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2007 DIGILAW 1891 (PNJ)

Ashok Kumar v. Moti Ram

2007-10-19

VINOD K.SHARMA

body2007
Judgment Vinod K.Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 12.4.1994 passed by the learned Additional District Judge, Jind, in Civil Appeal No. 240 of 20.10.1993, vide which while reversing the judgment and decree dated 31.8.1993 passed by the learned trial Court, suit filed by the plaintiff-appellant herein was ordered to be dismissed. 2. The appellant-plaintiffs filed a suit for permanent injunction alleging that Ashok Kumar was a partner of M/s. Kali Ram Suresh Kumar, Safidon, and in the said firm, the other partners were Satish Kumar and Veena Gupta, who retired from the said firm on 31st March, 1984. As a result of the said withdrawal, the firm stood dissolved and Ashok Kumar alone took all the assets and liabilities of the said firm and thereafter constituted a new partnership firm under the name and style of M/s. Kali Ram Ashok Kumar after inducting Naresh Kumar and Bimla Devi as its new partners on 2.4.1984. The said new firm was registered with the Registrar of Firms, Haryana, Chandigarh. 3. M/s. Kali Ram Suresh Kumar, Safidon, took the shop bearing No. 102 situated in Ward No. 10, Grain Market, Safidon, on rent from Moti Ram, Prem Chand and Smt. Kailash Devi, widow of Kali Ram, on annual rent of Rs. 900/- (Rs. nine hundred). Moti Ram was said to be owner of 1/4th share in the said shop and Chalti Devi had half share and Smt. Kailash Devi was the owner of the remaining 1/4th share. 4. It was the case of the plaintiffs that they used to pay a sum of Rs. 675/- annually as rent to Moti Ram including share of Chalti Devi, as Moti Ram was her Mukhtiar-e-am and the remaining amount of Rs. 225/- used to be paid to Smt. Kailash Devi. Subsequently Sarvshri Moti Ram and Prem Chand became owners of the entire shop in a partition suit and therefore, they started giving threats of forcible dispossession of the appellant-plaintiffs without resorting to the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the `Act). 5. 225/- used to be paid to Smt. Kailash Devi. Subsequently Sarvshri Moti Ram and Prem Chand became owners of the entire shop in a partition suit and therefore, they started giving threats of forcible dispossession of the appellant-plaintiffs without resorting to the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the `Act). 5. The suit was contested by raising a preliminary plea that the suit filed by the plaintiffs was mala fide, as Ashok Kumar, plaintiff, is son of Kailash Devi, who had 1/4th share in the shop in dispute and the said 1/4th share was purchased by her from its previous owners-Shri Banarsi Dass and his widow, who had purchased the said share from Indrawati, Rajinder Parshad and Sheela Devi. It was claimed that 3/4th share of the shop was mortgaged by Sarvshri Moti Ram and Prem Chand, defendants, with Giani Ram, who let out the shop in dispute to Banarsi Dass and his wife. The said Banarsi Dass and his wife later on purchased the share of Indrawati, Rajinder Parshad and Sheela Devi and occupied the suit premises as co-owners. Smt. Kailash Devi died and after her demise, her progeny i.e. six sons and two daughters became owners of 1/4th share being heirs of Smt. Kailash Devi and, therefore, the shop in dispute was being occupied by Ashok Kumar, as co-owner along with his brothers and sisters. The shop in dispute was sold in open auction through the Court and the bidders were the co-owners and Sarvshri Moti Ram and Prem Chand being the co-owners purchased the same for a sale consideration of Rs. 1,70,000/- (Rs. one lacs seventy thousand), out of which, a sum of Rs. 42,500/- (Rs. forty two thousand five hundred) being 1/4th share was deposited in the Court for disbursement to the co-owners and therefore, the defendant-respondents became full owners of the shop in dispute and thereby entitled to take possession of the same. It was denied that the shop in dispute was ever let out to the plaintiff-appellants herein. 6. On the pleadings of the parties, following issues were framed :- "1. Whether M/s. Kali Ram Ashok Kumar is a registered partnership firm with Ashok Kumar as its partner ? OPP 2. It was denied that the shop in dispute was ever let out to the plaintiff-appellants herein. 6. On the pleadings of the parties, following issues were framed :- "1. Whether M/s. Kali Ram Ashok Kumar is a registered partnership firm with Ashok Kumar as its partner ? OPP 2. Whether the plaintiffs occupied the premises in dispute as tenants and as such the possession of the plaintiffs over the premises is in the capacity of a tenant ? OPP 3. In case the issue No. 2 is proved, whether the plaintiffs can only be evicted under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 and no other proceedings ? OPP 4. Whether the plaintiffs are entitled to the injunctions as prayed for ? OPP 5. Relief." 7. The learned trial Court answered issue Nos. 1 to 4 in favour of the appellant-plaintiffs and resultantly the suit filed by them was decreed whereby the defendant-respondents were restrained from dispossessing the appellant-plaintiffs from the premises in dispute otherwise, than in due course of law on the grounds provided under the Act. 8. In appeal before the learned Additional District Judge, findings on issue No. 1 were challenged by the defendant-respondents primarily on the ground that the receipts Exhibits P-1 to P-3 said to have been executed by Moti Ram, one of the appellant-defendants, could not be said to be rent receipts on the plea that the payment of amount of Rs. 1,687.50 in a span of more than five months, though the annual rent of the shop was Rs. 900/- out of which 3/4th amount was payable to Moti Ra, defendant, could not be believed. 9. It was further the contention that even if Exhibits P-1 to P-3 are taken to be receipts, it does not automatically establish a relationship of landlord and tenant and it would prove only permissible occupation and in support of this contention, reliance was placed on the judgment of the Honble Supreme Court in the case of Sheodhari Rai and others v. Suraj Parshad, AIR 1954 SC 758. 10. It was also the contention that in the suit filed, no mention was made about the date as to when M/s. Kali Ram Suresh Kumar was inducted as a tenant. 10. It was also the contention that in the suit filed, no mention was made about the date as to when M/s. Kali Ram Suresh Kumar was inducted as a tenant. It was also the case of the respondents that when Ashok Kumar appeared in the Court, he could not substantiate his claim except by relying upon the Bahi entries to show that the rent was being paid to Moti Ram. 11. The learned lower Appellate Court came to the conclusion that Bahi entries would not go to show that the plaintiff firm was inducted as a tenant by Moti Ram and Chalti Devi. The possession of the shop in dispute might have been given to the plaintiff-appellants by Kailash Devi, mother of Ashok Kumar, respondent, who had taken possession of the shop from the mortgagee in the year 1981. The learned lower Appellate Court also disbelieved Exhibits P-2 to P-3 to be rent receipts showing the payment of rent. 12. The learned lower Appellate Court, on the basis of the evidence on record, held that in the present case, the plaintiff-appellants have not alleged as to on which date they were inducted as tenant by the respondents herein and Kailash Devi, mother of Ashok Kumar and therefore, came to the conclusion that in the absence of any contract either express or implied and mere use of the word "rent" in the receipts could not create relationship of landlord and tenant. However, the plea of the defendant-respondents that there was merger of tenancy rights of the plaintiff-appellants with their ownership right was rejected. However, by holding that the possession of the appellant-plaintiffs was permissible and not that of tenant, the finding on issue No. 2 was reversed and consequently, the judgment and decree passed by the learned trial Court was set aside and the suit filed by the plaintiff-appellants was ordered to be dismissed. 13. Mr. M.L. Sarin, learned senior counsel appearing on behalf of the appellants claimed that the following substantial questions of law arise for consideration in this appeal :- "1. Whether the lower Appellate Court was wrong in holding that the three documents i.e. Ex. P-1 to P-3 admittedly executed by the defendant-respondent, Moti Ram, cannot be taken as receipts of rent, after having received the said amounts as rent from the plaintiff-appellant ? 2. Whether the lower Appellate Court was wrong in holding that the three documents i.e. Ex. P-1 to P-3 admittedly executed by the defendant-respondent, Moti Ram, cannot be taken as receipts of rent, after having received the said amounts as rent from the plaintiff-appellant ? 2. Whether the findings of the lower Appellate court on issue No. 2 are completely untenable and contrary to the pleadings of the parties and the evidence on the record ? 3. Whether the lower Appellate Court has misread the oral as well as documentary evidence i.e. statements of the witnesses, Bahi entries (Exhibits P-12 to P-23), House Tax receipts etc. which go to prove that the plaintiff- appellants were in possession of the suit premises as tenants and were paying rent for the same to the defendant-respondents ? 4. Whether the lower Appellate Court has erred in ignoring the categoric statement of PW-5, Clerk, Income Tax Department, who has deposed on the basis of official record that the income tax return of the appellant-plaintiffs contains entries of payment of rent by the appellant-plaintiffs to the respondent-defendants clearly establishing a landlord-tenant relationship ? 5. Whether the findings of the lower Appellate Court on issue Nos. 3 and 4 are wholly contrary to the extensive and cogent evidence on the record which proves that the plaintiff-firm is in fact a tenant in possession of the suit premises and therefore, can only be evicted under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 ? 6. Whether the lower Appellate Court has wrongly applied the doctrine of merger in the facts and circumstances of the present case when it had been held in the detailed findings of the learned trial Court that the plaintiff- appellants possession over the suit premises is in the capacity of a tenant and not that of a co-owner ? 7. Whether the lower Appellate Court has ignored the catena of case law cited by the counsel for the plaintiff-appellant thereby passing an order illegally and without jurisdiction. 8. Whether the judgment and decree of the lower Appellate Court is liable to be reversed being perverse ? 9. 7. Whether the lower Appellate Court has ignored the catena of case law cited by the counsel for the plaintiff-appellant thereby passing an order illegally and without jurisdiction. 8. Whether the judgment and decree of the lower Appellate Court is liable to be reversed being perverse ? 9. Whether the lower Appellate Court was legally justified in reversing the detailed and well considered judgment and decree of the learned trial Court without dealing with all the reasons given therein ?" Learned senior counsel appearing on behalf of the appellants in support of the substantial questions of law raised above contended that the relationship of landlord and tenant between the parties stood proved on the basis of documentary evidence produced on record by way of receipts Exhibits P-1 to P- 3. Learned senior counsel by relying on the Bahi entries Exhibits P-12 to P-23 contended that as these entries were maintained in normal course of business, the same were admissible in evidence. The contention of the learned senior counsel, therefore, was that the learned lower Appellate Court was not justified in reversing the findings of the learned trial Court on issue No. 2 in view of the voluminous documentary evidence brought on record. Learned senior counsel for the appellants also referred to the statement of DW-1 Moti Ram, in which he had admitted his signatures on the documents Exhibit P-1 to P-3. It was further contended by the learned senior counsel for the appellants that the payment of rent is duly depicted in the income tax returns. The contention of the learned senior counsel, therefore, was that the findings recorded by the learned lower Appellate Court were perverse and are outcome of misreading of the evidence placed on record. Learned senior counsel also contended that once it was proved on record that Moti Ram, one of the co-owners of the property, was receiving the rent, the tenancy, therefore, stood proved as one of the co-owners can create lease in favour of other co-owner. In support of this contention, he placed reliance on the judgment of the Honble Supreme Court in the case of Life Insurance Corporation v. M/s. India Automobiles and Co. and others, 1990(2) RCR 344, wherein in paras 11 and 12, it has been observed as under :- "11. In support of this contention, he placed reliance on the judgment of the Honble Supreme Court in the case of Life Insurance Corporation v. M/s. India Automobiles and Co. and others, 1990(2) RCR 344, wherein in paras 11 and 12, it has been observed as under :- "11. So far as the first question is concerned, we have no doubt that the Division Bench of the High Court has come to the correct conclusion. In our view, the conclusion of the learned Single that the lease Ex. P-1 executed by the co-owners of the property in favour of one of them was invalid, was erroneous. Section 5 of the Transfer of Property Act, 1882 clearly envisages transfer of property by a person to "one or more living persons or to himself, or to himself and one or more other living persons." Whatever may be the position, in spite of this provision in respect of a purported transfer by a person to himself alone (which is very often the position in the case of trusts which was considered by the House of Lords in Rye v. Rye, 1962 AC 496, there is no reason to hold that a contract between a person with himself and others is invalid. The Division Bench, we think, has rightly distinguished the decisions in Girish Chandra v. Srinath, 3 CLJ 141, and Rye v. Rye, 1962 AC 496. The observations of Lord Denning extracted by the learned Judges are quite apposite to the situation in the present case. 12. Once this objection is out of way, the question is whether the constructions put upon the leased land by the lessees formed part of the property conveyed to the LIC. Sri Parasaran pointed out that they did not draw our attention to subsequent correspondence between the parties to show that even the LIC had not claimed at any stage any rent was in respect of the superstructures (apart from the contractual rent which was in respect of land) and the both parties have all along been proceeding on the footing that the superstructure on item belonged to the lessees. This appears to be correct but it cannot be conclusive of the rights of the parties. We have therefore gone carefully into the terms of Ex. P-1 and Ex. P-3. They clearly make out that the superstructures put up by the lessee under Ex. This appears to be correct but it cannot be conclusive of the rights of the parties. We have therefore gone carefully into the terms of Ex. P-1 and Ex. P-3. They clearly make out that the superstructures put up by the lessee under Ex. P-1 were not included in the property conveyed under the terms of Ex. P-3 and that, whatever, may be the rights of the LIC to evict the tenant with liberty to demolish the superstructure so long as the lease subsisted. We, therefore, answer the first question posed by us in the affirmative." It was further contended by the learned senior counsel for the appellants that the learned lower Appellate Court was wrong in coming to the conclusion that there was merger of tenancy in the ownership, because of the status of Ashok Kumar being co-owner after the death of Smt. Kailash Devi and in support of this contention, he placed reliance on the judgment of the Honble Supreme Court in the case of Pramod Kumar Jaiswal and others v. Bibi Hussan Bano and others, 2005(2) RCR(Civil) 629 : 2005(1) RCR(Rent) 570 : 2005(5) SCC 492. However, this contentions of the learned senior counsel is liable to be ignored, as the learned lower Appellate Court did not accept the plea of merger by specifically observing that the plea of Moti Ram and Prem Chand that there was merger of tenancy rights of the appellants with their ownership right cannot be accepted and in coming to this conclusion, the learned lower Appellate Court placed reliance on the judgment of this Court in the case of Takhat Singh v. Prem and another, AIR 1973 (P&H) 204 and M/s. Gian Chand Sham Lal v. M/s. Rattan Lal Krishan Kumar, 1963 CLJ 377. Mr. S.K. Garg, learned counsel appearing on behalf of the respondents, on the other hand, contended that appellant-plaintiff Ashok Kumar is son of Smt. Kailash Devi, who owned 1/4th share in the shop in dispute. The said 1/4th share was purchased by Smt. Kailash Devi from its previous owners Banarsi Dass and his wife, who had purchased the said share from Indrawati, Rajinder Parshad and Sheela Devi. Out of the said shop, 3/4th share was mortgaged by the defendants with Giani Ram and the said Giani Ram had let out the said share to Banarsi Dass and his wife. Out of the said shop, 3/4th share was mortgaged by the defendants with Giani Ram and the said Giani Ram had let out the said share to Banarsi Dass and his wife. Later on, Banarsi Dass and his wife purchased the share of Indrawati, Rajinder Parshad and Sheela Devi and occupied the shop as co-owners and not as tenants. Thereafter Banarsi Dass and his wife sold their share to Smt. Kailash Devi, who has since died and after her death, her sons and daughters are the owners of 1/4th share being legal heirs. The plaintiff-appellant Ashok Kumar, who is son of Kailash Devi after her death occupied the shop as a co-sharer along with his brothers and sisters cannot be a tenant. It was further argued by the learned counsel that the defendant- respondents being owners of 3/4th share have purchased the shares of his brothers and sisters, who are legal heirs of Smt. Kailash Devi and, thus, they being owners of entire shop, were entitled to seek the possession in execution of the final decree of partition. 14. Learned counsel for the respondents made reference to receipts Exhibits P-1 to P-3 to contend that Exhibit P-1 is dated 16.8.1982, whereas Exhibit P-2 is dated 2.3.1992 and Exhibit P-3 is dated 27.5.1992. Out of these receipts, two receipts are towards advancement of loan with the stipulation that if the same is returned, then the amount would be adjusted against the payment of advance rent, whereas 3rd receipt mentions about the payment of rent, but the same was said be not due and, therefore, the contention of the learned counsel for the respondents was that these receipts could not be treated to create tenancy. 15. It was also the contention of the learned counsel for the respondents that in fact the suit was filed mala fide with an attempt to hold on to the property after the final decree has been passed. He placed reliance on the judgment of the Honble Supreme Court in Sheodhari Rai and others case (supra) to contend that mere payment of rent did not necessarily establish the relationship of landlord and tenant. Such payment may prove permissive occupation not amounting to any right or title to possession. Para 5 of the said judgment reads as under :- "The plaintiffs appealed. Such payment may prove permissive occupation not amounting to any right or title to possession. Para 5 of the said judgment reads as under :- "The plaintiffs appealed. The High Court pointed out, quite correctly we think, that it was not right for the trial Court to make out a new case for the defendants first party with respect to the heirs of Gobind Rai and Kari Rai, which was not only made in their written statement but was wholly inconsistent with the title set up by the defendants. The High Court found that the fact of payment of rent by the defendants first party to the superior (Ex. E. series) produced by the defendants first party from their own custody was quite consistent with their having permissive occupation of the lands under an amicable arrangement with the defendants second party without there being any relationship of landlord and tenant between the two sets of defendants. The High Court found support for this conclusion in the evidence of Jagarnath Rai defendant No. 2 himself, relevant parts of which are quoted in the High Court judgment. The High Court found support for this conclusion in the evidence of Jagarnath Rai defendant No. 2 himself, relevant parts of which are quoted in the High Court judgment. On a review of the evidence on record the High Court came to the following conclusion : "In the ultimate analysis the position reduces itself to this : (1) that settlement of the disputed lands with the defendants first party in Shikmi has not been established; (2) nor has it been established that they have ever paid any rent as Shikmidars in respect of the disputed lands; (3) that as kinsmen of the defendants second party, they were cultivating the lands and paying rents payable in respect of them to the proprietors by virtue of an arrangement for permissive occupation; (4) that any relationship of landlord and tenant was never contemplated between them; (5) that the contesting defendants do not set up a case of right by adverse possession; (6) that even if assumed that they do set it up, they cannot have it because the rent receipts produced by them would go to show that they have been acknowledging the title of the defendants second party till within 12 years of the institution of the suit; (7) that it was not open to the trial Court to make a case which was not set up by the parties; and (8) that it is clear that the defendants have not been able to prove any title or right to possession in themselves in respect of the lands in suit so as to be able to successfully resist the plaintiffs claim for declaration of title and recovery of possession." 16. Reliance was also placed by the learned counsel for the respondents on the judgment of the Honble Supreme Court in the case of Harshvardhan Chokkani v. Bhupendra N. Patel, 2002(1) RCR(Rent) 349, wherein the Honble Supreme Court has been pleased to lay down as under :- "6. It is clear that the question who the tenant of the premises is, has been in issue and has fallen for consideration at all the stages of the case. Therefore, the High Court is not correct in proceeding on the assumption that the point was not put in issue. It is clear that the question who the tenant of the premises is, has been in issue and has fallen for consideration at all the stages of the case. Therefore, the High Court is not correct in proceeding on the assumption that the point was not put in issue. In regard to the terms of the rental agreement between the appellant and the erstwhile landlady, it is true that the appellant was permitted to carry on business of a partnership consisting of himself and members of his family but there exists a clear distinction between an individual tenant carrying on a business of partnership in the premises. Granting permission to the appellant to carry on partnership business does not per se foreclose the question whether the partnership firm is the tenant of the premises. It is true that by mere paying the rent, a person does not become the tenant and that fact, without anything more, will not be the determinative factor to hold that the payer of the rent is the tenant because more often than not an agent, a servant or a family member of the tenant also pays the rent for the tenant. Even before the purchase the premises by the respondents the firm was paying the rent to their vendor; receipts for the rent were being issued in favour of the firm by her. By the conduct of the parties - the firm and the vendor of the respondents - the firm had already become the tenant of the premises before purchase of the said building. This fact explains as to why the attornment of tenancy of the firm and not of the appellant was made in favour of the respondents. Even after the purchase of the premises by the respondents, they continued to receive the rent of the premises regularly from and issue receipt in favour of the firm. It was nobodys case that the firm was the sub-tenant as such not filing eviction petition on the ground of sub-letting is an extraneous factor." 17. On a consideration of the matter, I find that the only substantial question of law which arises for consideration in this case is : "whether the plaintiff-appellants were able to prove their tenancy rights over the property, thus, entitling them to seek injunction against their dispossession except by resorting to the provisions under the Rent Act." 18. On a consideration of the matter, I find that the only substantial question of law which arises for consideration in this case is : "whether the plaintiff-appellants were able to prove their tenancy rights over the property, thus, entitling them to seek injunction against their dispossession except by resorting to the provisions under the Rent Act." 18. I find that the substantial question of law raised deserves to be answered in favour of the appellant-plaintiffs. The appellant-plaintiffs by way of documentary evidence produced on record had clearly proved the payment of rent to the respondent-Moti Ram and execution of the receipts was duly admitted by the respondent-Moti Ram while appearing in the witness box as DW-1. It was not only the receipts Exhibits P-1 to P-3, but Bahi entries were also produced on record showing the payment of rent of the demised premises and the payment of rent was duly depicted in the Income Tax Return filed by the plaintiff firm. 19. In this view of the matter, the learned trial Court was justified in holding that there existed a relationship of landlord and tenant between the parties and, therefore, the plaintiff-appellants could be dispossessed only by resorting to the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973. 20. The learned lower Appellate Court was not justified in reversing the findings by merely observing that mere payment of rent would not create tenancy. Though the fact that mere payment of rent does not constitute the tenancy cannot be disputed, but in the present case, after the defendant- respondent Moti Ram had admitted the execution of the receipts, it was for him to explain as why the money was accepted and agreed to be adjusted towards the payment of rent. Besides this, there was other evidence on record showing the plaintiff-firm to be a tenant under Moti Ram. Creation of tenancy by one of the co-owners is to be treated as validly created tenancy in view of the law laid down by the Honble Supreme Court in the case of Life Insurance Corporation of India (supra). Thus, the findings of the learned lower Appellate Court on issue No. 2, which are outcome of misreading of evidence, are held as perverse and the substantial question of law, as raised above, is answered in favour of the appellant-plaintiffs. Thus, the findings of the learned lower Appellate Court on issue No. 2, which are outcome of misreading of evidence, are held as perverse and the substantial question of law, as raised above, is answered in favour of the appellant-plaintiffs. Consequently, this appeal is allowed and the judgment and decree passed by the learned lower Appellate Court is set aside and that of the learned trial Court is restored, but with no order as to costs.