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2013 DIGILAW 2077 (RAJ)

Kailash Chand Pareek v. Shri Gopal Lal

2013-11-23

ALOK SHARMA

body2013
JUDGMENT 1. - This second appeal under Section 100 CPC has been filed against the judgment and decree dated 09.02.2009, passed by the Civil Judge (S.D.), Kishangarh, District Ajmer as upheld by the first appellate Court i.e. the Additional District & Sessions Judge (F.T.) No.3, Ajmer Camp, Kishangarh, under its judgment and decree dated 13.10.2010. 2. The facts of the case are that the plaintiff-respondent (hereinafter 'the plaintiff') filed a suit for eviction before the Civil Judge (S.D.), Kishangarh, District Ajmer seeking eviction of the defendant-appellant (hereinafter 'the defendant') from the suit property consisting of six rooms on the ground floor and five rooms on the first floor with a kitchen, bathroom & latrine situate in Tulsi Marg, Oswali Mohalla, Madanganj, Kishangarh, District Ajmer. Stating himself to be the landlord, the plaintiff averred that the tenancy of the defendant had been terminated under a notice sent on 10.12.2004 with reference to Section 106 of the Transfer of Property Act, 1882 (hereinafter 'the Act of 1882'). The registered AD of the said notice was received back on 23.12.2004. Consequently the tenancy stood terminated in accordance with the notice. Yet the defendant had not vacated the tenanted premises and continued to occupy it as a trespasser. It was stated that consequently, the eviction suit had to be filed and a decree of eviction against the defendant be passed. Arrears of rent for over five years were stated to be outstanding but a claim only for 36 months prior to the filing of the suit was made Rs. 644/- p.m. in view of the limitation Act, 1963. A decree was also sought on this count. 3. On service of notice in the suit, the defendant filed a written statement of denial. He stated that the notice dated 10.12.2004 was contrary to the requirement of Section 106 of the Act of 1882 as it attributed to the defendant's tenancy eleven rooms, when the defendant in fact was a tenant only in respect of one room and a kitchen with latrine and bathroom. The other rooms in the suit property were stated to be independently in possession of the other children of Banshi Lal, the defendant's father who was stated to be the actual erstwhile tenant. It was also stated that the rental of the premises was not Rs. 644/- p.m., but only Rs. The other rooms in the suit property were stated to be independently in possession of the other children of Banshi Lal, the defendant's father who was stated to be the actual erstwhile tenant. It was also stated that the rental of the premises was not Rs. 644/- p.m., but only Rs. 125/- p.m. and the defendant was ready and willing to pay the agreed rent both due and future for the tenanted premises. 4. On the basis of the pleadings of the parties, the learned trial court framed four issues. On consideration of the matter, the learned trial court found that the tenancy of the defendant stood terminated in terms of the notice under Section 106 of the Act of 1882 which had been admitted to have been received by the defendant in his cross-examination. The trial court found that Ex-6 i.e. rent agreement, established the landlord-tenant relationship between the plaintiff and the defendant for the whole house, i.e. the suit property consisting of eleven rooms with latrine, bathroom and kitchen. In these circumstances, the learned trial court came to the conclusion that the tenancy having been terminated, the plaintiff was entitled to the eviction of the defendant and the possession of the suit property. On the issue of arrears of rent, the learned trial court however found that the agreed rent was only Rs. 125/- p.m. and not Rs. 644/- p.m. as claimed by the plaintiff and accordingly a decree for monthly rent for 36 months at the said rate prior to the filing of the suit was also passed. Aggrieved of the judgment and decree dated 09.02.2009, passed by the trial court, the inevitable first appeal under Section 96 CPC also followed. The learned first appellate court has concurred with the findings of the trial court under its judgment and decree dated 13.10.2010. Hence, this second appeal. 5. On the second appeal under Section 100 CPC coming up before this Court on 09.12.2011, this Court had admitted the appeal and framed the following questions of law : (i) Whether notice under Section 106 of Transfer of Property Act is valid notice ? (ii) Whether eviction suit can be decreed without impleading all the legal successors of actual tenant ? (iii) Whether suit is maintainable against appellant if rented property is held to be HUF property ? (ii) Whether eviction suit can be decreed without impleading all the legal successors of actual tenant ? (iii) Whether suit is maintainable against appellant if rented property is held to be HUF property ? (iv) Whether the contradiction between Exhibit-6, Exhibit-A-1 is a material contradiction having bearing on the decree ? 6. On the application for interim orders, this Court while staying the decree of the courts below during the pendency of the appeal, had directed that during the pendency of the appeal, the defendant pay the plaintiff mesne profit Rs. 2,500/- effective January, 2012. Counsel for the parties state that in compliance with the order dated 09.12.2011, mesne profits as directed by this Court are being paid. 7. On merit, counsel for the defendant would submit that the notice under Section 106 of the Act of 1882 issued by the plaintiff to the defendant was invalid in view of the fact that it related to the whole of the suit property situated at Tulsi Marg, Oswali Mohalla, Madanganj, Kishangarh, District Ajmer even though the defendant was a tenant only in respect of a room, kitchen, latrine and bathroom therein. It has been submitted that the other brothers and sisters of the defendant were the tenants in the other rooms in the suit property by succession on the death of the defendant's father Banshi Lal, who was the actual tenant in the property. And consequently their non-impleadment was fatal to the plaintiff's suit for eviction which should have been dismissed. 8. Mr. R.K. Mathur, Sr. Advocate with Mr. K.C. Sharma, appearing for the plaintiff in this second appeal however would submit that Ex-6, rent agreement, filed by the plaintiff before the trial court, ex facie shows that the tenancy was only of the defendant alone, the rent agreement having been signed by him alone and related to the entire property constituted of eleven rooms, kitchen, latrine & bathroom. And this has so been concurrently held so by the courts below. Sr. Counsel submits that it is not open for the defendant to thus argue that the real tenant was Banshi Lal and subsequent to his death his other children also came into tenancy with the defendant and thus ought to have been impleaded as defendants in the suit for eviction. It is submitted by Sr. Sr. Counsel submits that it is not open for the defendant to thus argue that the real tenant was Banshi Lal and subsequent to his death his other children also came into tenancy with the defendant and thus ought to have been impleaded as defendants in the suit for eviction. It is submitted by Sr. Counsel that the desperate, false and dishonest argument flies in the face of Ex-6 which is a rent agreement between the plaintiff and the defendant. 9. Heard the counsel for the defendant and plaintiff. 10. In my considered opinion, the substantial questions of law as framed by this Court under its order dated 09.12.2011 do not arise in the admitted facts of the case and findings of the courts below. Neither the notice under Section 106 of the Act of 1882 was invalid, nor there was any necessity to implead the legal heirs of Banshi Lal as parties in the suit for eviction laid by the plaintiff for the reason that the rent agreement (Ex-6) in respect of eleven rooms, latrine, bathroom and kitchen was entered into only between the plaintiff and the defendant making the defendant alone the tenant of the entire suit property. Exhibit-6 makes it evident that the tenanted premises were the whole of the property inclusive of eleven rooms, kitchen, latrine and bathroom. The other substantial questions of law formulated by this Court under its order dated 09.12.2011 i.e. as to whether the eviction suit filed was maintainable, if the rented property was HUF property did not even remotely arise from the pleadings of the parties and was therefore quite vacuous and irrelevant to the determination of the suit for eviction laid by the plaintiff. It is trite that ownership/title of the property is quite irrelevant to issues of landlord-tenant relationship. I also do not find that there is any contradiction between Ex-6 and Ex-A-1 on which the fourth substantial question of law was framed by this Court - which question in any event stands subsumed in the first substantial question of law framed by this Court under its order dated 09.12.2011. And that question stands answered earlier in this judgment against the defendant and in favour of the plaintiff. 11. Consequently, I find no force in this second appeal. The same is dismissed.Appeal Dismissed. *******