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2012 DIGILAW 845 (RAJ)

Nand Kishore v. Shri Niwas

2012-04-06

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—This civil second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 23.2.1995 passed by the District Judge, Jhunjhunu in Regular Civil Appeal No.30/1990 whereby the learned appellate Court by dismissing the first appeal preferred by the plaintiff-appellants has upheld and affirmed the judgment and decree dated 29.11.1990 passed by the trial Court i.e. Civil Judge, Jhunjhunu in Civil Suit No.1/1990 whereby the suit filed by the plaintiff-appellants for eviction was dismissed. 2. Brief relevant facts for the disposal of this appeal are that the plaintiffs-landlord Shri Ladu Ram and Shri Nand Kishore filed a suit for eviction and recovery of rent against the defendant-tenant Shri Shri-Niwas on 30.5.1981 on the ground of default in payment of rent and subletting with the averments that the suit-shop situated adjacent to the temple of Shri Laxminathji at Nawalgarh was taken on rent by the defendant at the rate of Rs.17/- per month and in this regard a rent-note was also executed by him on Mitti Asoj Badi Ekam, Samvat 2033. The defendant filed written statement on 6.11.1981 and apart from denying the grounds of eviction taken by the plaintiffs in the plaint, it was also averred by him that the plaintiffs have no concern with the suit-shop and it vests in Mandir Shri Laxminathji and he has executed a rent-note in favour of deity of Shri Laxminathji. It was further averred by the defendant that the plaintiffs have no right to bring the present suit and deity also should have made a party to the suit. 3. It was further averred by the defendant that the plaintiffs have no right to bring the present suit and deity also should have made a party to the suit. 3. On the basis of pleadings of the parties, the learned trial Court framed following issues:- 1- vk;k izfroknh us oknxzLr nqdku dks oknhx.k ls fdjk;s ij yh gS rFkk bldk vafre fdjk;kukek vlkst cnh 1 laor~ 2033 dks muds fgr esa fu"ikfnr fd;k Fkk\ --oknhx.k 2- vk;k izfroknh us cs'kk[k cnh 1 la- 2036 ls oknhx.k dks fdjk;k vnk ugha fd;k gS vkSj bl izdkj fMQkYVl ds dkj.k dkfcys csn[ky gS\ --oknhx.k 3- vk;k izfroknh us nqdku dks jkeizrki uke ls O;fä dks fcuk ejth oknhx.k lcysV dj nh ftl dkj.k Hkh ;g dkfcys csn[ky gS\ --oknhx.k 4- vk;k izfroknh us tokcnkok esa oknxzLr nqdku ds laca/k esa oknhx.k dks VkbVy ¼ title ½ ls gh bUdkj fd;k gS vksj bl dkj.k Hkh dkfcys csn[ky gS\ --oknhx.k 5- vk;k oknhx.k izfroknh ls cs'kk[k cnh 1 la-2036 ls fdjk;k izkIr djus ds vf/kdkjh gS\ --oknhx.k 6- vk;k izfroknh dks nqdku izFke ckj 9-9-76 dks gh fdjk;s ij nh xbZ Fkh vkSj bl dkj.k nkok ikap lky iwoZ ugha py ldrk\ --izfroknh 7- vk;k uksfVl voS/k gS\ --izfroknh 8- vk;k oknhx.k dks nkok djus dk vf/kdkj ugha gS\ --izfroknh 9- nknjlhA Although, in the plaint no plea on the basis of denial of title of the plaintiffs-landlord was not taken but on the basis of averments made and pleas taken by the defendant-tenant in the written statement, issue No.4 regarding denial of title of the plaintiffs-landlord under the provisions of Section 13 (1) (f) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as “the Act”) was also framed. 4. Both the parties adduced evidence and the learned trial Court after hearing both the parties by reason of judgment and decree dated 29.11.1990 dismissed the suit filed by the plaintiffs. While deciding Issue No.4 although it was held by the trial Court that evidence available on record clearly indicates that plaintiffs are owner of the suit-shop but it was concluded that it cannot be said that the defendant has denied the fact that the plaintiffs are owner of the suit-shop. Under Issue Nos. While deciding Issue No.4 although it was held by the trial Court that evidence available on record clearly indicates that plaintiffs are owner of the suit-shop but it was concluded that it cannot be said that the defendant has denied the fact that the plaintiffs are owner of the suit-shop. Under Issue Nos. 1 and 8 it was held by the trial Court that the suit-shop was taken by the defendant on rent from plaintiffs and rent-note (Ex.1) was executed by him on Asoj Badi Ekam Samvat 2033 and plaintiffs are entitled to bring the present suit for eviction of defendant. Both the other grounds for eviction were also decided against the plaintiffs. 5. Being dissatisfied the plaintiffs filed First Appeal under Section 96 CPC before the District Judge, Jhunjhunu which was registered as Civil Regular Appeal No.30/1990. The learned appellate Court by upholding and affirming all the findings arrived at by the trial Court dismissed the appeal vide judgment and decree dated 23.2.1995. The findings given under issue No.4 regarding denial of title of the plaintiffs by the defendant were affirmed by the appellate Court by saying that mere raising of plea of vesting of title of the suit-shop in the temple of Shri Laxminathji, at the most it can be said that the plea regarding denial of title is bonafide and it cannot be said that it is a direct repudiation of landlordship of the plaintiffs as it is an admitted fact that the suit-shop is situated adjacent to the temple although it is an admitted fact that the suit shop was taken by the defendant from the plaintiffs by executing rent-note (Ex.1) and prior to him his father was tenant of the plaintiffs. It was also held by the appellate Court that it is duty of the Court to consider whether the plea taken by the tenant is bonafide or malafide and for a ground of eviction to be made out on the basis of denial of title of 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. Still dissatisfied, the plaintiffs-landlords are before this Court by way of this Second Appeal. 6. Still dissatisfied, the plaintiffs-landlords are before this Court by way of this Second Appeal. 6. The appeal was admitted on 17.4.1996 on the following substantial question of law: ^^D;k & bl dsl ds leLr rF;ksa ds vk/kkj ij oknh vihykFkhZ fooknxzLr lEifÙk esa izR;FkhZx.k ds fo:) csn[kyh dh fMØh izkIr djus dk vf/kdkjh gS\** 7. 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 bonafide 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 malafide or “not bonafide”. 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 comptent to interfere in such finding even in a second appeal. In support of his submissions, learned counsel for the appellants apart from relying on provisions of Section 13 (1 (f) of the Act and Section 116 of the Evidence Act, also relied upon judgment dated 5.11.2009 passed by this Court in S.B.Civil Second Appeal No.185/1994 (Smt. Miyadi through LRS. vs. Smt.Ratni through LRS.). 8. 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, although the respondent-tenant has denied the title of the appellant-landlord in the written statement but he during trial bonafidely has admitted that appellants are his landlords and he always paid rent to them and in such fact situation, it cannot be that said the denial was malafide or “not bonafide”. It was further submitted that a concurrent finding of fact regarding denial of title in favour of tenant do not raise a substantial question of law within the purview of Section 100 of the Code of Civil Procedure and it cannot be interfered in this Second Appeal. 9. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the the relevant legal provisions and the case law. 10. 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 bonafide or malafide 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 bonafide or malafide? (iii) Whether in the present case, the denial of title made by the tenant in the written statement was not bonafide or was malafide? (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?” 11. 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. 12. 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.” 13. 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 inadvrtent 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. 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. 14. 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. 14. So far as the denial has to be “not bonafide” or malafide 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 bonafide”, 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 bonafide” or malafide. In absence of such legislative command, landlord cannot be directed to prove that the denial made by the tenant was “not bonafide” or was malafide 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. 15. 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. 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. 16. Even if for the sake of arguments, it is admitted that the denial of title has to be “not bonafide” or malafide, 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 bonafide or not. “Not bonafide” 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 bonafide” . Therefore, to answer the question whether an assertion of denial of landlord's title by the tenant was bonafide or not, all the surrounding circumstances under which the assertion was made shall have to be seen. 17. 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 defendant was direct, clear, unequivocal, unambiguous and also it was “not bonafide” but was with a malafide intention. In the plaint it was specifically averred by the plaintiff-appellants that the suit-shop was taken on rent by the defendant @ of Rs.17/- per month and in this regard a rent-note was also executed by him. It was further averred by them that the defendant has made default in payment of rent and he has sublet the suit-shop to one Shri Ram Pratap. It was further averred by them that the defendant has made default in payment of rent and he has sublet the suit-shop to one Shri Ram Pratap. In the written statement filed by the defendant-respondent more than one place it was averred that the plaintiffs have no concern with the suit-shop and it vests in temple of Shri Laxminathji and the rent-note has also been executed by him in favour of the deity of Shri Laxminathji. It was further averred by the defendant that plaintiffs have no right to bring the suit and deity also should have made a party to the suit. Thus, the defendant-respondent not only denied the relationship of landlord and tenant between the parties but also it was specifically said by him that the ownership of the suit-shop vests in the temple and his landlord is also temple. On the other hand, during trial both the Courts below found that the rent-note (Ex.1) was executed by the defendant in favour of plaintiffs and, therefore, he is tenant of the plaintiffs. It was also found that as the plaintiffs are landlord of the defendant, they are entitled to bring suit for eviction against him and the suit is maintainable. It is pertinent to note that during trial it was admitted by the defendant that the suit-shop was taken by him on rent from plaintiffs and he is paying rent to them. I am of the considered view that when during trial the defendant has admitted that the suit-shop was taken by him on rent from the plaintiffs and he has alwlays paid rent to them, the assertion made or plea taken by him in the written statement to the effect that the plaintiffs have no concern with the suit-shop and it vests in the temple and the rent-note has been executed by him in favour of temple and the suit is not maintainable on behalf of plaintiffs, cannot be said to be bonafide or not malafide. In the present case, the defendant failed to produce any evidence even prima facie 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 plaintiffs on behalf of the temple. In the present case, the defendant failed to produce any evidence even prima facie 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 plaintiffs 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 defendant bonafidely asserted in the written statement that the suit shop vests in the temple and the plaintiffs have no concern with it. Similarly, it is very much clear that the denial or repudiation made by the defendant 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 that once. It is not the case of the defendant that the original landlord was temple and the suit shop was transferred to the plaintiffs but he was having no notice of that fact and in good faith and for his own protection he took a plea in the written statement denying the title of the plaintiffs. The learned First Appellate Court without considering the matter in a right perspective has wrongly held that the denial of title made by the defendant is bonafide and the assertion made in the written statement are not 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 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 a fit case in which the finding given under Issue No.4 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. 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. O R D E R Consequently, the Civil Second Appeal is allowed and the judgment and decree dated 23.2.1995 passed by the District Judge, Jhunjhunu in regular first appeal No.30/1990 and the judgment and decree dated 29.11.1990 passed by the Additional Civil Judge, Jhunjhunu are set aside and the Civil Suit No.1/1990 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 peacefull possession of it to the plaintiff-respondents.