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2017 DIGILAW 1798 (RAJ)

RAJENDRA KUMAR v. KASTURI BAI

2017-08-10

PRAKASH GUPTA

body2017
JUDGMENT : PRAKASH GUPTA, J. 1. By the instant Civil Second Appeal under section 100 CPC, the plaintiff-appellant seeks to challenge the impugned judgment and decree dated 7th February, 1998 passed by the learned Additional District Judge, Baran in Civil Appeal No. 25/1997 whereby the appeal filed by the plaintiff-appellant against the judgment and decree dated 25th May, 1996 passed by learned Judge (Jr. Div.) Baran in Civil Suit No. 70/1994 has been dismissed and the judgment and decree of the learned trial court has been affirmed. 2. The facts necessary for the decision of this second appeal in short are that appellant-plaintiff Rajendra Kumar filed a civil suit against the defendants for eviction alleging therein that he purchased the shop, description of which was given in the plaint, vide registered sale-deed dated 4th February, 1994. It was averred that the said shop was on rent with Gyarsi Lal since 1960. Gyarsi Lal expired on 19th April, 1992 and the defendants being the legal representatives of original tenant Gyarsi Lal continued to be the tenants in the shop on the monthly rent of Rs. 22.50 per month. It was also alleged that since the shop is required by the plaintiff for his personal and bona fide need for opening Dhaba as he was running his Dhaba in a rented premise for which Rs. 1200/- per month is being paid as rent. Latoor lal, the erstwhile owner of the shop, sent a registered notice to the defendants regarding sale of the shop to the plaintiff, which was duly received by the defendants. Thus, it was prayed that the suit of the plaintiff for eviction be decreed with cost. 3. The defendants-respondents resisted the suit by filling written statement. In the written statement they did not dispute the fact that Gyarsi Lal was a tenant in the disputed shop and regarding the death of Gyarsi Lal and also the fact that Latoor Lal informed them regarding sale of the disputed shop to the plaintiff. It was also stated that the entire family of the defendants depends upon the income from the shop and if the disputed shop is vacated, the entire family will be ruined. It was also pleaded that, since the plaintiff purchased this disputed shop on 04/02/1994 and had filed the present suit on 28/02/1994, therefore the suit is premature. 4. It was also stated that the entire family of the defendants depends upon the income from the shop and if the disputed shop is vacated, the entire family will be ruined. It was also pleaded that, since the plaintiff purchased this disputed shop on 04/02/1994 and had filed the present suit on 28/02/1994, therefore the suit is premature. 4. On the basis of the pleadings of the parties, the learned trial court framed as many as 8 issues. 5. The learned trial court decided issue No.7 as a preliminary issue which was to the effect 'whether the suit of the plaintiff was premature' ? 6. On the basis of the averments made in the plaint, the learned trial court observed that the plaintiff purchased the disputed shop through registered sale deed dated 4th February, 1994. At that time, the defendants were tenants in the disputed shop. Therefore, the tenancy of the plaintiff started w.e.f. 4th February, 1994 and in view of the bar of Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (for short the Act of 1950) the suit filed by the plaintiff within five years of the commencement of the tenancy, was not maintainable. Hence, the learned trial court dismissed the suit filed by the plaintiff vide impugned judgment and decree dated 25th May, 1996. Against the judgment and decree of the learned trial court, the plaintiff-appellant filed Civil Appeal before the learned appellate court below which was also dismissed vide impugned judgment and decree dated 7th February, 1998. 7. Hence, the present appeal by the plaintiff appellant. 8. This Court vide order dated 18th May, 1998 admitted the appeal formulating the following substantial question of law :- "Whether a new tenancy is to be deemed to commence when the plaintiff now appellant purchased the suit shop on 4.2.94 or whether by this purchase he just stepped into the shoes of the then existing landlord and the tenancy is to be deemed to be subsisting from the date the deceased father of the respondents (as whose legal representatives they were impleaded on his demise) was originally inducted as a tenant in the premises." 9. Heard, learned counsel for the parties. 10. It is argued by the learned counsel of the appellant Mr. Heard, learned counsel for the parties. 10. It is argued by the learned counsel of the appellant Mr. Abhi Goyal that at the time of purchase of the disputed shop by the plaintiff from the erstwhile owner Latoor Lal i.e. on 4th February, 1994, the defendants were tenants in the disputed shop and even after purchase of the disputed shop, there was no change in the tenancy. Neither the monthly rent was increased nor a fresh tenancy agreement was executed between the plaintiff and defendants and the old tenancy continued. There was no surrender of possession of the suit shop by the tenant in favour of the landlord and the original-tenant Gyarsi Lal was inducted in the disputed shop in 1960. In absence of such surrender, there can be no question of creation of a new tenancy. In the instant case, the tenancy commenced from 1960 and period of five years came to an end in the year 1965, and, therefore, the bar imposed by Section 14(3) of the 'Act of 1950' was inapplicable. 11. It is further argued by the learned counsel for the plaintiff-appellant that the erstwhile owner of the disputed shop informed the defendants through a registered notice regarding sale of the disputed shop to the plaintiff. The defendants did not respond the same and accepted the plaintiff as owner of the disputed shop. Both the learned courts below have failed to consider the aforesaid legal position and thus, committed illegality and error in dismissing the suit as well as appeal of the plaintiff appellant on the ground that the suit was premature as the same was filed within five years of commencement of the tenancy. 12. On the strength of the above arguments, learned counsel for the plaintiff appellant has prayed that the judgment and decree of both the learned courts below deserve to be quashed and set aside and the matter may kindly be remanded back to the learned trial court for afresh decision of the suit on the merits of the case. In support of his arguments, Mr. Abhi Goyal, learned counsel for the appellant has placed reliance on the judgment of this Court in Govind Narain v. Mohan Singh 1992(1) WLC (Raj.) 504. 13. In support of his arguments, Mr. Abhi Goyal, learned counsel for the appellant has placed reliance on the judgment of this Court in Govind Narain v. Mohan Singh 1992(1) WLC (Raj.) 504. 13. Shri Deepak Goyal, learned counsel appearing for the defendants-respondents although has supported the impugned judgments but has no objection if the matter is remanded back to the learned trial court for afresh decision of the suit on merits. 14. In the case of Govind Narain (supra) learned Single Bench of this High Court after considering various rulings held as below:- "The principles of law which emerges from the above referred decisions is that mere increase or reduction in the rent by itself is not sufficient to imply the surrender of the existing lease and the grant of new tenancy and even if the mode and time of payment is changed, the supersession of existing tenancy cannot be inferred ordinarily. However, if the terms of the tenancy have changed and a new tenancy agreement is entered into or a new lease is executed by the tenant, the existing tenancy will be deemed to have been surrender and the fact that the tenant continued to remain in possession will be of no consequence." 15. In the instant case, in para No.2 of the plaint, the plaintiff appellant averred that since 1960 the disputed shop was on rent with Gyarsi Lal son of Laxman Lal. In their written statement, the defendants have admitted this fact. They have not come with this case that a fresh tenancy was created in between them and the plaintiff-appellant. Rather they have stated that a sham sale deed was executed with a motive to get a decree of eviction against them. 16. In the facts and circumstances of the present case, I am of the view that there is neither supersession of the existing tenancy nor creation of a new tenancy due to purchase of the disputed shop by the plaintiff and therefore the bar of Section 14 (3) of the Act of 1950 is not attracted. By purchase of the disputed shop, the plaintiff stepped into the shoes of the then landlord Latoor Lal and the tenancy was subsisting from the date, the deceased father of the defendants was originally inducted as a tenant in the shop. 17. By purchase of the disputed shop, the plaintiff stepped into the shoes of the then landlord Latoor Lal and the tenancy was subsisting from the date, the deceased father of the defendants was originally inducted as a tenant in the shop. 17. In view of the above, both the learned courts below have committed material irregularity and illegality in dismissing the suit in view of the bar contained in Section 14(3) of 'the Act of 1950'. Therefore The suit of the plaintiff is required to be decided on merits. 18. Hence, the substantial question of law formulated vide order dated 18th May, 1998 is answered in affirmative. 19. In the result, the second appeal deserves to be allowed and the same is allowed. Impugned judgments and decree of both the learned courts below are set aside and the matter is remanded back to the learned trial court for afresh decision on merits of the case. Both the parties are directed to appear before the trial court on 7th October, 2017. 20. Since the suit was filed in the year 1994, therefore the trial court is directed to decide the same expeditiously.