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2019 DIGILAW 484 (MP)

Hukum Chand v. Nagar Palika Parishad Morena

2019-07-04

G.S.AHLUWALIA

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JUDGMENT : G.S. Ahluwalia, J. This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 5.3.2001 passed by Fourth Additional District Judge, Morena in Civil Appeal No.11-A/2000 thereby affirming the judgment and decree dated 29.2.2000 passed by First Civil Judge Class-II, Morena in Civil Suit No.59-A/1999 by which the suit filed by the appellants has been dismissed. 2. The necessary facts for the disposal of the present appeal according to the plaintiff is that the Municipal Council, Morena had constructed some shops at Railway Station Road, Morena for the purposes of letting them out. They were to receive the advance rent for the period of 10 years at the rate of Rs. 30/- per month and after completion of the construction, the possession was to be handed over. It was agreed that for the first 10 years no rent would be chargeable as the same has been collected in advance and after 10 years, the rent @ Rs. 30/- per month would be payable. It was pleaded that Ramcharanlal had deposited the amount after taking the same from plaintiffs No.1 and 2 and was deposited in the name of plaintiffs No.4 and 5. The shop No.24 was taken on rent after payment of the advance rent for the period of 10 years and an agreement was executed on 5.11.1971 and the shop was opened by plaintiffs No.4 and 5 under the guardianship of Ramcharan. However, the names of the plaintiffs No.1 and 2 were not recorded in the records of the Municipal Corporation and the names of plaintiffs No.3 to 5 continued to be recorded in the records of the Municipal Corporation and, therefore, they have been joined in the suit. The plaintiffs no.1 and 2 sublet the shop to Murarilal @ Rs. 60/- per month with a clear stipulation that whenever the plaintiffs would require the shop for their personal requirement, then he would immediately hand over the vacant possession of the same. The plaintiffs no.1 and 2 sublet the shop to Murarilal @ Rs. 60/- per month with a clear stipulation that whenever the plaintiffs would require the shop for their personal requirement, then he would immediately hand over the vacant possession of the same. When the plaintiffs No.1 and 2 instructed Murarilal to vacate the shop, then he did not vacate the shop and, accordingly, after terminating the tenancy, they instituted a suit for eviction which was registered as Civil Suit No.84-A/1974 and by judgment and decree dated 20.3.1975 a decree for eviction was passed which was unsuccessfully challenged by Murarilal before the First Appellate Court and his appeal was dismissed by judgment and decree dated 19.11.1976 and which is the subject matter of Second Appeal No.377/1976 before the High Court which is still pending and, therefore, the execution of decree is under abeyance. Although the entire facts were within the knowledge of the Municipal Council but the Municipal Council by its resolution No.235 dated 2.9.1977 decided to let out the shop to Murarilal. However, he was in possession of the shop in the capacity of a tenant and after the termination of his tenancy, his possession was illegal and was merely an encroacher and before passing the resolution, no opportunity of hearing was given to the appellants. It was further pleaded that the defendant No.1 had no right to terminate the rights of the plaintiff by the same resolution and such resolution passed by the defendant No.1 comes within the definition of Contempt of Court as the dispute was pending. It was pleaded that since the status of the plaintiff is like a tenant, therefore, the defendant No.1 had no right to enter into an agreement of tenancy with any other person. During the pendency of the suit, the plaint was amended and it was pleaded that the defendant No.1 with his dishonest intention has now handed over the possession to the defendant No.4 and the defendant No.4 after depositing the rent has handed over the possession to the defendant No.5 whereas the defendants No.1 and 3 had no right or title. Thus it was prayed that since the decree of eviction has already been passed against the defendant No.2/Murarilal, therefore, the defendant No.3 is also bound by the same. 3. Thus it was prayed that since the decree of eviction has already been passed against the defendant No.2/Murarilal, therefore, the defendant No.3 is also bound by the same. 3. The defendant No.1 filed its written statement and pleaded that the plaintiff has made a general statement with regard to the conditions on which the shops were constructed but in fact the conditions for each shops were different and the shops were constructed in the year 1966. It was pleaded that the plaintiff No.3 Ramcharan Lal had applied for grant of tenancy and only he had deposited the amount and the contention that the plaintiff No.3 Ramcharan Lal had deposited the amount of Rs. 3600/- after taking the money from the plaintiffs No.1 and 2 was denied. It was admitted that the Municipal Council has executed an agreement with the plaintiff No.3. It was further pleaded that the tenant had no right to transfer his rights and in clause 5 of the agreement, it was specifically mentioned that in case of such illegal transfer, the tenancy would automatically come to an end. It was also pleaded that the application made by the plaintiffs No.1 and 2 was unauthorized and, therefore, there was no reason to consider the same. It was further submitted that no rights had accrued in favour of the plaintiffs No.1 and 2 and even otherwise in the light of clause 5 of agreement dated 16.01.1968, the agreement had already come to an end in view of illegal transfer. The Municipal Council is not aware of any agreement between plaintiffs No.1 and 2 and defendant No.2, even otherwise it is not binding on the defendant No.1. It was further pleaded that in a suit for eviction, the defendant No.1 was not a party and has nothing to do with the same. The resolution dated 2.9.1977 passed by the defendant No.1 was correct and has further stated that the tenancy of plaintiffs No.1 and 2 was never accepted by the defendant No.1. There is no privity of contract between the plaintiffs No.1 and 2 and the defendant No.1 and, therefore, no question for evicting or terminating the rights of the plaintiffs arise. 4. There is no privity of contract between the plaintiffs No.1 and 2 and the defendant No.1 and, therefore, no question for evicting or terminating the rights of the plaintiffs arise. 4. In the additional submissions it was stated that in fact plaintiff No.3 had filed an application for allotment of shop and he had deposited the amount of Rs.3600/- and, accordingly agreement dated 16.1.1968 was executed between the plaintiff No.3 and the defendant No.1 and the plaintiffs No.1 and 2 were not in picture and the agreement dated 16.1.1968 does not give any right to the plaintiffs No.1 and 2. As per clause 5 of the agreement, the plaintiff No.3 had agreed that he would not sublet the shop No.24 to anybody and as per clause 8 of such agreement, the lease/tenancy automatically stood cancelled and, therefore, no rights were left with plaintiff No.3. When the defendant No.1 came to know that the plaintiff No.3 has already left his rights and one Murarilal is in possession of the property in dispute, accordingly, a notice dated 10.10.1974 was issued. However, on 20.11.1974 the plaintiff No.3 refused to accept the said notice and consequently the notice was affixed on his house on 26.11.1974. Even after the service of notice, the plaintiff No.3 did not show any interest and did not respond and, therefore, it is clear that he had left his rights. The original agreement of lease/tenancy was for a period of 10 years i.e. from 28.4.1967 to 23.8.1977 and the said period has come to an end on 23.8.1977 and, therefore, now no rights are left with the plaintiffs. Accordingly, it was prayed that the suit may be dismissed. 5. The defendant No.2 has also filed his written statement and denied the plaint averments. 6. The defendants No.3 and 4 also filed their separate written statement and denied the plaint averments. 7. The Trial Court after framing issues and recording evidence of the parties dismissed the suit filed by the plaintiff. 8. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants filed an appeal which too has suffered dismissal by judgment and decree dated 5.3.2001 passed by Fourth Additional District Judge, Morena in Civil Appeal No.11-A/2000. 9. The Trial Court after framing issues and recording evidence of the parties dismissed the suit filed by the plaintiff. 8. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants filed an appeal which too has suffered dismissal by judgment and decree dated 5.3.2001 passed by Fourth Additional District Judge, Morena in Civil Appeal No.11-A/2000. 9. Challenging the judgment and decree passed by the Courts below, it is submitted by the counsel for the appellants that unless and until the lease deed granted in favour of the plaintiff No.3 is specifically cancelled and the possession is taken back from him, the defendant No.1 was not right in passing a resolution dated 2.9.1977. 10. Heard the learned counsel for the appellants. 11. This appeal has been admitted on the following substantial question of law: "Whether respondent No.1 can grant the lease of suit shop to respondents No.2, 3 and 4 without duly terminating the lease already granted to respondents No.5 and 6, without taking possession of the suit shop? 12. It is the case of the plaintiffs themselves that they had parted with the possession of the shop No.24 which was leased out to the plaintiff No.3 for a period of 10 years. 13. From the plaint averments itself it is clear that the plaintiffs have already parted with their possession. 14. It is the case of the plaintiffs themselves that the lease deed was executed for a period of 10 years which had started from the month of August 1967. Thus it is clear that the lease deed executed in favour of the plaintiff No.3 had already come to an end in the month of August 1977. It appears that by resolution dated 2.9.1977, the name Murarilal was substituted in place of plaintiff No.3. The resolution dated 2.9.1977 is Ex.P/5. Thereafter by resolution dated 13.11.1980 Ex.P/6, the name of defendant No.2 Gajendra Singh was mutated in place of Murarilal and later on the name of Brijnandan has been mutated in place of Gajendra Singh. It is the case of defendant No.1 that as per clause 5 of the lease deed the plaintiff had agreed not to part away with the possession of the property in dispute in any manner. It is the case of defendant No.1 that as per clause 5 of the lease deed the plaintiff had agreed not to part away with the possession of the property in dispute in any manner. As per clause clause 8 of the said lease deed, the lease deed would automatically come to an end in case of any violation of the term of the lease deed. The plaintiffs have not filed the copy of the lease deed nor the defendants have filed. Thus the lease deed executed between defendant No.1 and plaintiff No.3 is not on record. However, in view of the plaint averments that the lease deed was for a period of 10 years which had started from the month of August, 1967, it is clear that by efflux of time, the lease deed executed in favour of the plaintiff No.1 had automatically come to an end in the month of August, 1977. 15. It is not the case of the plaintiff that by virtue of any condition in the lease deed, he was entitled for extension of lease deed. Further in view of the plaint averments itself as the plaintiff No.3 had already parted with the possession of the lease deed, this Court is of the considered opinion that the lease deed executed in favour of the plaintiff No.3 has already expired by efflux of time. Since the period of lease deed was already over and it is the case of the plaintiffs themselves that one Murarilal was in possession of the shop No.24, therefore, it is was not necessary for the defendant No.1 to take back the possession from the plaintiffs after terminating the lease granted to the plaintiff No.3. 16. It is the case of the appellants that the agreement of lease deed was executed in favour of plaintiff No.3, on behalf of respondents No.5 and 6. In absence of copy of lease deed executed between the plaintiff No.3 and the defendant No.1, this Court is of the considered opinion that it cannot be held that the lease deed was executed on behalf of respondents No.5 and 6. In absence of copy of lease deed executed between the plaintiff No.3 and the defendant No.1, this Court is of the considered opinion that it cannot be held that the lease deed was executed on behalf of respondents No.5 and 6. Further, as the plaintiff No.3 Ramcharan Lal was under obligation to comply the clause 5 of the lease deed and in view of the plaint averments that the plaintiff No.3 had already parted with the possession of the shop with Murarilal, this Court is of the considered opinion that the substantial question of law framed by this Court cannot be answered in favour of the appellants. 17. Accordingly, the judgment and decree dated 29.2.2000 passed by First Civil Judge Class-II, Morena in Civil Suit No.59-A/1999 and the judgment and decree dated 5.3.2001 passed by Fourth Additional District Judge, Morena in Civil Appeal No.11-A/2000 are hereby affirmed. 18. The appeal fails and is hereby dismissed.