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2012 DIGILAW 1217 (ALL)

Kishori Raman Shiksha Samiti v. Ashok Chaturvedi

2012-05-21

MANOJ MISRA

body2012
Hon'ble Manoj Misra,J. Heard Sri Anil Kumar Bajpai, learned counsel for the appellant and Ashwani Kumar Mishra along with Sri Anubhav Chandra for the respondent. 2. This is defendant's appeal against the judgment and decree dated 01.03.2012 passed by the Additional District Judge, Room No.9, Mathura in Civil Appeal No.82 of 2011 arising out of Original Suit No.55 of 2006. 3. Original Suit No.55 of 2006 was instituted for possession after eviction of the defendants as also for arrears of rent and for damages for use and occupation together with costs. 4. Plaintiff's case was that his father Sri Kundan Lal and another member of his family namely, Natthi, separately, by two registered lease deeds dated 10.9.1936 and 31.3.1941 had given on rent the land in dispute to the defendant no.2 (Kishori Raman Inter College, Mathura) through its Manager Sri Dwarika Das. Under each agreement, the lessee was required to pay rent at the rate of Rs.50/- per annum that is, Rs.100 per annum for the entire demised premises under the two agreements. The rent was payable by the month of March of each year. In the agreements it was provided that if the lessee commits default in payment of rent for three consecutive years then the lessor would have right to evict the lessee. It was claimed that through succession, decree of the court, and eventual family settlement between the plaintiff and his brother, the property in question came to the share of the plaintiff. The plaintiff claimed that the defendant failed to pay rent with effect from 1.4.1995, accordingly, under the terms of the agreements the plaintiff was entitled to forfeit the lease and obtain possession of the demised premises. Consequently, the plaintiff served a registered notice dated 12.7.2005 whereby the tenancy was terminated by a six months notice, but since possession was not delivered, the suit was necessitated. 5. Defendants contested the suit, inter alia, on the grounds that the suit was not maintainable at the instance of one co-owner; that the defendants were not defaulter, as the lessors on account of their inter se dispute have not accepted the rent in spite of offer by the defendants; that there was no notice determining tenancy or for forfeiture of lease; and that they were entitled to protection against eviction under the provisions of section 114 of the Transfer of Property Act. 6. 6. The trial court decreed the suit of the plaintiff holding that the plaintiff was the owner; that the lessee was a defaulter and had not paid/tendered rent since 1995; that the notice was sent to the defendants by registered post which would be deemed to have been served; and that the conduct of the lessee had been such that he was not entitled to the protection under section 114 of the Transfer of Property Act. 7. Aggrieved by the judgment and decree of the trial court, the defendants went up in appeal. Before the lower appellate court, as would appear from its judgment, only two points were canvassed: (a) that the suit at the instance of one co-owner alone was not maintainable; and (b) that the defendants were entitled to the protection against eviction under the provisions of section 114 of the Transfer of Property Act. 8. The lower appellate court held that the plaintiff was a co-owner, if not the sole owner, and that a suit for eviction at the instance of one co-owner was maintainable as was held by this court in its decision in the case of Giriraj Kishore v. Trilokinath Vimal AIR 1988 Allahabad 305. While considering the entitlement to the benefit under section 114 of the Transfer of Property Act, the lower appellate court found: (a) that the defendants were defaulter since 1995 and that they could not prove that they made any effort to deposit or even tender the rent for over a decade; (b) the challan with respect to the deposit only disclosed that the rent up to March 2006 was deposited without disclosing the starting point of the period for which it was deposited; (c) that the suit was contested on various frivolous pleas; and (d) that in spite of service of notice under section 106 of the Transfer of Property Act no rent was paid. Taking all these circumstances into consideration the court below took the view that the defendants were not entitled to the discretionary relief under section 114 of the Transfer of Property Act. Accordingly, the appeal was dismissed. 9. Challenging the judgment and decree of the courts below the present second appeal has been filed. Taking all these circumstances into consideration the court below took the view that the defendants were not entitled to the discretionary relief under section 114 of the Transfer of Property Act. Accordingly, the appeal was dismissed. 9. Challenging the judgment and decree of the courts below the present second appeal has been filed. The counsel for the appellant raised the same two points for consideration as were raised before the appellate court namely, the maintainability of the suit at the instance of a co-owner and other being entitlement to the protection against eviction by claiming the benefit of section 114 of the Transfer of Property Act. 10. As regards the maintainability of the suit at the instance of a co-owner, the law is now well settled by the decision of the Apex Court in the case of India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (2004) 3 SCC 178 , which has been followed in Mohinder Prasad Jain v. Manohar Lal Jain (2006) 2 SCC 724 . The law laid down by the apex court is that the suit at the instance of a co-owner is maintainable against the lessee, unless one of the other co-owner objects to the same, which is not the case here. 11. With regards to the benefit of the provisions of section 114 of the Transfer of Property Act, the law is well settled, that the protection is at the discretion of the court (kindly see Hindustan Petroleum Corporation Limited v. Chandra Prakash Bubna 1995 Suppl (4) SCC 167). The courts below after taking into consideration the conduct of the defendant have denied the discretionary relief to him. I've noticed and considered the reasons recorded by the courts below for denying the benefit of section 114 of the Transfer of Property Act. The reasons recorded are germane to the issue and cannot be said to be capricious or whimsical or for that matter arbitrary so as to raise a substantial question of law warranting adjudication within the scope of section 100 of the Civil Procedure Code. 12. No other point was pressed. 13. In view of the discussion made above, the appeal lacks merit and is, hereby, dismissed summarily. _