Sadakatullah Khan vs Hafiza

Dr. Vineet Kothari, J.—1. The present second appeal under Section 100 CPC has been filed by the landlord in this Court on 18.08.2000, aggrieved by the reversal of the eviction decree by the learned first appellate court of the Additional District Judge No. 1, Jodhpur on 31.05.2000 in Civil Appeal Decree No. 63/99 - Smt. Hafiza & Ors. Vs. Sadakatullah Khan.

The learned trial court of the Civil Judge (Junior Division) & Judicial Magistrate, First Class, Jodhpur City, Jodhpur had decreed the eviction suit (Civil Original Suit No. 97/96 - Sadakatullah Khan Vs. Smt. Hafiza & Ors.) on the ground of subletting and default in payment of rent on 27.09.1999, with the following findings and observations:-

The learned first appellate court however, reversed the same on 31.05.2000 with the following findings and observations:-

While admitting the present second appeal of the landlord on 09.01.2001, a coordinate Bench of this Court framed the following substantial questions of law for consideration by this Court:-

"a- Whether the learned appellate court has misread the pleading and evidence and even ignored material evidence to reverse the finding of the learned trial court, vitiating the judgment and decree of the learned appellate court?

b- Whether the statement of the plaintiff to the effect that he is acquainted with the signatures of Abdul Rehman because he signed in his presence on a number of occasions and the said signatures are marked A to B, is not proof of execution of the document by Abdul Rehman?

c- Whether the entries of payment of rent on the rent note by the landlord who is dead made from October, 1958 to April, 1961 are not proof of relationship of landlord and tenant?

d- Whether the learned appellate court was right in holding that Ex. 3 was not proved by the plaintiff because no other evidence was produced to prove Ex. 3?

e- Whether learned appellate court was right in holding that relationship of landlord and tenant between the parties is not established?

f- Whether the learned appellate court was right in not decreeing the plaintiff''s suit for eviction on the ground of denial of title of the appellant?"

Learned counsel for the plaintiffs-appellants-landlord, Mr. G.R. Singhvi urged that the suit property, a ''Bada'' in question situated at Bamba Mohalla, Jodhpur, a thickly populated Muslim area of Jodhpur was let out to the defendant-tenant-Abdul Rehman way back in the year 1958 at monthly rent of Rs. 20/- per month, for which the Rent Note Ex. 3 was executed by the defendant-tenant-Abdul Rehman. However, he never paid any rent after 01.05.1998, which by that time has been agreed to be paid @ Rs. 200/- month. Mr. G.R. Singhvi also submitted that when some constructions were taking place in the year 1988 at the residential house of the plaintiff-landlord, who was living in the adjacent premises, on account of falling of a stone patti on the defendant-tenant-Abdul Rehman, he unfortunately, suffered fatal injuries and died on 27.05.1988 and his legal representatives also claimed compensation from the plaintiff-appellant in the capacity of the landlord and the competent court of City Magistrate awarded compensation of Rs. 3000/- and in those proceedings also, the deceased-Abdul Rehman was described as tenant of the plaintiff. Mr. G.R. Singhvi also urged that not only the denial of title is the ground for eviction under Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, but the default in payment of rent was also established in the present case, and therefore, the learned appellate court has grossly erred in reversing the eviction decree of the trial court, which was based on cogent grounds.

On the other hand, Mr. Sundeep Bhandawat, learned counsel for the defendants-tenants supported the impugned order of the learned first appellate court and urged that for a long period of 20 years if the rent was not paid by the defendant-tenant, the landlord is not expected to sit silently and not take any action against the tenant. He also submitted that the document Ex. 3 Rent Note was not well proved before the learned appellate court, and therefore, in the absence of the relationship of landlord and tenant between the parties, the eviction decree given by the learned trial court was rightly reversed by the learned appellate court. He therefore, urged that the present second appeal of the plaintiffs-appellants deserves to be dismissed.

The suit premises, a Bada, open land in question is approximately of the size of 60 x 80 feet situated in Bamba Mohalla, Jodhpur a thickly populated area of Jodhpur. Way back in the year 1958, the Rent Note was executed on the stamp paper of Rs. 1/- by the defendant-tenant-Abdul Rehman and the same was signed by plaintiff-landlord-Sadakatullah Khan also and for some period even the rent @ Rs. 20/- per month was paid by the defendant tenant, but after some time the payment of rent was stopped. The factum of payment of compensation on the death of Abdul Rehman in an accidental fall of stone patti upon him in the capacity of the tenant is also not denied. The defendant-tenant also failed to establish his own title over the suit property. In the face of documentary evidence Ex. 3 Rent Note and payment of rent for some time by the defendant-tenant and thereafter continuous default in payment of rent and also material alterations carried out by him as found by the learned trial court, are sufficient grounds for granting eviction decree in favour of the plaintiff-landlord, however, the learned appellate court taking a distorted view of the same evidence has refused the eviction decree vide the aforequoted portion of the order. Thus, the appeal of the plaintiff-appellant-landlord in the considered opinion of this Court, deserves to be allowed. The substantial questions of law framed above also deserves to be answered in favour of the plaintiff-appellant-landlord and the same are accordingly so answered. The present second appeal of the plaintiff-appellant-landlord is accordingly allowed with costs of Rs. 5000/- (Rupees Five Thousand Only) to be paid by the defendant-tenant to the plaintiff-landlord.

In the circumstances, it is directed that the respondent-defendant-tenant shall hand over the peaceful and vacant possession of the suit property in question to the appellant-plaintiff on or before 31.12.2016 and shall pay mesne profit @ Rs. 2,000/- per month (Rupees Two Thousand only) commencing from the month of January, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellant/plaintiff also and in case there is any default in payment of mesne profit, the period of One Year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the appellant/plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The respondent/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 defendants-tenants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month 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 appellant-plaintiff within a period of One Year from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.