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2012 DIGILAW 1183 (RAJ)

Ratni Devi v. Goruram

2012-05-09

PRASHANT KUMAR AGARWAL

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. This Civil Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 8.5.1996 passed by the District Judge, Jhunjhunu in Civil Regular Appeal No.8/1995 whereby the learned Appellate Court has upheld and affirmed the judgment and decree dated 15.2.1995 passed by the trial Court i.e. Civil Judge (Senior Division), Navalgarh in Civil Suit No.123/1983 whereby the trial Court dismissed the suit for eviction filed by the plaintiff-appellants. 3. The brief relevant facts for the disposal of this appeal are that plaintiff-landlord Shri Laduram and Shri Nand Kishore filed a suit for eviction and recovery of arrears of rent against the defendant-tenant Shri Goruram on the ground of default in payment of rent with the averment that the suit shop was let out to the respondent on 6.9.1980 at a monthly rent of Rs. 45/- and he has not paid the rent for the period from 1.8.1982 to 30.9.1983 i.e. for a period for more than six months. It was prayed that a decree for eviction and recovery of arrears of rent may be passed against the respondent. In the written statement filed by the respondent apart from other facts, it was averred that the suit shop vests in Thakur Ji Shri Laxmi Nath Ji and the appellant Shri Laduram is only a Pujari of that temple. It was also averred that Shri Laduram receives and collects rent from him as Pujari of the temple and he did not execute any rent note on 6.9.1980. It was also stated that as the suit shop vests in Thakur Ji Shri Laxmi Nath Ji and the temple is the owner of the suit shop, it is necessary party in the suit and without it the suit is not maintainable. The appellants filed an application for amendment in the plaint on the ground that the respondent has denied their title and that application was allowed by the trial Court vide order dated 13.9.1985 and in compliance of that order amended plaint was filed on 25.9.1985 incorporating a new para No.5-A to the effect that in the written statement filed by the respondent he has denied the title of the appellants and on that ground also he is liable to be evicted from the suit shop. Thereafter, the respondent filed an amended written statement incorporating therein not only reply to the new para No.5-A added in the amended plaint, but also many other facts were also incorporated without seeking amendment in the written statement. The appellants objected to the filing of such amended written statement and that objection was allowed by the trial Court vide order dated 8.8.1988 and it was ordered that limiting and confining to the extent of newly added para No.5-A of the plaint, the respondent may file an amended written statement, but in compliance of that order no further written statement was filed by the respondent. On the basis of pleadings of the parties, the trial Court framed following issues on 24.3.1987 : " 1- vk;k nqdku fooknkLin izfroknh us oknhx.k ls fdjk;s :0 45@& egkokj ij fdjk;s ys j[kh gS vkSj fdjk;kukek 6&9&80 fu"ikfnr fd;k\    ------------oknhx.k 2- vk;k izfroknh vknru fMQkYVj jgk gS rFkk 1&8&82 ls 30&9&83 rd fdjk;k vnk djus esa Hkh fMQkYV fd;k\    -------------oknhx.k 3- vk;k izfroknh vius tokc nkok fnukad 6&1&84 esa oknhx.k dks nqdku dk ekfyd gksus ls bUdkj fd;k gS\    -------------oknhx.k 4- vk;k izfroknh ds tqEes fdjk;s dh jkf'k :0 630@& ckdh gS\    -------------oknhx.k 5- lgk;rk\ " Both the parties adduced evidence and the learned trial Court after hearing the parties and appreciating and evaluating the evidence available on record vide judgment and decree dated 15.2.1995 dismissed the suit filed by the appellants. Under Issue No.1, it was found by the Court that the suit shop was let out by the appellants to the respondent at the monthly rent of Rs. 45/- and in this regard a rent note was executed on 6.9.1980. Thus, it was held by the trial Court that relationship of landlord and tenant exists between the parties. Under Issue No.3 regarding denial of title of the appellants, it was held by the learned trial Court that from the pleadings of the respondent, it cannot be said that the respondent has denied the title of the appellants. The Issue No.2 was also decided against the appellants and as a consequence of that the suit was dismissed. 4. Being dissatisfied, the appellant-landlord filed first appeal under Section 96 CPC before the District Judge, Jhunjhunu, which was registered as Civil Regular Appeal No.8/1995. The Issue No.2 was also decided against the appellants and as a consequence of that the suit was dismissed. 4. Being dissatisfied, the appellant-landlord filed first appeal under Section 96 CPC before the District Judge, Jhunjhunu, which was registered as Civil Regular Appeal No.8/1995. The learned Appellate Court by upholding and affirming all the findings arrived at by the trial Court dismissed the appeal vide judgment dated 8.5.1996. The findings given under Issue No.3 regarding denial of title of the appellants by the respondent were affirmed by the learned Appellate Court by saying that merely by reason of plea of vesting of title of the suit shop in the temple of Thakur Ji Shri Laxmi Nath Ji at the most it can be said that the plea regarding denial of title is bona fide and it cannot be said that it is a direct repudiation of landlord-ship of the appellants, as it is an admitted fact that the suit shop is situated adjacent to the temple. It was also said that in the written statement dated 6.1.1984 the respondent has only averred that the appellant Shri Laduram receives rent as a Pujari of the temple and the temple is a necessary party in the suit, and these averments cannot be said to be an explicit, unequivocal and categorical denial by the respondent. It was also noted by the learned First Appellate Court that in the amended written statement dated 31.10.1986 the plea of denial of title was not taken by the respondent. According to the learned First Appellate Court for a ground of eviction to be made out on the basis of denial of title of the landlord, the plea taken by the tenant has to be explicit, unequivocal and categorical whereas in the present case all these requirements are completely lacking. It was also held that for a ground to be made out on the basis of denial of title, it has to be "not bona fide" whereas in the present case the respondent has resiled from the plea taken by him in the original written statement. Still dissatisfied, the plaintiff-landlords are before this Court by way of this second appeal. 5. Still dissatisfied, the plaintiff-landlords are before this Court by way of this second appeal. 5. The appeal was admitted on 8.10.1996 on the following substantial questions of law : "(I) Whether the Courts below could not have taken into consideration and acted upon the amended written statement dated 31st October 1986 filed by the defendant specially when the same was refused to be taken on the record by the trial court vide order dated 8.8.1988 and that order became final ? (II) Whether the default in payment of rent during the pendency of appeal can be categorised as default on the part of defendant and if so, in the present case when this defendant had already committed, first default prior to file of the suit, then again non-payment of rent during the pendency of appeal amounts to second default ? (III) Whether the plea of title taken by the defendant in paras 1 and 2 and 12 of the written statement dated 6.1.984 where he has clearly and in unequivocal terms denied the title to the plaintiffs is sufficient to categorised denial of title of the plaintiffs to the suit premises and on that basis, the plaintiffs are entitled for decree of eviction under Section 13 (1) (f) of the Rajasthan Premises (Control of Rent Eviction) Act, 1950 ?" 6. Assailing the impugned judgment and decree, learned counsel for the plaintiff-appellants submitted that the learned First Appellate Court has wrongly and illegally held that the plea of denial of title taken by the defendant-respondent in his written statement do not tantamount as a plea of denial of title in the facts and circumstances of the case, whereas a bare perusal of the plea taken by the respondent more than once in the written statement clearly shows that the respondent without any reasonable cause knowingly, intentionally and specifically denied the title of the appellant-landlord in very clear, direct and unequivocal terms. It was further submitted that the learned Court below has illegally held that the plea of denial of title taken by the tenant has to be bona fide whereas there is no such legal requirement in Clause (f) of sub-section (1) of Section 13 of the Act that the tenant will suffer eviction on the ground of denial of title only when it is mala fide or "not bona fide". It was further submitted that whether certain averments made by the tenant amount to denial of title or not, is a question of law and the Court is competent to interfere in such finding even in a second appeal. It was also submitted that the learned First Appellate Court could not have taken into consideration and acted upon the amended written statement dated 31.10.1986 filed by the respondent as the same was disallowed by the learned trial Court to be taken on record vide order dated 8.8.1988 and in compliance of that order, no further amended written statement, confined to the newly added Para No.5-A of the amended plaint, was filed by the appellants. It was further submitted that only by the reason that the trial Court vide order dated 8.8.1988 permitted the respondent to file amended written statement, the original written statement dated 6.1.1984 cannot be said to be taken off from the record and the plea regarding denial of title taken by the respondent in that written statement cannot be considered. It was further submitted that the learned First Appellate Court was wrong in holding that the respondent has taken back the plea of denial of title and, therefore, the same is bona fide. In support of his submissions, the learned counsel for the respondent mainly relied upon the judgment dated 6.4.2012 passed by this Court in SB Civil Second Appeal No.197/1995 (Nand Kishore & Ors. v. Shri Niwas & Ors.) by saying that in almost similar facts and circumstances this Court has allowed the second appeal filed by the appellants against another tenant. 7. On the other hand, learned counsel for the respondent by supporting the impugned judgment and decree submitted that it is well settled that the denial of landlord's title by the tenant must be direct, clear and in unambiguous terms whereas in the present case the Courts below from the pleadings and evidence available on record have rightly concluded that the above legal requirement has not been fulfilled. It was further submitted that in the present case, the plea taken by the respondent in the written statement cannot be said to be denial of title, as it was never pleaded by the respondent that there is no relationship of landlord and tenant between the parties. It was further submitted that in the present case, the plea taken by the respondent in the written statement cannot be said to be denial of title, as it was never pleaded by the respondent that there is no relationship of landlord and tenant between the parties. According to the learned counsel mere averment of the fact that the appellant Laduram receives rent of the suit shop on behalf of the temple and the temple being the real owner of the suit shop is a necessary party in the suit and without its presence the suit is not maintainable, do not tantamount denial to title in a direct, clear and unambiguous terms. It was further submitted that during trial it was admitted by the respondent that the rent was paid to the appellants and, therefore, it cannot be said that the denial was mala fide or not bona fide. It was further submitted that a concurrent finding of fact regarding denial of title in favour of tenant does not raise a substantial question of law within the purview of Section 100 CPC and it cannot be interfered in this second appeal. 8. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the the relevant legal provisions and the case law. 9. In view of the submissions made on behalf of the respective parties following questions are to be considered and decided in this appeal:- "(i) Whether in considering a ground of eviction on the basis of denial of title of the landlord on the plea taken in the written statement, question of not bona fide or mala fide denial is relevant in the light of clause (f) of sub-section (1) of Section 13 of the Act? (ii) Whether a decree for eviction on the ground of denial of title of landlord can be passed only when it is found by the Court that the denial was not bona fide or mala fide? (iii) Whether in the present case, the denial of title made by the tenant in the written statement was not bona fide or was mala fide? (iv) Whether the denial of title by the tenant has to be explicit, unequivocal and categorical to obtain a decree for eviction? (iii) Whether in the present case, the denial of title made by the tenant in the written statement was not bona fide or was mala fide? (iv) Whether the denial of title by the tenant has to be explicit, unequivocal and categorical to obtain a decree for eviction? (v) Whether in the present case, the averments made in the written statement by the tenant do not amount to explicit, unequivocal and categorical denial of the landlord's title more particularly in view of the fact that during trial it has been admitted by the defendant that he is tenant of the plaintiffs and has always paid rent from time to time to them and before him his father was tenant of the plaintiffs and it has been held by the Court below that rent-note (Ex.1) was executed by the defendant?" 10. Clause (f) of sub-section (1) of Section 13 of the Act provides that a tenant shall be liable to be evicted from the tenanted premises if he has renounced his character as such or has denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant. 11. Section 116 of the Indian Evidence Act provides that: "No tenant of immovable property, or person through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." 12. It would be useful to consider the well settled legal position regarding ground of eviction on the basis of denial of landlord's title by the tenant which is as follows:- (1) Burden to prove forfeiture of tenancy lies on the landlord. (2) Even on inadvertent denial of landlord's title in pleadings may give rise to forfeiture because in such a case the forfeiture is by operation of law and not under any term or stipulation in the lease deed. (3) The denial or repudiation of landlord's title must be direct, clear, unequivocal, unambiguous, and in a unmistaken term. When the landlord's title is denied in writing (eg. (3) The denial or repudiation of landlord's title must be direct, clear, unequivocal, unambiguous, and in a unmistaken term. When the landlord's title is denied in writing (eg. by notice or reply to a notice or in written statement or in additional written statement etc.), the writing should be construed as a whole without giving undue emphasis to one or the other part of it. (4) Whether certain averments made by the tenant amount to denial of title or not, is a question of law and the Court is competent to interfere in such finding even in a second appeal. (5) The tenant is not estopped from denying rather he is entitled to deny or question the title of the landlord if it comes to an end subsequent to the creation of the tenancy and also the derivative title of a transferee of the landlord. Similarly, the tenant may in good faith and for his own protection put the transferee of the landlord to strict proof of his title to the demised property. 13. So far as the denial has to be "not bona fide" or mala fide is concerned, unlike many other Rent Control Acts like as applicable in the States of Andhra Pradesh and Tamilnadu which provide that the denial of title of the landlord by the tenant must be "not bona fide", clause (f) of sub-section (1) of Section 13 of the Act does not provide for such an additional condition to be proved if a tenant is to suffer eviction on the ground that he has denied the title of the landlord. There are no such words in the provision that the denial made by the tenant must be "not bona fide" or mala fide. In absence of such legislative command, landlord cannot be directed to prove that the denial made by the tenant was "not bona fide" or was mala fide also. In order to make the tenant liable for eviction, it is sufficient for the landlord to show that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant. The provision does not postulate that the title must be denied to its full extent and it is sufficient if the title has been denied partially. 14. The provision does not postulate that the title must be denied to its full extent and it is sufficient if the title has been denied partially. 14. It is well settled principle of law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stipulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. 15. Even if for the sake of arguments, it is admitted that the denial of title has to be "not bona fide" or mala fide, all the surrounding circumstances under which the assertion was made by the tenant shall have to be seen to answer the question whether an assertion of denial of title by the tenant was bona fide or not. "Not bona fide" would mean absence of good faith or non-genuineness of the tenant's plea. If the denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be "not bona fide". Therefore, to answer the question whether an assertion of denial of landlord's title by the tenant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen. 16. Therefore, to answer the question whether an assertion of denial of landlord's title by the tenant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen. 16. If in the light of prevalent well settled legal position facts of the present case are considered, it is clear that the denial made by the respondent was direct, clear, unequivocal, unambiguous and also it was not bona fide, but was with a mala fide intention. In the original plaint, it was specifically averred by the appellants that the suit shop is in the tenancy of the respondent for several years and the last rent note was executed on 6.9.1980 at a monthly rent of Rs. 45/-. It was further averred that the respondent has committed default in payment of rent several times and the appellants were compelled to file suits for recovery of rent from time to time and, therefore, the respondent is a habitual defaulter in payment of rent and he is not entitled to obtain benefit of default from payment of rent. It was further averred that at present also rent from 1.8.1982 is due against the respondent and, therefore, he has further committed default in payment of rent. In the written statement dated 6.1.1984 in para No.1, it was averred by the respondent that the suit shop vests in temple of Thakur Ji Shri Laxmi Nath Ji whereas the appellant Shri Laduram is Pujari of the temple and he only manages the affairs of the temple. In Para No.2 of the written statement, it was again stated that suit shop belongs to the temple and appellant Shri Laduram receives rent only as a Pujari of the temple and he did not execute any rent note on 6.9.1980. It was further averred that in the year 1982, the respondent executed a rent note regarding a 'Gubariya' situated adjacent to the suit shop at a monthly rent of Rs. 10/- in favour of appellant Shri Laduram. In Para No.3, it was submitted that he intended to pay rent of the suit shop to appellant Shri Laduram several times, but he refused to issue rent receipts. 10/- in favour of appellant Shri Laduram. In Para No.3, it was submitted that he intended to pay rent of the suit shop to appellant Shri Laduram several times, but he refused to issue rent receipts. In Para No.12 of the written statement, it was again averred that the suit shop belongs to the temple and it is a necessary party in the suit and in absence of it the suit is not maintainable. In his examination-in-chief itself the respondent admitted that the suit ship is in his tenancy from appellants and he is paying Rs. 45/- per month as rent to them, but no rent is due against him. He has further said that he never denied the title of the appellants. It was further admitted by him that all nine shops situated adjacent to the temple are of the appellants and they receive rent. In his cross-examination, the respondent said that the suit shop is in his tenancy for last 41 years and previously also the appellant Laduram filed a suit against him for eviction in which compromise was arrived between them. The respondent could not deny the fact that on 6.9.1980 a rent note was executed by him, but he admitted his signature upon it. In his further cross-examination, the respondent denied that in the written statement dated 6.1.1984 the plea regarding denial of title was taken by him.Thus, the respondent not only denied the relationship of landlord and tenant between the parties, but also it was specifically said by him that the owner-ship of the suit shop vests in the temple and his landlord is temple and the appellant Laduram receives rent as Pujari on behalf of the temple. As already said under Issue No.1, it has been held that relationship of landlord and tenant exists between the parties and the respondent executed rent note (Ex.1) dated 6.9.1980 in favour of the appellants. The finding of the learned trial Court has been upheld and affirmed by the learned First Appellate court also. In his statement also the respondent has admitted that the suit shop is in his tenancy from the appellants and he has always paid rent to them. The finding of the learned trial Court has been upheld and affirmed by the learned First Appellate court also. In his statement also the respondent has admitted that the suit shop is in his tenancy from the appellants and he has always paid rent to them. I am of the considered view that when during trial the respondent has admitted that the suit shop was taken by him on rent from the appellants and he has always paid rent to them, the assertion made or plea taken by him in the written statement dated 6.1.1984 to the effect that the suit shop vests in the temple and appellant Shri Laduram is receiving rent from him as Pujari on behalf of the temple and the temple is a necessary party in the suit, as the suit shop belongs to it, cannot be said to be bona fide or not mala fide. In the present case, the respondent failed to produce any evidence even prima faice indicating that the ownership of the suit shop originally vested in the temple or at present it vests in the temple or any rent note was ever executed in favour of it or rent was paid to it or to the appellant on behalf of the temple. Merely because the suit shop is situated adjacent to the temple, it cannot be said that by that reason the respondent bona fidely stated that the suit shop vests in the temple and the appellants are not landlord of it. Similarly, it is very much clear that the denial or repudiation made by the respondent in the written statement is direct, clear, unequivocal, unambiguous and in an unmistaken term. As already has been said, such assertion was made in the written statement more than once. It is not the case of the respondent that the original landlord was temple and the suit shop was transferred to the appellants, but he was not having any notice of that fact and in good faith and for his own protection in the written statement denied the title of the appellants. It is not the case of the respondent that the original landlord was temple and the suit shop was transferred to the appellants, but he was not having any notice of that fact and in good faith and for his own protection in the written statement denied the title of the appellants. The learned First Appellate Court has also went wrong to hold that amended written statement was filed by the respondent in which the plea of denial of title was not taken, and it was explained by him in what circumstances the plea of denial of title was taken by him in the original written statement and, therefore, that plea of denial of title cannot be taken into consideration. As already said, the learned trial Court vide order dated 8.8.1988 held that the amended written statement filed by the respondent cannot be taken on record as in it some pleas have been incorporated without the permission of the Court and it was directed that a new written statement confining to the new para No.5-A added in the plaint can be filed, but no such further written statement was filed and, therefore, in my view the pleas taken in the written statement so filed could not have been taken into consideration by the learned First Appellate court. If for the sake of arguments, it is admitted that the amended written statement filed by the respondent could have been taken on record limiting it to the pleas taken in it to the extent of newly added para No.5-A of the amended plaint, even then it does not mean that the original written statement filed by the respondent was taken off from the record and pleas taken therein could not be considered by the Court for arriving a finding whether the respondent has denied the title of the appellants or not. I am of the view that only by the reason that amended written statement to the amended plaint has been filed by the respondent, it does not mean that the original written statement has completely wiped out. The learned First Appellate Court without considering the matter in a right perspective has wrongly held that the denial of title made by the respondent is bona fide and the assertion made in the written statement cannot be said to be explicit, unequivocal and categorical. The learned First Appellate Court without considering the matter in a right perspective has wrongly held that the denial of title made by the respondent is bona fide and the assertion made in the written statement cannot be said to be explicit, unequivocal and categorical. In view of the legal position whether certain averments made by the tenant tantamount to denial of title or not, is a question of law and the Court is competent to interfere in such a finding even in a second appeal, I am of the considered opinion that it is fit case in which the finding given under Issue No.3 by the Courts below regarding denial of title of the landlord by the tenant has to be interfered and set aside in the light of discussion made above. I hold that the appeal is liable to be allowed and the judgment and decree of both the Courts below are required to be set aside and the suit filed by the plaintiff-appellants for eviction of the defendant-respondent from the suit shop on the ground of denial of title has to be decreed. It is pertinent that during the course of hearing, learned counsel for the appellants did not press the substantial question of law No.2 framed by this Court and, therefore, that question is not being considered by this Court.ORDERConsequently, the Civil Second Appeal is allowed and the judgment and decree dated 8.5.1996 passed by the District Judge, Jhunjhunu in Civil Regular Appeal No.8/1995 and the judgment and decree dated 15.2.1995 passed by the trial Court i.e. Civil Judge (Senior Division), Navalgarh are set aside and the Civil Suit No.123/1983 filed by the plaintiff-appellants is decreed with costs throughout. The defendant-respondent is allowed two months time to vacate the suit-shop and to handover peaceful possession of it to the plaintiff-appellants.Second Appeal Allowed - Suit Decreed. *******