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Rajasthan High Court · body

2012 DIGILAW 1920 (RAJ)

Sampat Raj v. Mohan Lal

2012-09-10

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The present second appeal has been filed by the appellants-plaintiffs-landlord in this Court on 06.09.1994 aggrieved by the judgment and decree of learned lower appellate court of Additional District Judge, No.2, Jodhpur allowing defendant-tenant's first appeal being Civil Appeal No.36/94- Mohan Lal S/o Moolchand vs. Sampat Raj and Devraj, both sons of Sh. Kanhaiyalal. The learned lower appellate court below reversed the judgment and eviction decree dated 17.02.1994 passed by learned trial court of Munsif & Judicial Magistrate, Pipar City, District Jodhpur in Civil Suit No.1/87- Sampat Raj & Anr. vs. Mohan Lal, which was filed in respect of suit premises, a residential house, situated in “Dhooton-ka-Mohalla”, Pipar City, Jodhpur, which was initially let-out to the defendant-tenant way back on 24.08.1979 for a monthly rent of Rs.11/- only. 2. The learned trial court, inter-alia, had decreed the eviction suit filed by the plaintiff-appellant on the ground grounds specified in Section 13 (1) (i) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950, (for brevity, hereinafter referred to as 'Act of 1950') on the ground that alternative accommodation had become available to the defendant-tenant as he purchased a residential house in the same locality, namely, “Dhooton-ka-Mohalla”, Pipar City in the name of his wife, namely, Smt. Sohini Devi on 06.03.1987 by a registered sale-deed for Rs.26,880/-, Exhibit-4 on record. The defence of the tenant, Mohan Lal that he was not in good terms with his wife and was living separately from his wife, was not believed by the learned trial court and the learned trial court held that for purchasing the house in the name of his wife, since money for such purchase was paid by the defendant-tenant himself and the registry of the house only was done in the name of his wife, relying upon the evidence of PW.1, namely, Manmal Chordia (power of attorney holder of the appellants-plaintiffs) and PW.2, namely, Amrit Lal (who sold the house to the defendant-tenant's wife Smt. Sohini Devi), the learned trial court granted the eviction decree in favour of landlord. 3. 3. The learned lower appellate court below, however, allowed the appeal of the defendant-tenant and reversing the finding on Issue No.5, held that the husband and wife are two independent entities and disbelieving the evidence of PW.1, Manmal Chordia and PW.2 Amrit Lal, the learned lower appellate court held that even though the defendant-tenant failed to produce his wife, Smt. Sohini Devi, before the learned trial court as a witness, it could not be said that merely with the purchase of the residential house in her name, such alternative accommodation had become available to the defendant-tenant and consequently, the learned trial court was not justified in passing the eviction decree and appeal of the defendant-tenant was thus liable to be allowed. 4. The plaintiffs-landlord, accordingly, preferred this second appeal on 06.09.1994, on which a coordinate bench of this Court on 07.03.2006 framed the following three substantial questions of law for consideration: - 1. Whether the first appellate court erred in law in discarding the evidence of witness PW-1 Manmal for all purposes irrespective of the fact that statement of Manmal could have been admitted in evidence to prove the facts, which are in personal knowledge of the said witness and could have been proved by PW-1 Manmal? 2. Whether acquiring a suitable residential accommodation by spouse of the tenant is a acquisition of the vacant possession of the residential accommodation by the tenant in terms of Sub-Clause (i) of Sub-Section (1) of Section 13 of the Rajasthan Premises (Rent, Control and Eviction) Act, 1950? 3. Whether any of the legal representatives of the deceased tenant was entitled to protection under the provisions of the Act of 1950, in view of the fact that according to defendant himself none of the family member is residing with him at the time of his death? 5. Mr. R.R. Nagori, Sr. Advocate assisted by Mr. 3. Whether any of the legal representatives of the deceased tenant was entitled to protection under the provisions of the Act of 1950, in view of the fact that according to defendant himself none of the family member is residing with him at the time of his death? 5. Mr. R.R. Nagori, Sr. Advocate assisted by Mr. Alkesh Agarwal, learned counsel for the appellants-plaintiffs-landlord, submitted that during the pendency of the present second appeal before this Court, admittedly the defendant-tenant Mohan Lal has expired on 23.09.1995 and his wife Smt. Sohini Devi, has also expired on 09.08.2009 and thereafter the legal representatives of original defendant, Mohan Lal, were taken on record by allowing application under Order 22 Rule 4 CPC by a coordinate bench of this Court on 22.02.2006 and 09.04.2007 respectively when the application under Order 22 Rule 3 read with Order 22 Rule 9 was allowed by the coordinate bench of this Court taking the legal representatives of appellant No.2-, namely, Dev Raj on record. 6. Mr. R.R. Nagori, also urged that the present legal representatives of the defendants, who are contesting the present second appeal of the appellants-plaintiffs-landlords, had not become the “tenants” as defined under Section 3 (vii) of the Act of 1950 since they failed to bring on record any evidence before the courts below that they were ordinarily residing with defendant-tenant (Mohan Lal) prior to his death on 23.09.1995 and on the contrary the defendant, Mohan Lal, himself has admitted in his statement recorded by the court below on 06.04.1993 that he was living separately from his family members in the suit premises and there was no contrary evidence on record. Thus with the death of both, husband (defendant- Mohan Lal) and his wife, Smt. Sohini Devi, the present legal representatives were not entitled to retain the possession of the suit premises and were liable to handover the vacant and peaceful possession of the suit premises to the legal representatives of landlord, who are present on record. He also informed the Court that in fact the sons of the plaintiffs are living in Chennai and only the mother of the plaintiff, Sampat Raj and Dev Raj (wife of Sh. He also informed the Court that in fact the sons of the plaintiffs are living in Chennai and only the mother of the plaintiff, Sampat Raj and Dev Raj (wife of Sh. Kanhaiyal), who was living in the suit premises, also expired sometime back and nobody of the tenant's family is also living in the suit premises and thus only the vacant house with the lock of the tenant's family members is lying as it is, of which the vacant possession deserves to be given to the legal representatives of landlord, who are already on record since the learned trial court had rightly passed the eviction decree on the ground of availability of alternative accommodation to the tenant- Mohan Lal during his lifetime. He, therefore, submitted that the learned lower appellate court had erred in reversing the findings arrived at by the learned trial court by its impugned judgment and decree under present appeal dated 25.05.1994. In support of his contentions, he relied upon following judgments: 1. Smt. Padmavati Devdatta Kamat vs. Shri Vijay Kumar Narayan reported in AIR 2002 SC 1262 2. Vrajalal Dwarkadas vs. Girdharlal Kalidas Dhruve reported in 2004 (2) RCR 314 (Guj.) 3. Navinchandra Nathala Doshi vs. Jagdishbhai Shankerlal Modi reported in 2004 (2) RCR 571 (Guj.) 4. Dr. Shashibhushan vs. Bata India Ltd. reported in 1992(2) Kar.LJ 1490. 7. On the contrary, Mr. R.K. Thanvi, Sr. Advocate with Mr. Narendra Thanvi, learned counsel appearing on behalf of defendant-tenants (legal representatives of original defendant-tenant, Mohan Lal) urged that the learned lower appellate court was justified in holding that mere acquisition of residential house in the name of Mohan Lal's wife, Smt. Sohini Devi, was not sufficient ground to decree the eviction of the suit premises since the defendant, Mohan Lal had stated in his statement before the court that he was living separately from his wife and said alternative accommodation (residential house) purchased by her wife in her own name, was not 'Benami' property, of the husband (tenant- Mohan Lal), merely purchased in the name of his wife. He also urged that unless the defendant-tenant starts residing in such alternative accommodation, it does not furnish a valid ground for eviction of the defendant-tenant from the suit premises under Section 13 (1) (i) of the Act of 1950. He also urged that unless the defendant-tenant starts residing in such alternative accommodation, it does not furnish a valid ground for eviction of the defendant-tenant from the suit premises under Section 13 (1) (i) of the Act of 1950. He also submitted that the PW.1, Manmal Chordia was not the plaintiff and he was only the power of attorney holder of the plaintiffslandlord, who were residing at Chennai and in view of following judgments, he relied upon, the statement of power of attorney holder, could not be relied upon by the learned trial court. 1. Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors. reported in AIR 2005 SC 439 2. Smt. Shanta Meena vs. Smt. Kulshree & Anr. reported in 2011 (2) WLC (Raj.) 236 = 2011(3) RLW 1918 3. Kailashi Devi vs. Matadeen Agrawal & Ors. reported in AIR 2001 Rajasthan 306 = RLW 2001(4) Raj. 226 8. I have given my anxious consideration to the rival submissions made by the learned counsels for the parties and carefully perused the reasons given in the impugned judgment and decree/s of both the courts below and, so also, perused the caselaws cited at bar. 9. The third substantial question of law, framed above, deserves to be decided first. Admittedly, since the defendant-tenant, Mohan Lal had expired on 23.09.1995 and his wife Smt. Sohini Devi, has also expired on 09.08.2009 after filing of the present second appeal in this Court on 06.09.1994, the question which deserves to be answered first is as to whether the legal representatives of original defendant-tenant, Mohan Lal, are entitled to the protection under the Act of 1950 or not and whether they fall within the definition of “tenant” as defined under Section 3 (vii) of the Act of 1950 and whether they can still retain the possession of the suit property. Section 3 (vii) of the Act of 1950 reads as under: - “S. 3 (vii)- (a) “Tenant” means the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.” 10. Admittedly, there is no evidence on record, brought from the side of the defendant-tenant that their legal representatives, who are now contesting the present second appeal of the plaintiffslandlord were ordinarily residing with the defendant-tenant, Mohan Lal, prior to his death on 23.9.1995 with him. The DW.1, Mohan Lal (tenant) himself averred in the statement recorded by the learned trial court that he was living separately from his family members in the suit premises. In the absence of any other evidence, this Court is bound to come to the conclusion that the legal representatives of defendant- Mohan Lal are not covered by the definition of “tenant” and did not inherit the rights of tenancy as envisaged under Sec. 3(vii) of the Act of 1950 as they have failed to establish that they were ordinarily residing with defendant-tenant, Mohan Lal prior to his death on 23.9.1995. The substantial question of No.3, therefore, is answered against the defendants-tenant (legal representa-tives of original defendant-tenant) and in favour of plaintiffs-appellants. 11. The substantial question No.2, is as to whether the suitable residential accommodation was available to the defendant-tenant during his lifetime with the acquisition or purchase of alternative accommodation, a residential house, in the name of his wife, Smt. Sohini Devi, vide Exhibit-4, registered sale-deed on 06.03.1987 or not. 11. The substantial question No.2, is as to whether the suitable residential accommodation was available to the defendant-tenant during his lifetime with the acquisition or purchase of alternative accommodation, a residential house, in the name of his wife, Smt. Sohini Devi, vide Exhibit-4, registered sale-deed on 06.03.1987 or not. This Court is again of the opinion that in the absence of wife- Smt. Sohini Devi, herself having been produced before the learned trial court, who could only be cross-examined by the plaintiffs to verify the truth in the statement of DW.1 Mohan Lal (tenant) himself that his relationship with his wife, Smt. Sohini Devi were strained and he was living separately from his wife in the suit premises for last 11-12 years, is the self-serving statement to avoid the ground of eviction under Section 13 (1) (i) of the Act of 1950 of the defendant-tenant himself could not be believed. No other documentary evidence or oral evidence was led by the defendant-tenant to rebut the evidence led by the plaintiffs that the defendant himself has purchased one residential house with his own money vide seller Amrit Lal (PW.2's statement), though in the name of his wife Smt. Sohini Devi and that such an alternative accommodation had thus become available to him, the learned trial court was justified in arriving at the conclusion that the tenant deserves to be evicted from the suit premises in view of such availability of alternative accommodation to him. The burden in this regard obviously shifted on the defendant himself to establish that alternative accommodation was not suitable to him for good reasons to be established by him. Neither any proceedings for matrimonial dispute between the two was adduced as an evidence nor any other neighbour or relative was produced before the court below to establish that the relationship between the two, were strained and the defendant- Mohan Lal himself was living separately from his family. On the other hand, in para 1 of the written statement, the defendant- Mohan Lal had clearly averred that he was living in the suit premises with his family for last 28 years. On the other hand, in para 1 of the written statement, the defendant- Mohan Lal had clearly averred that he was living in the suit premises with his family for last 28 years. The said written statement was filed before the learned trial court on 27.07.1989 and the statements of the defendant-tenant, Mohan Lal were recorded by the learned trial court on 04.05.1993 after gap of 4 years, wherein the said defendant has stated that he was staying separately for last 12 years from his wife, and about 10 years back, his wife had purchased the house only her own funds. The contradictions in the written statement filed by the defendant-tenant and in his statements after four years, recorded by the court below is significant. Obviously, the person was not telling the truth before the Court. 12. Be that as it may, after the death of said person, this Court need not comment upon the false stand taken by him before the court below and suffice it to say that statement of said defendant-tenant, Mohan Lal that since he was living separately, the availability of alternative accommodation to him, was not there, is not a statement, which inspires any confidence; and consequently the learned trial court was justified in not believing the same and directing the eviction on the ground specified under Section 13(1)(i) of the Act of 1950, viz. availability, ownership being not relevant of alternative accommodation for residence of the defendant-tenant. The substantial question of No.2, therefore, also deserves to be answered in favour of plaintiffs-appellants (landlord) and against the defendant-tenant. 13. The first substantial question of law as to whether the evidence of PW.1, Manmal Chordia (power of attorney holder of the plaintiffs-appellants/cousin brother of the plaintiffs) could be believed or not, is essentially a finding of fact because the statements made by the power of attorney holder of the facts within his own knowledge could always be relied upon and obviously the facts within the knowledge of the person, who is giving the power of attorney can neither to be stated by such power of attorney holder, nor can be allowed. The case-laws relied upon by the learned counsel for the defendant-tenant-respondent are to the same effect. The said substantial question of law is of no great significance in the present case in view of aforesaid answers to question Nos. The case-laws relied upon by the learned counsel for the defendant-tenant-respondent are to the same effect. The said substantial question of law is of no great significance in the present case in view of aforesaid answers to question Nos. 2 and 3 in favour of plaintiffs, therefore, the question No.1 is not even required to be answered by this Court. 14. The Hon'ble Supreme Court in the case of Smt. Padmavati Devdatta Kamal & Ors. (supra) in para 5 and 6 has held as under: “5. It is against this judgment the appellants have preferred the above civil appeal and, as stated above, the appeal was entertained by this Court and an interim stay of operation was granted as far as back in the year 1995. Above-mentioned Shri Dinesh Devadatta Kamat one of the appellants who appeared in person contended that the findings of the Courts below were perverse inasmuch as the accommodation acquired by Sunil, one of the members of the family, was exclusively for his benefit and not for the benefit of the joint family. Apart from stating the above, he has not been able to point out with reference to the records how this finding is either perverse or not based on any evidence. We notice that the three Courts below have concurrently come to the conclusion that the accommodation acquired in the name of Sunil was for the benefit of the entire family and the said accommodation was a suitable alternative accommodation. Therefore, the respondent-landlords were entitled for possession of the suit schedule premises for their own use and occupation. In this regard, it may be of some relevance to refer to the findings of the learned Civil Judge in Civil Suit No.174/80 wherein he has held: “Admittedly deceased Devadatta was tenant in the suit premises prior to purchase by plaintiff. It is also not in dispute that he resided up to 1980 in the suit premises as tenant. Dinesh married in 1989 and his wife is serving in BMC. There is no any evidence produced by the defendants like voter list or ration card etc., to show that Dinesh Kamat was residing in the suit premises during 1969. Dinesh Kamat is running the business of astrology and earning money thereby. He is also Union Leader of Organisation.” 6. Dinesh married in 1989 and his wife is serving in BMC. There is no any evidence produced by the defendants like voter list or ration card etc., to show that Dinesh Kamat was residing in the suit premises during 1969. Dinesh Kamat is running the business of astrology and earning money thereby. He is also Union Leader of Organisation.” 6. This plea of the trial Court has been accepted both by the appellate Court as well as writ Court and this being a finding on question of fact, we do not find any reason to interfere with the same, moreso when the appellant in person, who argued this appeal in the second round, was unable to point out with reference to records how this finding is either incorrect or perverse. Apart from making certain general observations as to his present status and hardship that he may suffer if eviction is ordered, this appellant was not able to point out how respondents were not entitled to the eviction sought for by them.” 15. In the case of Vrjalal Dwarkadas (supra), the learned Single Judge of Gujarat High Court while deciding the revision application, held as under: - “11. It has been pointed out by the respondent, party-in-person that over and above the house, which is purchased by the petitioner in the name of his wife, other two houses are also purchased by the defendant. However, in this connection, there is no cogent evidence on record. So, that part of the submission cannot be taken into account for deciding this revision application. However, considering the evidence on record, both documentary and oral, it is clear that the petitioner's wife has not purchased the house in question from her own resources and it seems to have been purchased by the husband in the name of his wife. Not only that, the defendant himself has purchased the stamp paper, as indicated in the earlier part of this order. In spite of this, the defendant has stated, in his evidence, that, at the relevant time, he was not aware that his wife has purchased the said house nor has his wife informed him as to how the sale consideration was paid by her. In spite of this, the defendant has stated, in his evidence, that, at the relevant time, he was not aware that his wife has purchased the said house nor has his wife informed him as to how the sale consideration was paid by her. Apart from the aforesaid aspect, it is clearly borne out from the evidence that the wife of the defendant-tenant had no income of her own and the mere statement by the tenant, that, by selling some ornaments, she has purchased the new house, is not sufficient to arrive at a conclusion that she has purchased the house from her own income, especially when the tenant himself has stated, in his evidence, that the wife is having no income worth the name. The defendant has also not examined his wife in the evidence nor any evidence worth the name is produced to substantiate the say that the house in question is purchased by his wife from her own income. Simply because the payment is made by the wife, itself is not sufficient for coming to the conclusion that the house was purchased by the wife from her own income, and the petitioner, who is doing business, cannot be said to be ignorant as to in which manner the aforesaid amount was paid and the particulars about sale of so-called ornaments by the wife. It is also required to be noted that even as per Exhibit 52, it is found that even the rented house was not used for a considerable time and no electricity consumption that the petitioner-tenant, who is residing with his wife, is required to be evicted from the suit premises, on the ground of acquisition of alternative accommodation. The finding of fact arrived at by the appellate court, in my view, cannot be said to be erroneous in any manner. Though the appellate Court has not specifically given its finding to the effect that the house in question is purchased by the tenant in the name of his wife from his income, reading the evidence on record, the aforesaid aspect is absolutely clear. Under the circumstances, the order of the appellate Court is not required to be interfered with by this Court in this revision application.” 16. The Karnataka High Court in the case of Dr. Under the circumstances, the order of the appellate Court is not required to be interfered with by this Court in this revision application.” 16. The Karnataka High Court in the case of Dr. Shashibhushan (supra) has held as under: - “The use of the words 'built, acquired or allotted' in the clause is intended to cover different modes under which the tenant may secure suitable building, which includes part of a building. It seems that the words “to be let separately” would also indicate part of a newly constructed building which could be let separately but which is already in the occupation of the tenant along with the remaining building. The object underlying the clause is to prevent a tenant who builds or acquires a suitable building from continuing to occupy another tenanted premises. It is not open for such a tenant to avoid his liability for eviction from the premises even if he establishes that the building so built or acquired by him, which could have been put to use for which the tenanted premises is used, but in fact not put to such use or was not intended to be put to such use.. It is abundantly clear from a perusal of Clause (p) that the suitability of the building built, acquired or allotted necessarily has reference to the premises in the occupation of the tenant and has no nexus or relevance to his further requirement on account of increase in the volume of his business.” 17. Consequently, the present second appeal filed by the appellants-plaintiffs (landlord) is allowed with cost of Rs.5000/- and answering the substantial questions of law No.2 and 3 in favour of plaintiffs, while not answering the substantial question No.1 aforesaid, the decree of the learned trial court of eviction dated 17.02.1994 is upheld and the decree of learned lower appellate court dated 25.05.1994 is set aside. The costs shall be paid by the legal representatives of defendant-Mohan Lal to the plaintiffs-appellants within a period of three months from today. 18. The respondents-defendants (legal representatives of original defendant-tenant, Mohan Lal) shall hand over the peaceful and vacant possession of the suit premises to the appellantsplaintiffs (landlord) within a period of six months from today and shall pay mesne profit @ Rs.2000/- per month commencing from September, 2012. 18. The respondents-defendants (legal representatives of original defendant-tenant, Mohan Lal) shall hand over the peaceful and vacant possession of the suit premises to the appellantsplaintiffs (landlord) within a period of six months from today and shall pay mesne profit @ Rs.2000/- per month commencing from September, 2012. The arrears of mesne profit shall be cleared within three months from today and the defendant-tenant will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the appellants-plaintiffs till the vacant possession is handed over to the appellants-plaintiffs 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 defendants-respondents also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% and executing Court may quantify such amount and recover the same as a money decree. The defendants-respondents 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, if so created, would be treated as void. The respondentsdefendants 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 or rent or mesne profits are not paid to the appellantsplaintiffs/ landlord within a period of six months from today, besides expeditious execution of the decree in normal course, the appellantsplaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to both the courts below and both the parties concerned forthwith.