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2018 DIGILAW 1538 (RAJ)

Rupa Ram Mali v. Sakha Ram Kumhar

2018-07-20

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT Pushpendra Singh Bhati, J. - The petitioners have preferred this writ petition praying for the following reliefs :- It is, therefore, humbly prayed that this writ petition in nature of mandamus may kindly be issued and by an appropriate, order or direction and ; (i) The present writ may kindly be allowed and the order dated 29.05.2018 (Annex.10) may kindly be quashed and set aside. (ii) The application filed by the petitioners under Order 14, Rule 5 CPC may kindly be allowed and issue no.4 may kindly be deleted." 2. The bone of contention is that the framing of issue in an eviction suit where the petitioners are landlords and the respondents are tenants. The petitioners moved an application under Order 14, Rule 5 CPC for deletion of issue no.4 which reads as follows :- 4 - 3TFTT WT 3^4 ^ FTPft tl 3RT; ^ M 11- yRl=n 3. Learned counsel for the petitioners submits that since the suit is essentially for eviction of the tenant, therefore, the issue no.4 as quoted above will fundamentally change the nature of the suit and the focus of the proceedings will be the title of the petitioners, which cannot be permissible under the law. 4. Learned counsel for the respondents have opposed the submissions on the ground that though the title of the property cannot be gone into in the eviction suit but if incidentally there is a dispute regarding the ownership of the landlord, then it can be incidentally gone into. They relied upon the judgment of Hon'ble Supreme Court in the case of Ranbir Singh vs. Asharfi Lal reported in (1995) 6 SCC 580 , the relevant para 9 whereof is reproduced hereunder :- "9. It may be pointed out that it is well settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title is disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In L. I. C. vs. India Automobiles & Co. 1990 (4) SCC 286 at para 21 this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prime facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bonafide the Court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bonafide in the circumstances of the case." 5. After hearing the counsel for the parties, this Court is of the opinion that the issue no.4 has to be completely deleted or substituted by an issue which could reflect incidental finding of the Court on the title of the landlord. 6. In view of above as well as the precedent law, the present writ petition is disposed of with a direction to the learned Court below to accept the application of the petitioner for substituting the issue no.4 so as to determine the incidental title of the landlord. 7. However, a cost of Rs. 5,000/- is imposed on the petitioners for the delay of 10 years to be paid to the respondents.