts and circumstances of the instant case, the plaint as also the documents annexed therewith, are ordered to be returned to the plaintiff. The plaintiff is at liberty to have recourse to the remedy available to her under the law, in the proper forum, if she so desires. Parties are, however, left to bear their own costs. Appeal allowed.