Shama Charan vs Ved Paul and Another

Mehar Singh, J.—This litigation concerns a shop, originally in the ownership of Bhagat Ram. He had given the shop on rent to Sita Ram deceased under the rent note, Exhibit P. 1, for one year from November 1, 1952, to October 31, 1930. At that time the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949), had been in force for seme time and became applicable to the tenancy. On, October 19, 1955, he mortgaged this shop with Kirpa Ram and on September 1, 1956, he sold it to Ved Pal and Kishan Chand, respondents. The last named filed a suit for possession of this shop by redemption against the mortgagee, Kirpa Ram, and also seeking eviction of Sita Ram tenant and another tenant on the same property. While the suit was pending, Sita Ram tenant died and his son. Sham Charan appellant, was impleaded as his legal representative in that suit. The respondents obtained a decree for possession of the shop by redemption against Kirpa Ram mortgagee and also for possession of the part of the shop with the other tenant, but as Sita Ram, deceased tenant, had his tenancy commencing before the mortgage and the sale, under the original owner Bhagat Ram, so the suit with regard to him was dismissed on a finding that the respondents as landlords could have recourse to East Punjab Act 3 of 1949 so far as Sita Ram deceased tenant, was concerned. The case come the High Court where that decree so far as Sita Ram deceased tenant, as represented by his son Sham Charan appellant, is concerned, was maintained.

After the decision of that suit in the High Court the respondents instituted the suit, giving rise to this appeal under clause 10 of the Letters Patent, seeking a decree for possession of the shop against Sham Charan appellant on the ground that his father Sita Ram deceased tenant was a statutory tenant, on whose death the statutory tenancy came to an end, and so the appellant is not entitled to remain in possession of the shop. The plaint was drafted so as to seek his eviction from the shop. The learned trial Judge by his judgment and decree of October 31, 1962, decreed the claim of the respondents on the basis stated by them. Appeal against the decree of the trial Court was dismissed by the Senior Subordinate Judge on April 5, 1963, and the second appeal was dismissed by Harbans Singh J. on February 1, 1965.

Two arguments were advanced before the learned Single Judge in second appeal, (i) that the present suit is barred by the rule of resjudicata because of the decision in the previous suit, and (ii) that in view of the decision in Nihal Chand v. Shiv Narain (1968) 60 P.L.R. 297, Sham Charan appellant has to be treated as having inherited the tenancy from his father Sita Ram in whose hands, in the facts of the present case, it continued to be a contractual tenancy to the date of his death. The learned Judge has repelled the first argument on the simple ground that in the previous suit the status of Sham Charan appellant with regard to the shop, whether tenant or not, was never in dispute and never the subject-matter of decision, and what was in dispute was the status of his deceased father Sita Ram. In regard to the second argument the learned Judge has come to the conclusion that on the facts and in the circumstances of the present case the tenancy originally by Bhagat Ram in favour of Sita Ram deceased tenant being only for a defined period of one year, the. contractual tenancy then came to an end by the expiry of that period, whereafter Sita Ram deceased tenant ceased to be tenant under the ordinary law, but remained in possession of the shop because of the protection given to him by the provisions of East Punjab Act 3 of 1949, and thereby, after the termination of the contractual tenancy, he became a statutory tenant. On his death the statutory tenancy came to an end and his son Sham Charan appellant has no right in the shop. The learned Judge dismissed the second appeal of Sham Charan appellant.

In this appeal the learned counsel for Sham Charan appellant has pressed the very two arguments for consideration. His contention on the first question is that during the pendency of the previous suit, when Sita Ram deceased tenant died, the respondents as plaintiff''s impleaded Sham Charan appellant on the record of that suit as legal representative and heir of Sita Ram deceased tenant and as having inherited the rights of tenancy from him. Although the first part of the statement is correct, but the second is rot. The learned counsel has read the application made by the respondents in this behalf after the death of Sita Ram deceased tenant, but in that they do not say that Sham Charan appellant has inherited the tenancy of the shop in dispute from his deceased father. The learned counsel then further urges that in that suit it was open to the respondents, Sita Ram deceased tenant having died, to say that there existed no tenancy of the shop so far as Sham Charan appellant was concerned. But the parties did not enter into this controversy in that suit. The proceedings in that suit came to an end with the parties litigating only with regard to the status of Sita Ram deceased tenant as tenant of the shop and his liability to eviction in that particular suit. What was decided was that as Sita Ram deceased tenant had been introduced into the shop by the original owner before the title was acquired by the respondents and he had been introduced by the mortgagee, so his tenancy could not be disturbed except in accordance with the provisions of East Punjab Act 3 of 1949. But that was confined only to the rights an 1 status of Sita Ram deceased tenant. The rights and status of Sham Charan appellant with regard to the shop in question did not come to form part of the dispute between the parties directly or indirectly in that case. Such a dispute could only indirectly come in that case if the respondents proceeded to amend their pleadings and to question any rights and status claimed by Sham Charan appellant with regard to the shop. It appears that the Jitter made no such claim at that time and the respondents did not consider themselves as called upon to so amend their pleadings in that suit. Thus, that suit was decided only with regard to the status and rights of Sita Ram deceased tenant as to the shop in question as represented by his son Sham Charan appellant after his death. So the learned Judge has been right that in these circumstances there is no question of the previous judgment in the earlier suit operating as res judicata in the present suit.

It is not correct that the facts in Nihal Chand''s case are the same as in the present case, because in that case there was a monthly tenancy and not tenancy for a definite period as in the present case. In the present case the tenancy started with a definite period of one year, at the end of which the contract of tenancy came to an end. Such were not the facts in Nihal Chand''s case, So, that case has no bearing on the facts of the present case. The learned counsel for Sham Charan appellant refers to section 116 of the Transfer of Property Act, 1882, and contends that as after the determination of the tenancy in his favour, with the expiry of the year, Sita Ram deceased tenant, continued in possession of the shop and his landlord or landlords accepted rent from him, so the tenancy, was renewed in his favour either from year to year or from month to month, depending upon whether the initial tenancy was for a year or for a lesser period. The learned counsel presses that, in any case, under that provision the effect of Sita Ram deceased tenant holding over after the expiry of the period of one year given in the rent note was that he continued to be the tenant of the shop, whether that tenancy was renewed from year to year or from month to month is not material. Such would normally be the case if it could be said that this was truly a case of holding over, but how can a case in which a tenant remains in possession of demised premises under the protection of East Punjab Act 3 of 1949, be said to be a case of holding over, and the landlord be said to have accepted rent within the scope of section 116 of the Transfer of Property Act, 1882. The reason is that the landlord cannot evict such a tenant except in the terms of East Punjab Act 3 of 1949 inspite of the determination of the term of the lease or the tenancy, and he then has to accept rent because of a statutory compulsion under which he is obliged not to evict the tenant. Such, to my mind, is not a case which is of holding over u/s 116 of the Transfer of Property Act, 1882. There is no substance in the argument. On the facts of the present case, after the expiry of the term of one year the contractual tenancy in favour of Sita Ram deceased tenant came to an end, this is not a case of holding over, and Sita Ram deceased tenant remained in possession of the premises under the protection of East Punjab Act 3 of 1949. He, therefore, became a statutory tenant from the date of the determination of the contractual tenancy. On his death the statutory tenancy came to an end. Such a tenancy has no transmittable incidence and cannot be inherited. Sham Charan appellant has no claim to the shop in the circumstances. This appeal fails and is dismissed, but, in the circumstances of the case, the parties are left to their own costs.

Falshaw, C.J.

I agree.