Kharaiti Lal vs Kamla Wati and Others

V.K. Jhanji, J.—This will dispose of Regular Second Appeals No. 272 and 273 of 1999.

Both these appeals arise out of two suits bearing No. 2014/28.10.1993/ 16.7.1985 and 1172/31.5.1993/24.12.1987 which were consolidated by the trial Court for the purpose of evidence and decision.

Suit No. 2014 was filed for ejectment of the defendants and for recovery of amount for the use and occupation. Suit No. 1172 of 1993/1987 was filed to recover mesne profits for the use and occupation with effect from 29.6.1985 to 28.11.1987. Both the suits, upon contest by the defendant have been decreed.

In brief, the facts are that Shori Lal i.e., husband of plaintiff Kamala Wati vide rent note dated 29.12.1960 let out the premises in dispute at the rate of Rs. 100/- per month to Kharaiti Lal, defendant No. 1 (appellant herein). Shori Lal sought ejectment of Kharaiti Lal, defendant No. 1 by filing petition u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) on various grounds including sub-letting by the tenant. Tenant took up the stand in his reply that it was a composite lease of the building and the running of the saw mill. Tenant contended that such tenancy did not fall within the definition of ''building'' as contained in the Act and, therefore, the Act was not applicable and the Rent Controller has no jurisdiction to entertain petition or to order eviction.

The Rent Controller, vide order dated 31.3.1973 ordered ejectment of the tenant on the ground of sub-letting. On tenant''s appeal, the Appellate Authority remitted the case to the Rent Controller to send a report on the additional issues framed by it in regard to composite lease etc. and whether the premises fall within the definition of ''building'' and whether the Act was applicable. The Rent Controller sent the report to the effect that it was composite lease for manufacturing purposes and the premises did not fall within the definition of ''building'' and consequently the Act was not applicable. Learned Appellate Authority did not agree with the report and came to the conclusion that the Act was applicable and the premises fall within the definition of ''building''. It upheld the finding of the Rent Controller in regard to sub-letting by the tenant and consequently dismissed the appeal. This Court, on 6.2.1985 in Civil Revision No. 1937 of 1977 titled Kharaiti Lal etc. v. Smt. Kamala Vati, preferred by the tenant however, held that the lease was composite one with the dominus purpose of running the sawmill and, therefore, the premises did not fall within the definition of ''building'' as contained in Section 2(a) of the Act and the remedy of the landlord was to seek ejectment after termination of tenancy by filing a suit and not by filing a petition under the Act. It also deserves to be mentioned at this stage that during the pendency of the proceedings before the Appellate Authority. Shori Lal died and on application filed by his widow, she was ordered to be impleaded in place of her husband Shori Lal. In Civil Revision filed by the tenant, Shrimati Kamla Wati widow of Shori Lal was impleaded as a respondent.

Keeping in view the finding of this Court in Civil Revision that the provisions of the Act do not apply to the building and the remedy, if any, of the landlord is to seek ejectment by filing suit, Smt. Kamla Wati (plaintiff in two suits out of which two second appeals have arisen) terminated the tenancy of the tenant by serving a notice dated 27.3.1985. Despite service of notice, defendant did not vacate the premises and that led to the filing of the suit for ejectment and for recovery of arrears of rent with effect from 29.5.1985 to 28.6.1986. Smt. Kamla Wati contended that on the death of her husband, she became owner and landlady of the premises on the basis of Will dated 10.3.1977 which her husband during his life time had executed in her favour. In the suit, as an abundant precaution, she also impleaded defendants No. 6 to 14 who, in absence of Will dated 10.3.1977 would have succeeded to the estate of Shori Lal along with her.

Upon notice of the suits, defendants No. 1 to 5 put in appearance and filed written statements whereas defendants No. 6 to 14 were proceeded against ex parte. Defendants No. 1 to 5 raised preliminary objection that the plaintiff has no locus standi to file the suit as the tenancy had not been terminated validly and the suit is barred under the provisions of the Act (Act No. 3 of 1949). On merits, defendants denied the validity, legality and the existence of Will dated 10.3.1977. They further contended that the tenancy in dispute was not composite but it was a tenancy of the building and machinery. Machinery is apart from the building and has separate value. Defendants also alleged that all the legal representatives of the deceased have not joined in the filing of the suit and, therefore, the suit is liable to be dismissed.

On the pleadings of the parties, trial Court framed necessary issues in both the suits and the parties led evidence in support of their case.

Trial Court on the basis of evidence brought on record by the parties, decreed the suit and held that plaintiff Kamla Wati has the locus standi to file the suit because after the death of Shori Lal, her husband, she became owner of the entire estate on the basis of Will dated 10.3.1977 and thus the relationship of landlord (landlady) and tenant between her and defendant No. 1 came into existence. Notice u/s 106 of the Transfer of Property Act served upon defendant No. 1 before filing of the suit was found to be valid and accordingly issue in regard to notice was decided in favour of the plaintiff. Resultantly, trial Court decreed the suit and defendants were given two months'' time to vacate the suit premises from the date of the decree. Trial Court also passed decree for recovery of amount as compensation for use and occupation of the premises and machinery. Two appeals were preferred by defendant No. 1 before the Additional District Judge, Amritsar but both met the same fate. Hence, two second appeals by defendant No. 1.

Learned Counsel appearing on behalf of the defendant No. 1 has contended that the premises in dispute being ancestral co-parcenary property of Shori Lal having developed upon him from his father Hans Raj, its disposition by Will was void and illegal. Learned Counsel contended that Kamla Wati plaintiff could not become owner and landlady on the basis of Will and, therefore, she had no locus standi to file suit.

I do not find any merit in this contention of the learned Counsel for the defendant No. 1 Smt. Kamla Wati on her plaint, specifically averred that her husband Shori Lal had inducted defendant No. 1 as tenant in the premises along with machinery installed therein at the rate of Rs. 100/- per month with effect from 29.12.1960. She further averred that Shori Lal died on 28.3.1987 and during his life time, he executed Will dated 10.3.1977 bequeathing his estate in her favour. She averred that the Will was got registered in the office of Sub-Registrar on 25.3.1977. Against this, it was never the case of defendants in the written statement that the premises in dispute are ancestral co-parcenary property of Shori Lal, having developed upon him from Hans Raj. The only objection taken by the defendants was that a!! the legal representatives of the deceased had not joined in the filing of the suit and, therefore, suit is liable to be dismissed. As noticed earlier Smt. Kamla Wati, as an abundant precaution, had joined all the legal representatives as defendants No. 6 to 14 but they did not come forward to contest the Will. The plea now raised by the learned Counsel that property is ancestral co-parcenary property and Member of Joint Hindu Family cannot, without the consent of other family members, create charge over the property by Will, was neither raised by the defendants in the written statement nor any issue in this regard was struck. In second appeal, new plea not raised earlier in the courts below and that too inconsistent with the case set up in the written statement, cannot be allowed to be raised for the first time. Accordingly, the finding of the Courts below that the plaintiff, after the death of her husband, became owner and landlady of the premises on the basis of Will dated 10.3.1977 calls for no interference.

Learned Counsel appearing on behalf of defendant .No. 1 next contended that the lease in question was for manufacturing purposes and could be terminated only by serving six months notice as provided u/s 106 of the Transfer of Property Act. It is contended that in this case, notice given was not for six months and, therefore, tenancy was not validly terminated

I do not find any merit in this contention as well. Both the Courts below have exhaustively dealt with this contention and I am in complete agreement with the reasoning recorded by the first Appellate Court in paras 13 to 15 of its judgment.

No other point was urged.

Consequently, both these appeals i.e. Regular Second Appeals No. 272 and 273 of 1999 shall stand dismissed. Appellant is, however, allowed three months time to vacate the premises provided he deposits the entire decretal amount including the arrears of rent upto the date together with rent for three months within one month from today and also files an undertaking in writing to the effect that he shall hand over vacant possession of the premises to the landlady on the expiry of the said period.