Bashi Ram vs Lakhmi Chand

Bakshi Ishwar Singh, J.—This is second appeal against the order of the District Judge, Poonch, dated 19-2-1972 whereby the order of the

Sub Judge, Rajouri, dated 28-7-1971 was reversed.

This appeal arises out of execution proceedings and the facts giving rise to the same can be summarised as under:-

The respondent is the owner of a house situated at Rajouri which was in occupation of the appellant as a tenant paying Rs. 8/- per mensem as

rent. The plaintiff-respondent filed a suit for ejectment on the ground that the suit-house was required by him for his personal occupation. After

trial, the Sub Judge, Rajouri, decreed the suit on 20-8-1969 and ordered the ejectment of the appellant, after one month of the passing of the

decree. The appellant went up in appeal before the District Judge, Poonch, where the parties entered into a compromise. While maintaining the

decree passed by the Sub Judge the parties agreed that instead of one month the ejectment of the appellant would take place after 11/2 year i.e.

on 27-6-1971 and also agreed that during this period of 11/2 year the appellant would pay to the respondent Rs. 15/- per mensem as rent instead

of Rs. 8/-. Recording this compromise the appellate Court on 27-12-1969 dismissed the appeal with the above-said modification. It appears that

the parties kept quiet after the compromise. The plaintiff respondent on 28-6-1971 filed execution petition for the eviction of the appellant and also

for the recovery of rent.

The appellant contested the execution alleging that the consent decree was in fact a new agreement of tenancy. As the fresh tenancy had been

created between the parties so the decree had become inexecutable. This plea found favour with the Executing Court and the decree was held to

be inexecutable and execution petition was dismissed. On appeal the District Judge, Poonch. has reversed the said decision of the executing court

and has held the decree to be executable. It is against this order that the present second appeal is directed.

Mr. Salaria, on behalf of the appellant has challenged the order passed by the District Judge, and has tried to support the order passed by the

Sub Judge, Rajouri, the executing court on the reasoning given by the Sub Judge.

The first ground of attack taken by Mr. Salaria is that a consent decree passed in a suit for ejectment where the ejectment is sought on the

ground of personal necessity is no better than a private agreement between the parties. According to him, the District Judge while recording the

compromise should have satisfied himself that the grounds for ejectment were available to the respondent and he should have recorded a finding

before he could accept the compromise. He has also contended that the circumstances of the present case were peculiar in nature because

simultaneously with the execution of a compromise a rent-deed of enhanced rent of Rs. 15/- instead of Rs. 8/- was also executed by the appellant

in favour of the respondent. By execution of this rent-deed a new tenancy came into being and the decree became inexecutable. In support of his

contentions Mr. Salaria has relied on Kaushalya Devi and Others Vs. Shri K.L. Bansal, .

In reply to the above contentions Mr. Mahajan contended that although a new rent deed for Rs. 15/- was executed inter partes but the

compromise deed had simply made a change in the period granted by the trial court for vacation of the house. The trial court had granted one

month and by means of this compromise eighteen months' time instead of one month was agreed to between the parties and otherwise the decree

was kept intact. A reference to the execution of the rent-deed also has been made in the compromise and that did not create any fresh tenancy. He

further contended that the order and the decree passed by the court of District Judge clearly stated that the appeal had been dismissed on merits

but the period for vacation only was changed due to the compromise of the parties. This very clearly meant that the learned District Judge had

applied his mind and upheld the decree and had extended the time because of the compromise between the parties. Mr. Mahajan distinguished the

authority relied on by Mr. Salaria on the ground that in the Supreme Court case the facts and the provisions relied on were different than in the

instant case.

I have considered the respective contentions of the learned counsel for the parties and would deal with them one by one.

The first contention of Mr. Salaria that a new tenancy was created by means of a compromise, is not correct. On the admitted facts the trial

court had found the necessity for personal occupation of the respondent in his favour. A perusal of the compromise deed would show that it simply

provided that the appellant would vacate the suit-house within 18 months from the date of the compromise i. e. upto 27-6-1971 and undertook to

hand over possession to the respondent without any objection after the period. A mention was made in the compromise deed that apart from this

compromise a rent deed at a rate of Rs. 15/- per mensem has also been executed which had also been attached to the compromise deed and

which meant that it formed part of the compromise itself. These terms of the compromise clearly show that the necessity for personal occupation

was admitted by the parties and the time for vacating the house only was extended. The rent deed which was made part of the compromise might

have been got executed as an abundant caution only to ensure that the appellant will pay the enhanced rent during the period for which the time for

vacation had been extended. This view gets full support from the decree passed by the District Judge wherein he has specifically dismissed the

appeal with the only modification that instead of one month the period of vacation was enhanced to 11/2 year expiring on 27-6-1971 on the

condition that the appellant will pay Rs. 15/- per mensem during this period.

From the above facts it is quite clear that there was no new tenancy created between the parties. Only the time for which the execution of the

decree was kept in abeyance was fixed.

The next contention of Mr. Salaria that the District Judge should have recorded a finding regarding the personal necessity and then alone he

could have accepted the compromise is also devoid of force. In the present case the trial court had recorded a finding of fact that the personal

necessity was proved. The appellant had filed an appeal to challenge that finding. It is always upto the appellant to press his appeal or not. The

present compromise indicates that the appellant probably being satisfied that it will not be possible for him to assail the finding of fact recorded by

the trial court felt satisfied by getting the extension in time for vacation of the house. This the appellant could legally and validly do. When the

District Judge dismissed the appeal of the appellant, it amounts to affirming the finding of the trial court. It is not necessary that District Judge

should have recorded a finding of fact first and then he should have accepted the compromise in the present case. Both these things have been

simultaneously done. This case, therefore, stands on a different footing than a compromise of similar nature having been accepted before a trial

court where no trial of the issue regarding personal necessity having taken place, the parties compromised. Satish Kumar and Others Vs. Surinder

Kumar and Others, relied on by Mr. Salaria does not apply to the facts of the present case. In that case the parties entered into a compromise

before the trial of the issue was held or a finding was recorded on merits by the trial court. Moreover, in that case the decree was passed on the

basis of an award which did not amount to decision on merits of the issue of personal necessity.

More appropriate is the case D. Balakrishnamurthy and Others Vs. Manasani Veeranarassaiah@Narasimha and Another, , wherein the

Supreme Court case (Supra) has been distinguished and it has been held by the learned Judge as under:-

The principle deducible from the observations made by the learned Judge is patent. The Court's jurisdiction to pass an order of eviction is no

doubt, conditioned by the existence or proof of one or more of the grounds specified in the statute. But the satisfaction of the Court, which is an

essential prerequisite for decreeing eviction need not necessarily be the product of a contested proceedings. What is material is the cognizance or

the awareness of the court that the requisite grounds exist. If this cognizance or awareness can be proved by the record, the fact that the order of

eviction has emanated as a result of the consent between the parties will be immaterial. The argument of the learned counsel before me is

tantamount to saying that the satisfaction of the court, which gives jurisdiction to make the order of eviction must be the end of product of a

process of an adjudication made by the Court, I find no warrant for the contention so formulated by learned counsel. The essence of the matter is

that the jurisdictional fact or base must be established. It is not necessary that the satisfaction of the Court about the existence of the ground should

spring out of a judicial adjudication. Even if the proceeding does not culminate in the Court's adjudication, it is possible for it to be satisfied about

the existence of the requisite condition. On a true construction of Section 10 it is obvious that the competence of the court to order eviction need

not necessarily rest on the satisfaction reflected in its decision. The satisfaction, which is not based on its decision, may have, nevertheless, arisen

by reason of the facts and circumstances disclosed by the record.

In view of the above authority the view taken by the District judge that in the present case no fresh tenancy had come into being and a separate

finding on the point of personal necessity was not needed, is quite correct.

For the reasons given above, I find no force in this appeal which is dismissed with costs.