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2012 DIGILAW 1615 (RAJ)

Kamla Devi v. Bajrang Saw Mills

2012-07-24

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The present second appeal has been filed by the Landlady Smt. Kamla Devi wife of Shri Rameshwar Lal Bhadada, aggrieved by the judgment and decree of the courts below, seeking the eviction of the defendant-tenant M/s. Bajrang Saw Mills, a Partnership Firm. The brief facts leading to the present second appeal, are as under: 2. The present suit for eviction was filed by the Landlady Smt. Kamla Devi on 17.05.1974 seeking eviction of the tenant M/s. Bajrang Saw Mills from the plot of land, which was given on rent under the Rent Note executed vide Ex.4 on 12.11.1968 by the Partners of the defendant-firm, Shri Ajay Goyal and Shri Shanker Lal Somani in favour of Shri Rameshwar Lal Bhadada – the husband of the present appellant – plaintiff. Inter alia, in the said rent note, it is stated in Clause 3 that, at the time of giving back the vacant possession of Nohara (disputed land), the tenant will not claim anything on account of the cost, if any, incurred by them on the said plot of land. The eviction was sought by the Landlady Smt. Kamla Devi claiming that on 31.03.1973, the suit premises – the plot of the land, fell to her share in partial partition of the family. The suit was filed, inter alia, on the grounds of default in payment of rent, the material alternation on the suit property and for bonafide need of the Landlady. She also claimed in para 7 of the plaint that she had terminated the lease / tenancy of the defendant – tenant on 15.10.1973 by the notice dated 17.10.1973. 3. The learned Trial Court of Munsif and Judicial Magistrate, I Class, Bhilwara by its judgment and decree dated 16.05.1980 dismissed the suit No.154/1974 and inter alia held on Issue No.3 that the construction on the plot of land in question was done with the concurrence and acquiescence of the then Landlord Shri Rameshwar Lal Bhadada, who was living only 700 Meters away from the suit premises and Clause 3 of the Ex.4 – Rent Note also indicated that the construction in question was done with the consent of the Landlord. 4. The issue of default was also decided against the plaintiff, so also the issues of material alteration and bonafide necessity. 5. 4. The issue of default was also decided against the plaintiff, so also the issues of material alteration and bonafide necessity. 5. Being aggrieved by the said dismissal of the suit, the plaintiff - Landlady took the matter further to the First Appellate Court to the learned Additional District Judge, Bhilwara vide Appeal No.58/1981 – Smt. Kamla vs. Bajrang Saw Mills and others, which too came to be dismissed on 07.01.1989 with costs and the learned Appellate Court affirming the findings on Issue No.3 about material alternation of the learned Trial Court, however, reversing the findings on Issue No.1 about the relationship of the Landlady and the Tenant, held that since the property in question fell in the share of the Landlady Smt.Kamla upon partial partition on 31.03.1973, a notice of which was given to the defendant, therefore, the relationship of the Landlady and the Tenant was established qua the appellant-plaintiff. However, the learned Appellate Court did not agree with the material alternations having been done by the defendant-tenant. 6. Being aggrieved by the said appellate decision, the plaintiff-appellant -Landlady is before this Court in the present appeal filed under Section 100 CPC on 05.04.1989. At the time of admission of the appeal by a co-ordinate Bench of this Court on 30.08.1989, the following substantial questions of law were framed for consideration by this Court: “1. Whether the findings of the lower appellate court that the defendants have not made construction in the demised premises which have materially altered it are perverse and contrary to the evidence on record? 2. Whether the findings of the first appellate court that the defendants raised disputed construction in the demised premises with the permission of the plaintiff is perverse?” 7. Learned counsel for the appellant – plaintiff, Mr. Ramit Mehta urged that the learned Appellate Court has fallen into error in affirming the finding of Issue No.3 on the basis of the evidence of husband PW-1 Shri Rameshwar Lal Bhadada, whereas after 31.03.1973 holding that the plaintiff – appellant Smt. Kamla wife of Shri Rameshwar Lal Bhadada had become owner of the suit premises and, she only had filed the suit on 17.05.1974. Therefore, firstly the consent of her husband would not matter and secondly, he submitted that even Shri Rameshwar Lal Bhadada had clearly denied any such consent and permission in his Examination-in-Chief recorded by the learned Trial Court on 15.02.1978. Therefore, firstly the consent of her husband would not matter and secondly, he submitted that even Shri Rameshwar Lal Bhadada had clearly denied any such consent and permission in his Examination-in-Chief recorded by the learned Trial Court on 15.02.1978. He submitted that Clause 3 of the Rent Note (Ex.4) neither means nor can be inferred to have given any consent for construction on the said plot by the appellant-defendant and, therefore, once she was held to be Landlady on the plot in question due to partial partition of family which took place on 31.03.1973, unless the defendant-tenants could establish her own consent or acquiescence about any such construction, which they have admittedly raised on the plot of land in question (Nohra), the Courts below clearly erred in holding that there was no material alternation on the suit premises and consequently the suit deserved to be decreed on the said ground. 8. He submitted that in Para 5 of the written statement of the defendants, also the defendants have admittedly stated that they took the plot of land in question from Shri Rameshwar Lal Bhadada in Samwat Year 2025 equivalent to the Calendar Year 1968 for setting up a Wood Saw Machine on the plot of land in question and whatever construction was raised up to said date viz. up to the date of filing of Written Statement, was done with the consent and concurrence and was within the knowledge of the Landlord Shri Rameshwar Lal Bhadada and which did not amount to material alternation but amounted to improvement of the plot of land in question. 9. Assailing the two judgments of courts below, Mr. Ramit Mehta, prayed for decree of eviction on the ground of material alteration. 10. Per contra, Mr. Vinay Jain, learned counsel for the defendant – tenants submitted that the burden of proof lied upon the plaintiff – Landlady to establish the material alternation after 31.03.1973, as admittedly she became the owner of the suit property only from 31.03.1973. He emphasized that nothing of this sort was established either in the plaint or in the evidence of PW-1 Shri Rameshwar Lal Bhadada, who only appeared in the witness box instead of plaintiff Smt. Kamla Devi herself, as her power of attorney. He emphasized that nothing of this sort was established either in the plaint or in the evidence of PW-1 Shri Rameshwar Lal Bhadada, who only appeared in the witness box instead of plaintiff Smt. Kamla Devi herself, as her power of attorney. He submitted that Clause 3 of the Rent Note clearly envisaged the construction of building for the purpose of setting up of Wood Saw Mills by the defendants-tenants and the then Landlord Shri Rameshwar Lal Bhadada having acquiesced in the matter, his wife – the present Landlady and the plaintiff could not resile from the same. He, therefore, submitted that the decree of the courts below dismissing the suit for eviction is perfectly justified. 11. I have heard learned counsels at length and perused the record including statement of PW-1 Rameshwar Lal, Plaint, Written Statement and Rent Note (Ex.P/4) dated 12.11.1968. 12. The learned Appellate Court below while clearly and rightly holding that ownership of the suit premises i.e. plot of land (Nohra) was with the plaintiff – Landlady Smt. Kamla Devi wife of Shri Rameshwar Lal Bhadada w.e.f. 31.03.1973 could not have, in the opinion of this Court, relied upon to Clause 3 of the Rent Note (Ex.4), which per se also does not amount to any permission to raise construction. The said Clause 3 could only mean that the cost incurred by the defendant – tenant in whatever form would not give any equity to the defendant to claim any compensation for that reason from the Landlord. The said Rent Note is only signed by two Partners of defendant-firm Mr. Ajay Goyal and Mr. Shanker Lal Somani. Mr. Rameshwar Lal Bhadada has not even signed it. Neither the date or period of construction has been stated in the written statement nor in the statements of partners of the defendant-firm. The defendants have only stated that whatever construction was raised, was with the consent and concurrence of Shri Rameshwar Lal Bhadada – the husband of the present plaintiff-appellant. Mr. Rameshwar Lal Bhadada has not even signed it. Neither the date or period of construction has been stated in the written statement nor in the statements of partners of the defendant-firm. The defendants have only stated that whatever construction was raised, was with the consent and concurrence of Shri Rameshwar Lal Bhadada – the husband of the present plaintiff-appellant. Once the plaintiff – Landlady came to the Court with the case that material alterations have been done on the suit premises; namely the empty plot of the land (Nohra) by the defendant – tenant and such plaint averments are proved by the husband in his Examination -in- Chief, by which he stood in his Cross-Examination also, the burden obviously shifted on the defendant-tenants to show that the material alteration was done with the consent and concurrence of the plaintiff – Landlady. No such consent or concurrence of the present Landlady has been even averred, much less established with any proof by the defendant – tenants. Since the ownership and title, even though such questions not being very relevant in the eviction matters, even if admissible by the husband was to be assumed, the same is of no consequence. Since the factum of raising of construction has been admitted by the defendants in the written statement itself in para 5, the question of plaintiff – proving, the same first of all could not arise and moreover, the husband of the plaintiff – appellant Shri Rameshwar Lal Bhadada has clearly stated in his statement before the Court that such construction was raised by the defendant – tenants, for which there was no consent even on his part. Mere knowledge of construction raised by the defendant – tenants, does not bind the present plaintiff – Landlady. The Courts below have apparently fallen into error in misconstruing the construction raised by the defendant – tenants as to be with the concurrence of the husband of the plaintiff so as to even bind his wife – plaintiff Landlady. That is a grave error, which stares in the face. Nothing turns on the Clause 3 of the Rent Note either, so as to go in favour of the defendant – tenant. That is a grave error, which stares in the face. Nothing turns on the Clause 3 of the Rent Note either, so as to go in favour of the defendant – tenant. The tenancy having been terminated by the Landlady by proper notice and factum of material alteration having been proved, the plaintiff – Landlady was entitled to the eviction decree, which was unjustly denied by the courts below. 13. The present appeal of Landlady, therefore, deserves to be allowed and the same is allowed accordingly and the substantial questions of law framed above are answered in favour of the appellant-Landlady and against the defendant-tenants. 14. The respondents-defendants shall hand over the peaceful and vacant possession of the suit property to the appellant-plaintiff-Landlady within a period of six months from today and shall pay mesne profit @ Rs.10,000/-per month commencing from July, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent also till vacant possession is handed over to the plaintiff-Landlady and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondent-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the plaintiff-appellant-Landlady within a period of six months from today, besides execution of the decree in normal course, the plaintiff - appellant shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the learned courts below forthwith. No costs.