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2005 DIGILAW 1902 (RAJ)

Babu Khan v. Bhanwarlal

2005-07-26

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-Heard learned Counsel for the appellant. 2. This second appeal against the Judgment and decree dated 04.05.1998 passed by the Additional District Judge No. 1 Bikaner in Civil Appeal No. 17/1986 has been submitted by the legal representatives of deceased-defendant Babu Khan. By the impugned Judgment and decree dated 04.05.1998, the learned Appellate Judge has dismissed the two appeals filed by Babu Khan-defendant and affirmed the Judgment and decree dated 17.04.1982 passed by the trial Court. 3. The dispute between the parties was raised before the trial Court by way of two cross suits. Civil Suit No. 132/1971 was filed by Babu Khan against Bhanwarlal and others being the heirs of late Motilal. Babu Khan alleged that he mortgaged a house situated at Ghee Patti, Bikaner with late Motilal in the year 1969 and when he was asked for further loan of Rs. 1,200/-, Motilal represented that the loan could not be advanced by keeping the house on mortgage, therefore, Babu Khan was asked to execute a sale-deed of the house which would be re-conveyed after repayment of the loan. Therefore, according to Babu Khan, Motilal cheated him and got the sale-deed of the house executed on 06.03.1969 and got it registered on 07.03.1969 but he never sold the house to Motilal but only mortgaged it and he was entitled to get such declaration and have the property redeemed. According to the plaintiff-Babu Khan, the defendants who were legal representatives of Motilal were asserting themselves to be the owners of the house and they refused when were called upon to redeem the mortgage. Hence, the suit was filed for redemption of mortgage. The suit so filed was contested by the defendants in the said suit present respondents denying the plaint averments and asserting that a valid and absolute sale of the property was made and the possession was delivered to the purchaser. The transaction was of a sale and not of mortgage. It was also submitted that the property was taken on rent from Motilal and the tenant Babu Khan has defaulted in payment of rent. 4. The transaction was of a sale and not of mortgage. It was also submitted that the property was taken on rent from Motilal and the tenant Babu Khan has defaulted in payment of rent. 4. Prior to filing of the aforesaid suit by Babu Khan, the heirs and legal representatives of Motilal had already filed a suit against Babu Khan on 10.11.1970 before the Munsif , Bikaner (later on numbered as C.O. No. 23/1972) in which they claimed that the house in question was let out to Babu Khan and he has executed Kabuliyatnama of being a tenant in the suit property; and that his tenancy has been terminated by way of notice dated 01.09.1970. This suit was filed seeking eviction to Babu Khan-defendant from the suit premises on the ground of default in payment of rent and substantial damage. Claim for arrears of rent was also made. The present appeal has arisen from this suit filed by the heirs of Motilal. 5. In this suit filed by the heirs of Motilal, the defendant Babu Khan submitted that the house in dispute was of defendant alone and it was mortgaged only but fraudulently a sale-deed was got executed. The defendant was illiterate and a simpleton and got swayed by the assertions of Motilal, although he never sold the house but only mortgaged it and the plaintiffs were never given possession of this house. 6. Issues were framed in the two suits are referred hereinabove and thereafter on 012.1972, Civil Suit No. 132/1971 filed by Babu Khan was consolidated with Civil Suit No. 43/1972 filed by Bhanwarlal and others and both the suits were ordered to be tried together. 7. After evidence of the parties, the relevant issues in the suit filed by Babu Khan, as to whether he has only mortgaged the property and not sold the same and as to whether he was entitled for redemption of mortgage were decided against Babu Khan plaintiff in the said suit. The learned trial Court relied upon the documentary evidence in preference to the oral evidence put forward by Babu Khan and it was held that by the evidence of the plaintiff , it was not established that Motilal fraudulently got the sale-deed executed. The learned trial Court relied upon the documentary evidence in preference to the oral evidence put forward by Babu Khan and it was held that by the evidence of the plaintiff , it was not established that Motilal fraudulently got the sale-deed executed. It was also found that plaintiff Babu Khan had admitted execution of the rent note (Exhibit-3) and his oral evidence that no such rent note was executed cannot be believed. Accordingly, the suit filed by Babu Khan (Civil Original No. 131/1971) was ordered to be dismissed. 8. So far the other suit No. 43/1972 was concerned, it was found proved that relationship of landlord and tenant came into existence between Babu Khan and Motilal after the house was sold to Motilal for Rs. 3,000/-by reference to the sale-deed Exhibit-2 and the rent note Exhibit-3. The plaintiff-Kanwarlal deposed to the effect that rent was due since 011.1969 but Babu Khan has not controverted this statement nor paid the rent and on the contrary, he attempted to assert himself as the owner of the property by alleging the sale-deed to be a mortgage deed. The learned Munsif found that the tenant was neither willing nor ready to make payment of the rent. The case of damage to the property was of course not accepted for want of evidence, however, it was found that the tenant has failed to make payment of rent and his other allegations of having not sold the property could not be accepted. 9. It was also observed by the learned Munsif that this suit was filed on 10.11.1970. The plaintiff neither made the payment of the rent on the first date of hearing nor deposited it in the Court nor submitted any application in that regard. Section 13-A was added to the Act from 29.09.1975 but the defendant did not make any application under the said provision either. He has asserted himself to be the owner of the property which question has already been decided against him and, therefore, he was liable to be evicted. Accordingly, the suit was decreed for ejectment and so also for the entire arrears of rent of Rs. 255/-till filing of the suit and for further Rs. 23/-per month from the date of the suit. 10. Accordingly, the suit was decreed for ejectment and so also for the entire arrears of rent of Rs. 255/-till filing of the suit and for further Rs. 23/-per month from the date of the suit. 10. Against the Judgment and decree passed by the learned Munsif dated 17.04.1982 in two suits as aforesaid, two Appeals No. 115/1985 and 17/1986 were taken by Babu Khan. While the first one related to the suit filed by Babu Khan himself , the second one related to the suit filed against him. In Appeal No. 115/1985 the learned Additional District Judge, Bikaner after a comprehensive consideration of the entire evidence on record affirmed the findings recorded against Babu Khan and found that his suit has rightly been dismissed. The learned Appellate Judge again considered the entire evidence in respect of the suit filed against Babu Khan for eviction and arrears of rent and found proved the fact that he was a defaulter in payment of rent. It was also observed that Babu Khan has renounced his character as tenant and has denied the title of landlord and on this ground also, the decree for eviction could be passed. Accordingly, both the appeals were dismissed. 11. The present appeal arises out of the aforesaid Suit No. 43/1972 being the suit for eviction and arrears of rent. On 10.07.1998, it was observed in this appeal that the question of law which appeared to be involved in the case related only to default. Therefore, show cause notice was ordered to be issued to the respondents to show cause as to why the appeal be not admitted and/or disposed of at this stage. The record of the proceedings show that this appeal has thereafter remained pending either for service of notices upon respondents or for the proceedings for substitution of legal representatives. Be that as it may, today on the appeal having been taken up for admission during the course of arguments, learned Counsel for the appellant admitted the fact that present appeal was only in relation to the suit for eviction and the other appeal filed by Babu Khan in relation to the suit for declaration and redemption of mortgage (Suit No. 132/1971 aforesaid) being S.B. Civil Second Appeal No. 209/1998 has already been dismissed by this Court. The learned Counsel informed that the said appeal was dismissed on 10.07.1998 itself when the show cause notice was ordered to be issued in the present appeal 12. The result of the dismissal of the appeal arising from Suit No. 132/1971 remains that finding of fact that Babu Khan sold the property to Motilal has become final. In view of the other findings of fact, it is also apparent that the character and capacity of Babu Khan was only that of a tenant in the suit premises after he sold the same to Motilal, in view of rent note Exhibit-3. 13. In the present second appeal, learned Counsel for the appellant attempted to raise the following as substantial questions of law: that two Courts below have erred in not making determination of rent despite the suit being based on the ground of default; that without determination of rent passing of the decree for ejectment was contrary to law; that passing of the decree for ejectment on the ground of denial of title without pleadings, issues and evidence was also contrary to law; that the rent note Exhibit-3 was executed only towards security of the interest; as to whether the plaintiffs were entitled to maintain the suit without obtaining a succession certificate towards arrears of rent; and as to whether the Courts below have erred in not considering the document Exhibit-2 as mortgage deed. 14. So far the question regarding the effect of document Exhibt-2 is concerned, it is at once clear that appellants are not entitled to raise such a question now after the finding to the effect against Babu Khan has been recorded by the two Court below in Suit No. 132/1971 and as frankly conceded by the learned Counsel for the appellant, Civil Second Appeal No. 209/1998 filed by the present appellants in relation to the said suit has been dismissed by this Court. As a corollary to the concluded finding of fact that the property was sold by Babu Khan to Motilal, it is also established on record that Babu Khan became a tenant in the suit property by executing the rent note Exhibit-3. As a corollary to the concluded finding of fact that the property was sold by Babu Khan to Motilal, it is also established on record that Babu Khan became a tenant in the suit property by executing the rent note Exhibit-3. The learned Courts below have properly appreciated the evidence on record and have come to a categoric finding of fact that Babu Khan became tenant in the suit property and the question raised by the appellants that rent note was merely towards security of the interest cannot be given any credence, once it has been found that there was already sale-deed executed by Babu Khan and that the transaction was not that of a mortgage as suggested by him. So far the question regarding succession certificate is concerned, the same has unnecessarily been raised. The suit was filed for eviction and recovery of arrears of rent after the death of Motilal and it has been pointed out by Kanwarlal that rent has been claimed of the period which was due after the death of Motilal. There was no question of the plaintiffs being obliged to obtain a succession certificate for maintaining this suit. 15. So far the question proposed by the appellants about the invalidity of the decree of the ground of default because of the Court failing to make determination of the rent, it may be pointed out that the questions so raised are entirely misplaced. The present suit was filed on 10.11.1970 and the law applicable to such a suit based on the ground of default was contained in Sub-sections (3) to (7) of Section 13 as then existing in Rajasthan Premises (Control of Rent & Eviction) Act, 1950. 16. It was the specific duty of the tenant to have deposited the entire rent on the first date of hearing alongwith interest or within such time not exceeding two months as may be extended by the trial Court on an application filed in that behalf . In case there was any dispute, the same was specifically required to be raised as contemplated by Sub-section (5) of Section 13 and then the trial Court was required to make determination of the amount to be paid by the tenant. The learned Munsif has very specifically pointed out that since 011.1969 Babu Khan had not made payment of any rent. The learned Munsif has very specifically pointed out that since 011.1969 Babu Khan had not made payment of any rent. This suit was filed on 10.11.1970 but neither on the first date of hearing nor till the decision of the suit the defendant ever made the payment of any rent to the plaintiffs nor deposited the same in the Court nor submitted any application. The defendant did not take advantage even of Section 13-A as amended on 29.09.1975 by moving any application thereunder. The submissions on behalf of the appellant that decree for eviction could not have been passed for the rent having not been determined cannot be countenanced as it was the primary duty of the tenant under the said provisions to either deposit the entire amount on the first date of hearing or to raise the dispute by moving proper application. The tenant having failed to do so, the learned trial Court has not committed any error in passing the decree for eviction on the ground of default nor the first appellate Court has committed any error in affirming the same. 17. The only remaining question in this case suggested on behalf of the appellants is as to whether a decree on the ground of denial of title could have been passed without pleadings, issues and evidence in that regard? Such question also does not arise. Indisputably, the tenant Babu Khan has denied the title of the landlord, and has renounced his character as tenant and categorically asserted himself to be the owner of the property. Such a stand has already failed. The tenant having taken such a stand of asserting title in himself and having failed in the same, clearly looses the protection of law and could be ejected on this ground itself . It is not necessary to go through the rigmarole of pleadings and evidence when the ground of eviction, particularly that of denial of title and/or renouncing of character as tenant, is made out by the very case set up by the tenant. It is not necessary to go through the rigmarole of pleadings and evidence when the ground of eviction, particularly that of denial of title and/or renouncing of character as tenant, is made out by the very case set up by the tenant. Looking to the nature of this ground of eviction as contained in Section 13(1)(f) of the Act, even if the same is not pleaded and no specific issue is framed, if the parties went to the trial aware of case of each other and when no prejudice has been shown to have been caused to the tenant, this Court is clearly of opinion that the decree on the ground of denial of title has rightly been passed. Even otherwise, in the present case, the decree for eviction on the ground of default is sufficient so far ejectment of the tenant is concerned. 18. The obvious upshot of the discussion is that this appeal involves no substantial question of law and, therefore, deserves to be dismissed. However, in the last, learned Counsel for the appellants made a request for allowing them extra time to vacate the suit premises which is the only place of their residence as well as business. In the totality of facts and peculiarity of circumstances of the present case, it appears to be in the interest of justice that the appellants are provided with some extra time to vacate the suit premises. .19. Accordingly, this appeal fails and is dismissed. However, the appellants are granted time upto 312.2006 to vacate the suit premises on the following conditions: .(i) Theappellants shall personally submit an undertaking supported by an affidavit before the trial Court within three weeks from today to the effect that on or before 312.2006, they shall hand over peaceful and vacant possession of the suit premises to the plaintiff . They shall also undertake not to cause any damage to the suit premises nor to make any alteration and not to assign, sublet or in any manner part with possession to any other person of the suit premises and not to put the premises to any use other than the present use and not to cause any nuisance. They shall also undertake not to cause any damage to the suit premises nor to make any alteration and not to assign, sublet or in any manner part with possession to any other person of the suit premises 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 and of the decreetal amount and shall further pay to the landlord the amount for use and occupation of the suit premises at the rate of Rs. 23/-per month with effect from 01.08.2005 or deposit this amount in the bank account of the landlord (particulars whereof shall be furnished by landlord to the appellant within three weeks) month by month on or before 15th day of the next month. 20. It is made clear that upon the appellants failure to comply with any of the conditions aforesaid or violating any terms of the undertaking, the plaintiff shall be entitled to execute the decree forthwith in accordance with law. 21. There shall be no order as to costs.