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2003 DIGILAW 728 (RAJ)

Rikhabraj v. Dwarka Das

2003-05-12

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioners filed a suit for eviction against the defendant-non-petitioner on the ground that the defendant is tenant of the property in dispute. According to the plaint allegation, the suit premises was taken on s rent by the defendant from Shila Devi etc. from whom the plaintiffs purchased the suit property by the registered sale deed dated 21.1.1995. It is also submitted that the seller of the property in dispute informed the defendant that the suit property has been sold to plaintiffs and the erstwhile landlord informed the defendant to pay the rent of the premises to the 10 purchasers-plaintiffs. According to the plaintiffs, the defendant failed to make payment of the rent and thereby he is defaulter in payment of rent for more than six months, hence, liable for eviction on the ground of default.The defendant denied the plaint allegation with respect to the relationship of landlord and tenant and also submitted that the suit property is has been purchased by the defendant. The trial court heard arguments on the question of determination of rent and thereafter, by order dated 29th Nov., 2000 refused to determine the rent on the ground that since the defendant has claimed himself to be the owner of the property, therefore, the relationship between the tenant and defendant has been proved before determination of rent. 3. The plaintiffs-petitioners preferred an appeal against the trial court's order dated 29th Nov., 2000, which was dismissed by the appellate court by specifically holding that there is no material or evidence available on record establishing prima facie relationship of landlord and tenant between the plaintiffs and defendant and thereafter, dismissed the appeal of the appellants resulting into non-determination of the rent of the suit property. 4. 4. According to learned counsel for the petitioners, as per the requirement of determination of rent under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short 'the Act of 1950'), if the rent is determined, the defendant is not going to be prejudiced rather it will advance the cause of justice and even in case of non-deposit of the rent by the defendant, in the circumstances, will only make the defendant liable for having order of striking off his defence and in that situation also the defendant's case is not going to be prejudiced because of the reason that the plaintiffs even cannot get the decree of eviction, unless, they prove the relationship of landlord and tenant between the plaintiffs and defendant. it is also submitted that in the course of trial of the suit, the defendant may change his stand and may request to determine the rent on finding that it will be difficult for the defendant-tenant to contest the suit on the basis of pleas, which have been taken by the plaintiffs only in the written statement and the defendant may claim himself to be tenant in the suit premises and ask for the is benefit under the provisions of Rent Control Act providing determination of rent of the default period. Learned counsel for the petitioner relied upon the recent judgment of the Single Bench of this Court delivered in the case of Shantilal v. Chhaganlal, and connected petition reported in 2003 (1) DNJ (Raj.) 195 wherein Single Bench of this Court held that where the Court was prima facie satisfied that no relationship of landlord and tenant exists between the parties. Still, the Court need not to decline to determine the rent. 5. Learned counsel for the non-petitioner defendant submits that the courts below have committed no illegality in view of two judgments of this Court; one of which is Shan Mohd. v. Hanif, reported in 1995 (1) WLC (Raj.) 703 where in Hon'ble Chief Justice of this Court relying upon the earlier Division Bench judgment delivered in the case of Mst. 5. Learned counsel for the non-petitioner defendant submits that the courts below have committed no illegality in view of two judgments of this Court; one of which is Shan Mohd. v. Hanif, reported in 1995 (1) WLC (Raj.) 703 where in Hon'ble Chief Justice of this Court relying upon the earlier Division Bench judgment delivered in the case of Mst. Tulsi v. Sachhanand and other, connected revision petitions reported in 1993 (2) RLR 498 held that provisional rent cannot be determined unless there is prima facie proof of relationship of landlord and tenant between the plaintiff and defendant, Learned counsel for the respondent submits that these judgments were not brought to the notice of the Single Bench when the single Bench decided the case of Shantilal v. Chhaganlal (Supra). 6. It is clear from the facts mentioned above and the facts narrated by learned counsel for the petitioners that the petitioners have filed the suit for eviction on the ground of alleged default in payment of rent. The first appellate court has very categorically held that the plaintiff failed to place on record any evidence to prima facie prove the relationship between the landlord and tenant, therefore, the rent cannot be determined. it is also clear from the judgment referred above that the Division Bench of this Court in the case of Mst. Tulsi v. Sachhanand (supra) very specifically held that the court -is required to find out prima facie relationship of landlord and tenant for the purpose of determination of provisional rent. This decision of the Division Bench is binding. This view was followed in subsequent judgment of Shan Mohd. v. Hanif (supra). These judgments were not brought to the notice of the learned Single Bench when the case of Shanti Lal v. Chhaganlal & Ors. , (supra) was decided. Therefore, in view of the binding precedent, the Courts below have not committed any illegality in not determining the rent of finding that there exists is prima facie evidence of relationship of the landlord and tenant between the parties.The contention of learned counsel for the petitioners that rent even can be determined in the cases where there is no proof of relationship of landlord or tenant and even cases where the rival ownership is claimed, cannot be entertained in view of binding decision delivered by the Division Bench of this Court. 7. 7. Therefore, I do not find any merit in the present revision petition and the same is dismissed.Revision Dismissed. *******