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2015 DIGILAW 1 (RAJ)

Tara Chand v. Satya Prakash

2015-01-05

NISHA GUPTA

body2015
JUDGMENT : 1. This second appeal under Section 100 CPC has been filed against the judgment and decree dated 4.7.2014 passed by Additional District Judge, Dholpur in Civil Appeal No. 4/2013 confirming the judgment and decree dated 12.1.2012 passed by Civil Judge (Senior Division) Dholpur, in Civil Suit No. 12/2009. 2. The relevant facts giving rise to this appeal are that plaintiff respondent No.1 filed a suit for eviction and arrears of rent on the ground that the disputed shop was given on rent to defendant respondent No. 2. On 15.9.2000, the plaintiff respondent came to know that the shop has been rented to appellant without his permission. The appellant then informed that he is the owner of the shop, hence on the ground of default of payment of rent and subletting, the suit for eviction has been filed. In written statement respondent No.2 has pleaded that shop in dispute was taken on rent from Buchi Ram and after the death of Buchi Ram, the shop was purchased from his daughter Harpyari by registered sale deed and thereafter suit property has been sold to Rajeshwari Devi, wife of appellant. Appellant has also pleaded that he is the owner of the property. The court below has decreed the suit on the ground of sub-letting and appeal has also been dismissed, hence this second appeal. 3. The contention of the appellant is that both the courts below have erred in deciding issue No.4 against the appellant as appellant is admittedly not tenant in the disputed property. His wife has purchased the shop from respondent No.2 and he is having the possession of the property as owner. The property has been let out on consideration has not been proved. The admission of the tenant-in-chief cannot be used against him after the sale dated 15.4.2000 on the strength of which the wife of the present appellant has become owner of the suit property. Partition between Gavrinandan and Buchi Ram has not been proved, hence the appellant has independent right from tenant-in-chief and he cannot be evicted from the suit property.Per contra, the contention of the respondent plaintiff is that tenant-in-chief has not preferred any appeal hence appeal by sub-tenant is not maintainable. Suit property has been purchased by Buchi Ram and Gavrinandan. Partition between Gavrinandan and Buchi Ram has not been proved, hence the appellant has independent right from tenant-in-chief and he cannot be evicted from the suit property.Per contra, the contention of the respondent plaintiff is that tenant-in-chief has not preferred any appeal hence appeal by sub-tenant is not maintainable. Suit property has been purchased by Buchi Ram and Gavrinandan. Thereafter by way of family settlement in 1966, the property came in the share of Gavarinandan and vide agreement dated 7.5.1973, it has been rented to father of respondent No.2 Sripati. Harpyari was not having any right to sell the property. Buchi Ram in his statement, Ex.31 has specifically admitted the fact that the property belongs to plaintiff respondent. The tenant-in-chief Sripati has also served a notice on plaintiff respondent, Ex.29 which clearly proved the relationship of land lord and tenant between the parties. Any sale deed executed against the rights of the plaintiff-respondent is ab initio void and there is no need to pray for the cancellation of the sale deed. Ex.2, rent receipt is an admitted document by respondent No.2 and other rent receipts have also been proved and rightly relied upon by the courts below. Relationship of land lord and tenant between the parties is a finding of fact and could not be interfered in this second appeal. The alleged sale deed has not been even exhibited before the court below. The appellant is in shoe of the tenant-in-chief and bound by his admission which has been made by the predecessor-in-title and there is no privity of contract between the land lord and the present appellant, hence the appeal is not maintainable. 4. Heard the learned counsel for the parties and perused the judgments and decree under challenge as well as the original record of the case. 5. The suit has been filed on the contention that property was rented out to respondent No.2 who has assigned the possession to the present appellant. Issue No.1 has specifically been framed as regards to the relationship of land lord and tenant between respondent No.1 and 2 and it has been answered in affirmative by both the courts below. Apart from it, tenant-in-chief Sripati has also admitted in his cross-examination that he has took the premises on rent from plaintiff respondent No.1. Ex. Issue No.1 has specifically been framed as regards to the relationship of land lord and tenant between respondent No.1 and 2 and it has been answered in affirmative by both the courts below. Apart from it, tenant-in-chief Sripati has also admitted in his cross-examination that he has took the premises on rent from plaintiff respondent No.1. Ex. 2, rent receipt and Ex.29 notice are admitted documents between the land lord and tenant and both the courts below have considered the issue of relationship of land lord and tenant between respondent No.1 and 2. The contention of the appellant is that he is not bound by the decree and stress has been given on the sale deed which has been executed in favour of wife of the appellant but admittedly, no such sale deed has been presented before the courts below, hence the whole contention of the appellant is baseless and furthermore the plea of ownership in suit for eviction is unknown and cannot be entertained. The appellant has relied upon Shama Prashant Raje v. Ganpatrao & ors., (2000) 7 SCC 522 ; S.F. Engineer v. Metal Box India Ltd. & Anr., (2014) 6 SCC 780 ; Resham Singh v. Raghbir Singh, where principle as regards subletting has been explained and it has also been categorically held that subletting can be proved on the basis of legitimate inference as the sub -tenancy is created in clandestine manner. Here in the present case, admittedly respondent No.2 was tenant in the premises and now the appellant is in possession of the property, hence the burden was on the appellant to prove nature of his possession. The plaintiff respondent has rightly proved the fact that possession of the property has been assigned to the appellant and court below has rightly held that plaintiff has proved the ground for eviction enumerated in Section 13 (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The respondent has relied upon Joginder Singh Sodhi v. Amar Kaur, 2005 (1) WLC Raj. 121 wherein it has been held that payment of rent by sub-tenant can be inferred and same need not be proved by affirmative evidence. Same view has been taken in S.F. Engineer (supra) where the Apex Court has held that sub-letting can be proved on the basis of legitimate inference. 121 wherein it has been held that payment of rent by sub-tenant can be inferred and same need not be proved by affirmative evidence. Same view has been taken in S.F. Engineer (supra) where the Apex Court has held that sub-letting can be proved on the basis of legitimate inference. Here in the present case, both the courts below have concurrently held that the appellant is in possession of the property. Plea of sale has not been proved, hence it could rightly be concluded that the possession of the property has been assigned to third person and issue No.4 has rightly been decided against the appellant and further the tenant -in- chief has admitted the fact that he is in relationship of tenant with the plaintiff land lord and this fact has also been amply proved by the plaintiff. This is finding of fact concurrently answered in favour of plaintiff, hence no interference is needed in this second appeal and respondent has relied upon Narayan & Anr. v. Smt. Kalan Bai, RLR 1985 Raj. 231 and Kasturchand v. Raman Rajan & Anr., AIR 1994 SC 217 . 6. The appellant has relied upon M.B. Ramesh (D) by LRs v. K.M. Veeraje Urs (D) by LRs & ors., wherein it has been held that whether a particular question is a substantial question of law or not depends on the facts and circumstances of each case. Here in the present case after considering the rival contentions and evidence produced, both the courts below have concurrently held that relationship of land lord and tenant exists between the plaintiff and respondent No.2 -defendant No.1 and no perversity has been shown in the findings arrived at by the courts below. Nothing has been shown that any relevant evidence has been non-considered or erroneous approach has been taken by the courts below. 7. The other contention of the appellant is that without seeking relief for cancellation of sale deed, the suit is not maintainable and reliance has been placed on Kamruddin v. Bihari Lal, 2007 (2) WLC (Raj.) 243. In Kamruddin (supra), the suit was for possession but here in the present case only question was whether relationship of land lord and tenant exists between the parties or not which has been answered by both the courts below, hence there was no need to file suit for cancellation of sale deed by the plaintiff. In Kamruddin (supra), the suit was for possession but here in the present case only question was whether relationship of land lord and tenant exists between the parties or not which has been answered by both the courts below, hence there was no need to file suit for cancellation of sale deed by the plaintiff. Furthermore, sale deed has not been placed on record. 8. The other contention of the appellant is that partition between Gavrinanadan and Buchi Ram has not been proved. In the suit for eviction issue of partition was not relevant. The only issue was in reference to relationship of tenant and land lord between the parties which has been rightly considered. The onus was on the appellant to prove his nature of possession which has not been proved by the appellant and courts below have rightly held that the possession of the property has been assigned to other person, hence there is no substance in the contention raised by the appellant.Looking to the concurrent finding of both the courts below which are based on reasoning and appreciation of evidence, no substantial question of law has been raised in this appeal.The appeal lacks merit and is dismissed.