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J&K High Court · body

2003 DIGILAW 15 (JK)

Vidya Devi v. Sham Dass

2003-02-10

T.S.DOABIA

body2003
1. Litigation initiated in the year 1981 against one Chet Ram is now being defended by his widow and children. Chet Ram who has since died and who is now represented by the appellants was a tenants of shop, details whereof have been given in the suit filed by the plaintiff-respondent. This is located at Kanak Mandi, Jammu. This was under the ownership of Dharmarath Trust. A rent deed in this regard was extecuted on 9th Jan ˜63. The monthly rent was Rs 25/- . This shop was later-on sold to the plaintiff respondent by the Dharmarath Trust. The requisite information regarding the transfer of ownership right i.e. about the factum of purchase of the shop by the plaintiff respondent was conveyed to the appellants predecessor (herein-after referred to as the tenants). After having assumed the rights of ownership on the strenth of a sale deed, the plaintiff respondent sought to recover the possession from the tenants. It was pleaded interalia that the tenants did not make payment of rent to the plaintiff after the property was purchased by him. It was pleaded that they fell in arrears for a period exceeding two months. The husband of the appellant No. 1 was called upon to clear the arrears within a period of thirty days from the date of receipt of notice. In addition to the calling upon him to pay the arrears, he was also called upon to vacate the premises by 10th July™ 81. A reply was given to this notice. This is dated 27th July™ 81. The rent was also tendered. Even thoughm the rent was tendered first through a bank draft and later through money order but this was not accepted. This was on the plea that there was no unconditional acceptance of rithts of ownership. It was thus pleaded that the tenants became defaultes as contemplated by the Jammu and Kashmir House and Shops Rent Control Act. It was further pleaded that hte premises were reasonably required for the purposes of re-building. It was also pleaded that the plaintiff respondent wanted to raise a multi-storeyed building and had taken effective steps for getting the site plan sanctioned from the Municipal authorities at Jammu. It was also stated that the construction would be in the larger interest of public as more space would become available and this space could be utilised for commercial purposes. 2. It was also stated that the construction would be in the larger interest of public as more space would become available and this space could be utilised for commercial purposes. 2. The suit was resisted. It was pleaded that the question as to whether the plaintiff respondent herein ahd become landlord requires to be determined. A plea was also takne that there was no default on the part of Chet Ram, who as indicated above, is now represented by him legal heir. For sustaining this later plea, it was stated that a bank draft and money orders was sent; this was refused by the plaintiff. Thereafter, the rent was deposited with the Rentr Controller. The alleged requirement for the purposes of re-building of the shop, it was pleaded does not exist and this plea on the part of plaintiff respondent, it was stated was merely a devise for seeking a decree of eviction. On the pleading of the parties, four issues came to be framed. For facility of reference, these are being reproduced below :- i/ Whether there exists the relationship of landlord and tenant between the parties in view of the purchase of said shop. OPP ii/ Whether the defendant has committed more than three defaults in payment of rent within a period of 18 months. OPP iii/ Whether the suit shop is needed by the plaintiff for re-building and whether the reconstruction will add to its accommodation in the public benefit. OPP iv/ Whether the suit deserved to be stayed, if so, why. OPD� 3. Before proceeding further, the notice given by the plaintiff and the reply given by the defendant be noticed. These are being reproduced below:- Sh Chet Ram ................ Dear Sir, I have been instructed by my client Shri Sham Dass Gupta, S/o Sh Nand Ram, R/o Jammu, to serve the following notice upon you. i. That you were inducted as a tenant by the Dharamarath Trust, Jammu and Kashmir Jammu in a Single storeyed shop situate in Kanak Mandi, Jammu. You executed a rent deed in favour of the Dharamarath Trust on 9.1.1963. The rent agreed to be paid by you to the Trust was Rs. 25/- per month. After occupying shop aforesaid you continued paying rent at the aforesaid rate to the Dharamarath Trust. ii. You executed a rent deed in favour of the Dharamarath Trust on 9.1.1963. The rent agreed to be paid by you to the Trust was Rs. 25/- per month. After occupying shop aforesaid you continued paying rent at the aforesaid rate to the Dharamarath Trust. ii. That the Dharamarath Trust, Jammu and Kashmir, Jammu through its power of attorney holder sold the shop to my client vide a sale deed dt 27.11. .... registered with the Registered Jammu on the same day. With the execution and registration of the sale deed, my client became the owner of the shop and your consequently became a tenant under him. After the purchase of the shop by my client you were liable to pay rent to him in respect of the shop under your tenancy. You despite the knowledge of the sale deed aforesaid did not pay and rent to my client and as such are a defaulter within the meaning of Jammu and Kashmir Houses and Shops Rent Control Act. iii. Though you have the knowledge of the sale of the shop aforesaid by my client yet a photostat copy of the said sale deed is a nexed herewith for your perusal. iv. That the tenancy created by Dharamarath Trust in your favour was a month to month tenancy starting from the first of every English calander month and terminable at will. Since you are a defaulter, my client does not want to continue tenancy and has instructed me to terminate the same by way of this notice. My client has further instructed me to demand the arrears of rent from you. 4. I, therefore, for and on behalf of my client do hereby terminate your tenancy and call upon you to hand over the vacant possession of the shop under your tenancy (35 Gandham Mandi, Jammu) on 31st August, 1981 or on such other date on which you deem your month of tenancy to expire. I further call upon you to make the payment of Rs. 175/- being the arrears of rent within a period of 30 days from the receipt of this notice. 5. In case you fail to do as called upon hereinabove, my client shall be constrained to file a suit for your ejectment and for the recovery of arrears of rent in a competent court of jurisdiction entirely at your risk and expenses. 5. In case you fail to do as called upon hereinabove, my client shall be constrained to file a suit for your ejectment and for the recovery of arrears of rent in a competent court of jurisdiction entirely at your risk and expenses. A copy of this notice has been retained in my office for the purpose of record. ...........� The reply given to this notice on 27th July™ 81 by the defendant be also ntoced: Sh Ashok Vijay Gupta Advocate, High Court of J&K District Courts, Jammu Shri Chet Ram, S/o L. Lathu Ram Mahajan R/o Kanak Mandi, Jammu (hereinafter called my client) instructed me to reply your reference No ........ dated 10.7.1981 that even though the relationship of landlord and tenant between Sh Sham Dass Gupta s/o Sh Nand Ram. R/o Jammu, your client, and my client is disputed yet to avoid unnecessary litigation, pertaining to the eviction on the ground of default, the draft No. 921008 drawn upon the Central Bank of India dt. 24.7.1981 in favour of Sh Sham Dass Gupta is being sent herewith as payment of tentamount demanded by you vide your notice under reference. This amount is being paid without prejudice to the rights of my client (Shri Chet Ram) to challenge the title of your client to await the judgment of the suit filed by my client challenging the alienation made by the Dharamarath Trust and restarain from filing a frivolous suit for ejectment against my client. My client reserves his right to recover the amount of Rs. 175/- from your client after the decision of the suit already filed by him. 6. A copy of this letter has been retained in my office for record to be utilised and when required. A draft is attached herewith for payment to your client subject to the conditions stated herein above............ ...............� Now issue No 2 be examined at the first stage. 7. It is not in dispute that a notice dated 10th July™ 81 which stands reproduced above was served upon the tenants. In this notice, there is a recital of the effect that the (Chet Ram) was inducted as a tenant by the Jammu and Kashmir Dharmarath Trust, Jammu. It is further stated in the notice that a montly rent of Rs.25/ was being paid. In this notice, there is a recital of the effect that the (Chet Ram) was inducted as a tenant by the Jammu and Kashmir Dharmarath Trust, Jammu. It is further stated in the notice that a montly rent of Rs.25/ was being paid. It was also stated that the Trust aforementioned through its attorney holder had sold the property through a duly registered sale deed. It was this factor which was brough to the notice of the tenants (Chet Ram) and he was called upon to make the payment of the rent. A reply which also stands noticed above was given on 27th July™ 81. A perusal of the same makes it apparent that a statement of fact was made that there is a dispute as to whether the sale made in favour of the plaintiff respondent was in accordance with the law or not. Reference has been made to some other litigation. Thereafter the amount of the rent was tendered. This was done through a bank draft. This was not received. A money order was sent. Then the rent was deposited with the Rent Controled. If above be the position, then can it be said that the aforementioned Chet Ram was disputing the relationship of landlord and tenant. He had merely stated that nodoubt, some alienation has been made, but this is pending adjudication. Notwithstanding this stand, the amount claimed by the plaintiff respondent towards the rent of shop was tendered. If this be the situation, then it can be said that the tenant Chet Ram was merely protecting his rights so that he may not be confronted with a plea later on that he had given up hiis claims. In these circumstances, the question would arise as to whether there was denial of the status of landlord and tenant and whether this was a justifiable ground to not to accept the amount tendered by the defendant in the suit. 8. I am of the opinion that where a person in possession merely challenges the status of a person who claims to be the owner in pursuance of a alienation, then, it cannot be equated with a consequence as has been construed in the present case. Again the plaintiff was not the original landlord. 8. I am of the opinion that where a person in possession merely challenges the status of a person who claims to be the owner in pursuance of a alienation, then, it cannot be equated with a consequence as has been construed in the present case. Again the plaintiff was not the original landlord. Any unequivocal admission of ownership of the plaintiff could have jeopardised the rights of the tenant vis-a-vis the original owner had the sale deed been found to be bad. In such a situaton, this would have exposed the tenant to a similar attack from the original owner i.e the original owner would have said that the accepting the ownership of another person , he has rendered himself to eviction on the ground of denial of title. The tenant Chet Ram had tendered the amount of rent. A bank-draft was sent. This was not accepted. Then, a money order was also sent. This was not accepted. Then, a money order was also sent. When money order was sent, then there was no reservation made as was made when earlier remission was made by the bank draft. Therefore, to say that Chet Ram had denied the relationship of landlord and tenant is not the right way of looking at the matter. It is accordingly concluded that there was no denial of relationship of landlord and tenant on the part of defendant Chet Ram. All that was said by the defendant was that a suit stood filed, which was subjudice. It was in these circumstances pleaded that it would not be possible to admit the ownership and this is being admitted subject to litigation initiated by him. As indicated above, the defendant Chet Ram not only sent a draft but lateron, sent a money order also. As there was failure to accept the tender, he resorted to the provisions of Sec, 14 of the Act also. The fact that he had filed an application and made a deposit in terms of aforesaid section wuld also show that there was no intention on the part of original defendant to dispute the ownership right which may lead to face the consequences when a person denies ownership. All that was being said was that the tenant is reserving his rights to seek relief in the suit already filed by him. All that was being said was that the tenant is reserving his rights to seek relief in the suit already filed by him. Taking resort to legal proceedings is a right of a citizen and if he has taken resort ot that and if he makes mention of that in the pleading sand then taken further, steps, that cannot be taken as furnishing a ground of eviction on the ground of denial of ownership. The denial had to be absolute; it is not so in this care. The respondent plaintiff was claiming ownership for the first time. It was not a case where Chet Ram was inducted as a tenant by the plaintiff respondent. Had that been the position and had there been a denial of the title, then things would have been different. Such is not the case here. Therefore, the findings recorded on issue No 2 are reversed. Issue No. 3 be now examined. 9. The shop in question was purchased by the plaintiff respondent on 27th Nov™ 80. The notice referred to above, was sent on 10th July™ 81. All that was said was that tenancy is being terminated and the defendant Chet Ram was called upon to pay the rest. In the notice, there is no mention of the fact that the landlord wanted to re-build the property. Therefore, the question as to whether the premises was required bonafide for re-building purpose, is a matter which has to be looked into with suspicion. Had there been an intention to rebuild the property, then, this fact should have been mentioned in the notice and it had been apt to make the defendant aware of the same. Though there may not be any legal requirement but propriety and good sense of justice did require that the tenant is put to notice. As the tenant had compled with the notice and the statutory provisions and had deposited the rent, therefore, the landlord thought of invoking another ground for seeking eviction. This was in these circumstances, as an after-thought, a second ground was sought to be taken and that was made the basis in the plaint in question. 10. The question as to whetehr the preparation of the plan on the part of plaintiff respondent would come to his rescue be now examined. 11. The site plan was prepared on 11th Nov™ 81. This was approved on Ist Dec™ 82. 10. The question as to whetehr the preparation of the plan on the part of plaintiff respondent would come to his rescue be now examined. 11. The site plan was prepared on 11th Nov™ 81. This was approved on Ist Dec™ 82. The suit was filed on 19th Dec™ 81. The approved site plan shows that the existing show measures 28™.6� x 11™.9�. In the approved plan the area shall stand reduced to 18™.3� x 11™.9�. On rebuilding only 70% of the area is to be covered as built up area and the construction is to be raised 25™ away from the centres of the road. Concept of set back has to be observed. Thus, the accommodation is likely to decrease on rebuilding and therefore, to say that the construction which wuld be available after rebuilding would be for the benefit of public and that larger space would become available is an argument which cannot be acccepted. As indicated above, there is no proposal to contruct a multi-storeyed building; this is not apparent from the site plan. This aspect of the matter has been adverted to above. The plea thus taken to re-build is not bonafide. It is an after- thought. This plea has been taken only after the defendant Chet Ram had tendered the rent. By this, an additional ground has been created. The fact that this plea was not taken in the notice was indicative of the fact that it has been taken only with a view to create an additional ground. Thus, the finding recorded on issue No 3 is also reversed. It is accordingly concluded: i/ That a valid tender was made by the defendant Chet Ram; ii/ That mere mention of the fact that litigation regarding owner ship is pending would not amount to denial of title. This is only a recital of a fact as non-mentioning of the same would have rendered the defendant in the suit guilty of suppressing facts. Mere mentioned of litigation does not amount to unequivocal denial of ownership. The tender made thereafter should have been accepted. Having not done so, the tenant was left with no option but to tender the same in terms of Section 14 of the Act. Mere mentioned of litigation does not amount to unequivocal denial of ownership. The tender made thereafter should have been accepted. Having not done so, the tenant was left with no option but to tender the same in terms of Section 14 of the Act. iii/ That the need shown by the respondent to rebuild the property is not bonafide as the area after rebuilding is to decrease and the plea taken that further construction would be in the interest of public as more accommodation would be available for commercial purposes is a plea which cannot be accepted. 12. This appeal as such is allowed. This tenants are held entitled to continue in possession of the shop in question. Disposed of accordingly.