Babu Lal vs Shubh Karan and Others

Dr. Vineet Kothari, J.

This second appeal is arising out of the judgment and decree dated 27.04.1998 passed by the learned Additional District Judge, Nohar, District Hanumangarh in Civil Appeal No. 3/1996 (7/1990, 26/1991) "Shubh Karan (deceased) through LRs Smt. Jatan Devi Baid and Anr. vs. Babu Lal S/o. Kundan Lal Agarwal" who allowed the appeal filed by the present respondents-plaintiff and directed the defendant-tenant to hand over the vacant possession of the suit property and set aside the judgment and decree dated 19.02.1990 passed by the learned Munsif and Judicial Magistrate First Class in Civil Original Suit No. 46/1981 "Jai Chand Lal through Power of Attorney Shubh Karan and Ors. vs. Babu Lal" by which, the learned Munsif had dismissed the suit filed by the respondents-plaintiffs-landlord seeking eviction of the appellant-defendant-Babu Lal from the suit shop situated at Bhadra, District Hanumangarh and recovery of arrears of rent. The present second appeal has been filed by the defendant-appellant, who was the defendant-tenant before the learned Trial Court, against the decree of eviction granted by the First Appellate Court of Additional District Judge, Nohar, District Hanumangarh in favour of the plaintiffs-landlord on the ground of renouncement of tenancy and character of the relationship in respect of the suit shop situated at Bhadra, District Hanumangarh which was initially let out to the defendant-tenant Babu Lal under the Rent Note Ex. 1 dated 25.07.1979 on a monthly rent of Rs. 150/-. The eviction suit number 46/1981 titled as "Jai Chand Lal son of Udai Chand Baidh and Ors. through Power of Attorney Shubh Karan", his son has filed the present suit against the tenant-defendant Babu Lal which was dismissed by the learned Trial Court on 19.02.1990 finding that no case of subletting, parting with possession of the suit shop or non-user of the suit property was made out by the plaintiff.

The Appellate Court of learned Additional District Judge, Nohar, District Hanumangarh who, had allowed the appeal and decreed the suit on 27.04.1998 finding that there was a renouncement of character of tenancy by the tenant-defendant Babu Lal and while extending the benefit of Section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, granted the decree of eviction against the defendant-tenant Babu Lal.

Being aggrieved by the judgment and decree dated 27.04.1998 passed by the learned First Appellate Court below, the defendant-tenant Babu Lal filed the present second appeal before this Court which was admitted for consideration by the coordinate bench of this Court and the following substantial question of law was framed by this Court:-

"Whether a plea taken by the tenant that actually he was not a tenant alone, but he was a member of the Hindu Undivided Family who was the tenant through its karta would amount to renunciation of character as a tenant by the tenant within the meaning of clause (f) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act?"

The learned counsel Mr. Sanjeev Johari appearing for the appellant-defendant-tenant Babu Lal submitted that there was no renouncement of tenancy on the part of the defendant-tenant since the suit shop in question was taken on rent on 24.07.1978 by his father Kundan Lal on a monthly rent of Rs. 125/- and the Exhibit-1 document dated 25.07.1979 was executed by the defendant Babu Lal since his father had gone away from the town on that date and since his father had taken the suit shop in question in tenancy in the capacity of Karta of his Hindu Undivided Family (''HUF'') of which, the present defendant Babu Lal was also a member of the said family, therefore, there was no renouncement of character of tenancy of the suit shop in question by the person, who is a member of the Hindu Undivided Family, as son of the original tenant, therefore, the Appellate Court has erred in giving an eviction decree under Section 13(1)(f) of the Act of 1950. He, therefore, submitted that the substantial question of law as framed and as quoted herein above deserves to be answered in favour of the defendant-tenant and the decree of eviction deserves to be set aside.

On the other hand, the learned counsels Mr. S.L. Jain and Mr. Abhinav Jain appearing for the plaintiffs-respondents vehemently opposed the submissions made by the learned counsel for the appellant-defendant and drew the attention of the Court towards the document Exhibit-1, the Rent Note, which was executed by the defendant-tenant Babu Lal, which is reproduced herein below for ready reference:-

The learned counsel Mr. S.L. Jain, therefore, contended that there was no tenancy in favour of the father of the present defendant-Babu Lal namely, Kundan Lal and no document was placed on record by the defendant having the alleged date 24.07.1978 creating a tenancy by his father Kundan Lal in the capacity of Karta of Hindu Undivided Family of which, the defendant-tenant Babu Lal claims to be a member. The learned counsel Mr. S.L. Jain also submitted that admittedly the tenancy was created in favour of the present appellant-defendant Babu Lal and his stand before the Courts below that the suit shop was taken in tenancy as Karta of Hindu Undivided Family by his father namely, Kundan Lal, is contrary to the aforesaid documentary evidence, the Rent Note dated 25.07.1979 and which stand of the defendant-tenant Babu Lal was rightly not believed by the learned First Appellate Court and rightly the eviction decree was granted under Section 13(1)(f) of the Act of 1950 in favour of the plaintiffs-respondents ad the same deserves to be upheld by this Court and the substantial question of law as framed and quoted herein above deserves to be answered against the defendant-tenant Babu Lal.

I have heard the learned counsels for the parties at some length and perused the records of both the Courts below including the judgments and decrees of the Courts below. In the present case, the eviction of the defendant-tenant Babu Lal was essentially sought on the basis of non-user of suit property, or parting with the possession and the renouncement of character of tenancy of the suit shop, therefore, the substantial question of law, as quoted herein above, is to be answered by this Court on the basis of discussion on Issue No. 5 decided by the learned Courts below. The learned Trial Court had decided the Issues Nos. 1 and 5 simultaneously in the following manner:-

The learned First Appellate Court in its judgment and decree dated 27.04.1998 also decided the Issue No. 5 in favour of the respondents-plaintiffs-landlord in the following manner:-

From the aforesaid Findings of both the Courts below which have been concurrent as far as Issue No. 5 is concerned, the Courts below have ultimately found and rightly so, on the basis of Exhibit-1, the Rent Note dated 25.07.1979, executed by the Babu Lal and there was nothing on record to show that the tenancy of the suit shop in question was taken by the Karta of Hindu Undivided Family, i.e., the father of the present defendant-tenant namely, Kundan Lal. On perusal of the record, it is noticed that the Rent Note document dated 25.07.1979 neither refers that the tenancy was taken in the year 1978 nor does it indicate that the same was executed on behalf of Shri Kundan Lal, the father of the present defendant or by the defendant Babu Lal, as a member of the Hindu Undivided Family of Shri Kundan Lal. The stand taken by the defendant-tenant through out before the Courts below and before this Court also thus appears to be contrary to the documentary evidence, Exhibit-1, the Rent Note. As a matter of fact, the concurrent findings of fact recorded by the two Courts below that the defence taken by the defendant-tenant of his not renouncing the character of tenancy of the suit shop in question was contrary to the documentary evidence, the Rent Note dated 25.07.1979, are the findings of facts and could not be said to be perverse and apparently the same did not even given rise to a substantial question of law arising out of the said judgments and decrees of the learned Courts below on the basis of the findings of facts so arrived at after appreciation of the relevant evidence on record. However, since the aforesaid substantial question of law has been framed in this regard by a co-ordinate bench of this Court, the said question is apparently required to be answered in favour of the plaintiffs-landlord and against the defendant-tenant Babu Lal because it is clear from the documentary evidence that there was no tenancy in favour of the father of defendant namely, Kundan Lal, as Karta of the Hindu Undivided Family and this fact is clear from the document Exhibit-1, the Rent Note dated 25.07.1979, executed by the defendant-tenant that the tenancy of the suit shop in question was only in favour of the defendant Babu Lal only and who denied the same in his statement, therefore, there was a renouncement of tenancy by him giving rise to the ground of eviction under Section 13(1)(f) of the Act.

In fact, a bare perusal of the rent note Exhibit-1 dated 25.07.1979 would show that the defendant-Babu Lal had taken the suit shop in question for a period of one year on a monthly rent of Rs. 150/- and after one year from 25.07.1979, he was supposed to hand over the vacant possession of the suit shop in question to the respondent-landlord. After the year 1979, it is uptil now only the litigation and the waiting period for the respondent-plaintiff-landlord to get the possession of the suit shop and the defendant-tenant has enjoyed the suit shop through out on a paltry rent of Rs. 150/- per month for the years together which was increased by the orders of the Courts and it is now at Rs. 1250/- per month which is being paid by the defendant-tenant. The defence taken by the defendant-tenant was clearly untenable and was not sustainable being contrary to the document evidence Ex. 1 and the learned Courts below have rightly decided and given their findings on Issues Nos. 1 and 5 in favour of the plaintiff.

In view of the aforesaid circumstances, the present second appeal filed by the defendant-tenant-Babu Lal is liable to be dismissed and the question, as framed, is hereby answered in favour of the respondents-landlord.

Accordingly and in view of the above discussion, the present second appeal filed by the appellant-defendant-tenant Babu Lal stands dismissed. A copy of this judgment be sent to both the learned courts below and both the parties forthwith. In the circumstances of the case, it is directed that the appellant-defendant-tenant shall now hand over the peaceful and vacant possession of the suit shop to the respondents-plaintiffs within a period of six months from today i.e. on or before 31.08.2015 and shall pay mesne profit @ Rs. 5,000/- per month (Rupees Five Thousand p.m.) commencing from March, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent/plaintiff also and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the respondents/plaintiffs within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondents-plaintiffs within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court.