Tekchand and Others vs Khemchand

Vineet Kothari, J.—The present first appeal has been filed by the defendant-Tekchand S/o. Gulab Roy, under Section 96 of the Code of Civil Procedure, 1908 in this Court on 11.01.2005, aggrieved by the decree of possession, ejectment in respect of suit Shop No. 2 (measuring 8'' x 10'') situated at Sri Ganganagar, which was initially let out by Smt. Surati Devi, wife of plaintiff/respondent Khem Chand, on 23.05.1985 to one Kuldeepchand S/o. Tekchand. The said Kuldeepchand, pre-deceased his father, Tekchand on 11.05.1993, whereas the defendant, Tekchand, expired on 23.05.2009 during the pendency of the present first appeal and his legal heirs were taken on record, whereas the wife of pre-deceased Kuldeepchand, Saroj Bala is said to have remarried and was not at good terms with defendant Tekchand.

The present first appeal has a background litigation also in the form of an eviction suit filed by the plaintiff, Khemchand, viz. Civil Suit No. 42/1994 against LR''s of Kuldeepchand, namely, Saroj Bala and her minor daughter, Ms. Priyanka, in which the present defendant-Tekchand, was also impleaded as party-defendant on his application filed under Order 1 Rule 10 CPC as guardian of Ms. Priyanka, but the appellate court of learned Additional District Judge, Sri Ganganagar, in Appeal No. 72/1997- Khemchand v. Saroj Bala W/o. Kuldeepchand and others, remanded the matter back to trial court for deciding the question of relationship of Tekchand, father of original tenant, Kuldeep, as to whether he was tenant of plaintiff Khemchand or not in the suit shop but upon remand vide order dated 27.07.1992, before the said issue could be decided by the trial Court the Suit No. 42/1994 itself was withdrawn by the plaintiff, Khemchand on 05.07.1999, without seeking any liberty of the trial court to institute any fresh suit. Thereafter, the present Suit No. 57/2004-Kham Chand (D) through LRs v. Tekchand, was filed against the defendant Tekchand, for seeking his ejectment from the suit shop in question and the plaintiff Khemchand came to the Court in the present Suit No. 57/2004 with the case that defendant Tekchand had forcibly taken possession of the suit shop in question as trespasser by breaking open the locks after it had remained closed for three years on account of his dispute with his daughter-in-law, Smt. Saroj Bala, widow of his pre-deceased son Kuldeepchand, who was the original tenant and even proceedings under Section 145 Cr.P.C., were filed by the father-in-law, Tekchand (defendant herein) against his daughter-in-law, Smt. Saroj Bala, and thus the present suit was filed.

The present suit filed by the plaintiffs/respondents came to be decreed by the learned trial court of District Judge-Special Judge, NDPS Cases, Sri Ganganagar, vide judgment and decree dated 19.11.2004 in favour of plaintiffs, against which the present first appeal has been preferred by the defendant, Tekchand, who is now represented by his legal representatives, Smt. Laxmi Devi, Rajendra etc.

Before coming to the arguments of the learned counsels, it would be appropriate to take note of the relevant findings recorded by the learned trial court in the impugned judgment dated 11.01.2015 for ready reference:--

While deciding the other issues in favour of plaintiff/respondent, the decree passed in the following manner:--

Mr. R.R. Nagori, Sr. Advocate assisted by Mr. Alkesh Agarwal, learned counsel for the appellants/defendants raised following contentions in the present case for consideration by this Court.

"(i) That the present Suit No. 57/2004 Khemchand v. Tekchand, was barred by estopple as the earlier Suit No. 42/1994 was not withdrawn by the plaintiff- Khemchand on 05.07.1999 without taking any liberty from the Court for instituting a fresh suit and, therefore, in view of Order 23 Rule 1(3) read with Section 11 of CPC, 1908, the subsequent suit was barred.

(ii) That the plaintiff, Khemchand could not institute suit since the original tenancy was by created by his wife, Surati Devi, against the widow of tenant, Kuldeepchand, Smt. Saroj Bala and her minor daughter, Ms. Priyanka, in which the present defendant, Tekchand, was also impleaded as party-defendant as guardian of Ms. Priyank, daughter of Saroj Bala and Kuldeepchand (original tenant), who was also arrayed as a defendant but was a minor and the plaintiff did not allow the question of defendant Tekchand''s relation as tenant qua the landlord, Surati Devi, to be determined after the remand order of the appellate court dated 27.07.1998 and withdrew the suit itself on 05.07.1999. Since, the defendant, Tekchand, father of Kuldeepchand, became statutory tenant by inheritance within the meaning of Section 3(vii)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act of 1950) and having carried on the business with his son, Kuldeepchand, he could be evicted in the present suit treating him as a trespasser as he was a tenant in the said suit shop.

(iii) That even if the defendant, Tekchand, was not treated as tenant of the suit shop in question, in any case, he could not be treated as a trespasser, since he was a family member and, therefore, his possession over the suit shop was not as a trespasser and the decree under appeal deserves to be quashed and set aside.

(iv) That after impleadment in the previous Suit No. 42/1994, the defendant- Tekchand paid the rent as determined by the court in the previous suit and even subsequent thereto, which was accepted by the plaintiff, Khemchand. Therefore, there was no question of treating him as a trespasser in the present Suit No. 57/2004."

Learned counsel for the appellants/defendants, Mr. R.R. Nagori, Sr. Advocate, relied upon following judgments in support of his contentions, which would be death with separately herein after.

"1. Hardev v. Jaidev through his Legal Representatives, reported in 2000 (1) RLW 407.

Indranarayan Vs. Roop Narayan and Another, .

Papinayakanahalli Venkanna and Others Vs. Janadri Venkanna Setty (by Lrs.), .

Gordhan Das through his Legal Representatives Vs. Som Dutt, .

Hari Ram Vs. Lichmaniya and Others, .

Narayan Jethanand and Others Vs. Asapuri Vijay Saw Mill, .

Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, ."

On the other hand, Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi and Mr. Sushil Bishnoi, learned counsel for the plaintiffs/respondents, vehemently opposed the submissions made by the learned counsel for the defendants/appellants and submitted that neither the subject-matter, nor parties were common in the previous Suit No. 42/94, and the present Suit No. 57/04, nor the position of estopple or res-judicata applied in the present case. They further contended that the status of the present defendant, Tekchand, was nothing more than that of a trespasser, as he neither could inherit the tenancy of his predeceased son, Kuldeepchand, nor he ever became statutory tenant otherwise, qua the plaintiff, Khemchand, or his wife Surati Devi, at any point of time and merely because he (Tekchand) was impleaded in the previous Suit No. 42/94, as guardian of Ms. Priyanka, did not confer upon him any status of tenant. Mr. R.K. Thanvi, learned Sr. Advocate also urged that looking to his dispute with own daughter-in-law, namely, Saroj Bala, widow of Kuldeepchand, which went to the extent of Section 145 Cr.P.C. proceedings over the possession of the suit shop in question, it clearly showed that defendant, Tekchand, had taken the forcible possession of the suit shop in question and not in regular course of business.

They have also drawn the attention of the Court towards the statement of Smt. Saroj Bala, dated 29.04.2000 recorded by the Court of learned Sessions Judge, Sri Ganganagar as AW.1 in Criminal Proceedings No. 176/1993- Saroj Bala v. Smt. Laxmi Devi, in which he stated about the sour relationship with her father-in-law (defendant-Tekchand) and that he had no right over the suit shop in question. Mr. R.K. Thanvi, learned counsel for the appellant/defendant also vehemently opposed the submissions of the learned counsel for the appellants/defendants that the defendant, Tekchand, father of original tenant, Kuldeepchand, inherited the tenancy or became statutory tenant in the said suit shop as the defendant failed to prove by any evidence that he was ordinarily carrying on the business with Kuldeepchand, prior to his death in the suit shop as a family member and on the contrary, in his own statement in the cross-examination, Tekchand, had admitted that he was carrying on business with his brothers in the shop belonging to their father, situated near Arora Vansh Temple in Sri Ganganagar up to the time of death of Kuldeep.

Learned counsel for the plaintiffs/respondents also drew the attention of the Court towards the Rent-note executed by Surati Devi W/o. Khemchand, who died before filing of the present Suit No. 57/2004 and that is why the plaintiff, Khemchand, her husband, and the owner of the suit property filed the present suit and emphasized that said tenancy created in favour of Kuldeepchand on 25.03.1985, was only for a period of one year and it clearly stipulated that same was for individual business of tenant, Kuldeepchand and he will not take any body else as partner in the business. Mr. Thanvi, also submitted that since the stand taken by the defendant, Tekchand, before the trial court was that he was partner with his son, Kuldeepchand, in the business in the suit shop in question, he could not claim any benefit of having inherited tenancy as a family member under Section 3(vii)(b) of the Act of 1950.

Learned counsel for the plaintiffs/respondents relied upon the following judgments in support of his contention, which will be dealt with herein after.

"1. Gopi Kishan Vs. Bajrang Lal and Another, .

L.Rs. of Tribhuvan Dutt Vs. Jai Narayan, .

Ramji Dass and Ors. v. Smt. Kamla Rani and Ors. reported in 2007 (2) RCR 189.

Neon Lawrie and Another Vs. O.R. Properties and Builders (P) Ltd. and Others, ."

I have heard the learned counsel for the parties at length and perused the record including the evidence on record and judgments cited at bar.

In the considered opinion of this Court, the present first appeal filed by the defendant, Tekchand, who is now represented through his legal representatives, Smt. Laxmi Devi and others, deserves dismissal. The reasons are as follows.

The defendant, Tekchand, even though father of the original tenant, Kuldeepchand, who pre-deceased his father having died on 04.06.1993, could not inherit the tenancy of his son and could not get the benefit under Section 3(vii)(b) of the Act of 1950 as he failed to lead any evidence before the court below for establishing that he was ordinarily carrying on the business with the tenant, Kuldeepchand in the suit shop in question. He was also not Class-I heir qua his son Kuldeepchand, whose successors viz. wife-Smt. Saroj Bala and daughter- Ms. Priyanka and mother Smt. Laxmi Devi, could only claim such right being the Class-I heirs and only if further he could establish that he was ordinarily carrying on the business in the suit shop with original tenant, Kuldeepchand. The evidence on the other hand is on the contrary that the defendant, Tekchand, himself has admitted in his statement that he was carrying on business with his brothers in another shop situated near Arora Vansh Temple, and not in the present suit shop. Though he had the Books of Accounts of business of Sh. Kuldeepchand, but he never produced the same before the learned trial court to show that he had any share in profit with his son, Kuldeepchand, even though he was not actively participating in the business, but if he claimed to be a partner with his son, he could have produced the partnership-deed, registration certificate of such firm etc. with the Registrar of Firms including the books of accounts maintained in the regular course of business to establish such a fact, but nothing of this sort was done.

Merely, being a family member, even though not being Class-I heir as per personal law, namely, Hindu Succession Act, applying in the present case it would not be sufficient to confer upon him the status of a statutory tenant upon succession in terms of Section 3(vii)(b) of the said Act unless the fact of ordinarily carrying on business with the tenant is also established. Being a relative entitled to succeed to the deceased tenant''s property according to personal law, and ordinarily carrying on the business with him, are the twin conditions required to be satisfied and even if one of them is absent, the foundation of claiming relationship of statutory tenant under the said provisions falls to the ground. This is what the view which was taken by this Court in the case of Gopi Kishan v. Bajrang Lal and Anr. (supra). The relevant Para Nos. 25 to 27 of the said judgment are quoted herein below for ready reference:--

"25. Although Smt. Suraj Devi is heir of deceased Rampratap but indisputably since she was not carrying on business with her deceased husband Rampratap, therefore, she fulfills only one condition and other condition is lacking hence she is not necessary party in the present suit and the plaintiff appellant is fully justified not to implead her.

As regards the claim of the defendant respondents of being tenant of the shop in question they have proved only one condition about carrying on business with deceased Rampratap without disclosing their capacity whether as a servant or as a partner. But they miserably failed to establish themselves as heirs of deceased, therefore, they are not entitled to claim themselves to be the tenant of the shop in question.

In my humble opinion for impleadment as party in a suit under Act No. 17 of 1950 and for acquiring status of tenant under Sec. 3(vii)(b) of the said Act, both the conditions precedent required to coexist. If any one of them is missing then no one can claim either to be impleaded as a party or claim himself to be the tenant of the shop in question."

Section 3(vii)(b) of the Act of 1950 is also quoted herein below for ready reference:--

"Section 3(vii)(b): in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises purposes, ordinarily carrying on business with him in such premises as member of his family upto his death." In the case of LR''s of Tribhuvan Dutt v. Jai Narayan (supra), this Court held as under:--

"In view of aforesaid decision of this Court following the Supreme Court decisions, the contentions of learned counsel for the appellant that the Full Bench decision of this Court in case of Ram Jeevani [1991 (1) RLW 222] still holds the field and deserves to be followed cannot be sustained. The said judgment being in conflict with the later decision of the Supreme Court in the case of Tara Chand and Another Vs. Ram Prasad, stands impliedly overruled and this has already been said by coordinate bench of this Court in case of Chiman Lal v. Narendra Kumar [ (1995) 2 RLW (Raj) 415]. Thus, it is very clear that though tenancy rights are heritable, in order to fall within the definition of tenant the legal representative in the matter is governed by the Rent Control Act, 1950, which is a special law and the legal representative of the deceased tenant has to fulfill the conditions and requirements of Section 3(vii)(b) of the Rent Control Act, 1950 and unless he or she is carrying on the business with the deceased tenant upto the date of his death, he cannot fall within the definition of tenant under Section 3(vii)(b) of the Act of 1950, therefore, cannot be taken on record to pursue the litigation and claim such heritable rights merely because as per the personal succession laws, he or she would fall within the definition of legal representative under Section 2(11) CPC." 17. Secondly, the claim of the plaintiff, Khemchand, that defendant, Tekchand, came into possession of the suit shop in question by taking forcible possession by breaking open the locks after the death of his son, Kuldeepchand, and dispute with his daughter-in-law, Saroj Bala, and proceedings under Section 145 Cr.P.C., were also initiated by him, is clear from his own statement before the Court. The relevant portion of his cross-examination as quoted in the impugned order of the trial court in Para 7 is also quoted herein below for ready reference:--

There being a dispute between defendant- Tekchand, with his daughter-in-law, Smt. Saroj Bala, is also clear from the statement of Saroj Bala, recorded in Criminal Case No. 176/1993-Saroj Bala v. Smt. Laxmi Devi, by the learned District and Sessions Judge, Sri Ganganagar, on 29.04.2000. The relevant extract of which is also quoted herein below:

From the above, it is clear that defendant, Tekchand, did not come into possession of the suit shop in question either through his son, Kuldeepchand, or even his daughter-in-law, Saroj Bala. Thus, except being treated as trespasser, there was no legal relationship or status, which he could claim for retaining the possession of the suit shop in question. The contention raised by the learned counsel for the appellants/defendants, Mr. R.R. Nagori, Sr. Advocate, that in the earlier Suit No. 42/1994 only the relationship of his being tenant could be determined is fallacious and not sustainable. There was no lack of jurisdiction with the present civil court of learned District Judge, who decreed the suit on 19.11.2004 deciding the said issue. While deciding the Issue No. 1, the learned District Judge has discussed this contention as well and has clearly found that he could not claim to be tenant under Section 3(vii)(b) of the Act of 1950. There being no patent lack of jurisdiction of the learned trial court in this regard, mere withdrawal of earlier Suit No. 42/1994 without deciding the said issue cannot operate as an estopple, bar or res judicata to the institution of present suit. The present suit was for entirely different cause of action, namely, to seek ejectment of a trespasser by the owner of the property whereas the earlier suit was for eviction under the provisions of the Rent Control Act of 1950.

In almost similar circumstances, this Court in the case of Neon Lawrie and Anr. v. M/s. O.R. Properties and Builders (P) Ltd. and Ors. (supra) held that principles of res-judicata would not apply in such case. The relevant portion of said judgment is quoted herein below for ready reference:

"7. So far as the facts of the present case are concerned, as transpiring from the record, the earlier suit was filed by M/s. Phool Chand Virendra Kumar against the original tenant Smt. D. Lawrie, and alleged subtenant Smt. Sheela Khanna, in which the eviction was sought on the ground of bona fide necessity and sub-letting, whereas the present suit was filed by M/s. O.R. Properties against the sons of Smt. D. Lawrie and Smt. Sheela Khanna. Apart from the fact that the cause of action in earlier suit and in the subsequent suit was absolutely different, even the parties in both the suits were different. Even if it is construed that M/s. O.R. Properties was the successor in title after M/s. Phool Chand Virendra Kumar and the decision of earlier suit was binding on M/s. O.R. Properties, then also it could not be said by any stretch of imagination that causes of action in both the suits were same for the reasons set out hereinafter. No doubt, it might prima facie appear that the earlier suit was filed seeking eviction on the ground of bona fide necessity and sub-letting and the subsequent suit was also filed on the ground of bona fide necessity and sub-letting, over and above on the ground of arrears of rent and therefore the causes of action in both the suits were same. However, the most important aspect in the subsequent suit was that the plaintiff M/s. O.R. Properties had alleged in the suit in question that after the death of original tenant Smt. D. Lawrie, the tenancy rights had not devolved upon any of her sons i.e. the defendant Nos. 1,2 and 4. Therefore, the filing of subsequent suit by the plaintiff M/s. O.R. Properties was on the subsequent event having taken place i.e. death of original tenant Smt. D. Lawrie, and the material issue in the subsequent suit was as to whether the tenancy rights had devolved upon the sons of Smt. D. Lawrie after her death, as contemplated in Section 3(vii)(b) of the said Act, which was not the matter in issue in the earlier suit." 21. Similarly, the Punjab and Haryana High Court in the case of Ramji Dass and Ors. v. Smt. Kamla Rani and Ors. (supra) held that where eviction was sought on the ground of subletting by the tenant, in favour of his sons upon death of tenant father, the sons would not become direct tenant and they were liable for eviction. Relying upon the Supreme Court decision, the Punjab and Haryana High Court held as under:--

"... In Gajanan Dattatraya Vs. Sherbanu Hosang Patel and Others, , it was held that the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (as applied to Gujarat) indicated that a tenant was disentitled to any protection under Act if he was within the mischief of the provisions relating to subletting. The language of the said provisions, it was observed, is that if the tenant had sublet, the protection ceases and it cannot be contended that the subletting must continue on the date of the suit for passing a decree for eviction. The tenant''s liability to eviction arises once the fact of unlawful subletting is proved at the date of notice. In Parvinder Singh Vs. Renu Gautam and Others, eviction had been sought on the ground of subletting and the original tenant died. It was observed that the heirs of the original tenants not only inherit the tenancy but also the rights and obligations of the tenancy. Therefore, the ground of subletting having been made out against the petitioners, which entitle the landlords to possession cannot be nullified with the death of the tenant. The petitioners by reasons of death of Mohri Ram not only inherit his rights but also his obligations. In view of the said position the stand taken by the learned senior counsel for the petitioners that with the death of Mohri Ram his LRs have become direct tenants of the landlords in the two cases is not legally sustainable in view of the judgments referred to above. Besides, it may be noticed that the position has to be seen at the time of institution of the suit." 22. On the other hand, the judgment relied upon by the learned counsel for the appellants/defendants, Mr. R.R. Nagori, Sr. Advocate in the case of Hardev v. Jaidev through his Legal Representatives (supra) is distinguishable on facts. In that case, the defendant parted with the possession in favour of his mother and brother''s wife and the Court held that since mother and brother''s wife are prospective heirs, therefore, the tenant cannot be said to have parted with possession favour of these relatives exclusively and, therefore, they would become posthumous tenant under Section 3(vii)(a) and (b) of the Act of 1950. Even in that case, the learned Single Judge clarified that such right of family members u/s. 3(vii)(a) or (b) would be co-extensive right of possession with the tenant unless a decree of eviction was passed against the tenant on the grounds specified under Section 13 of the Rent Control Act of 1950. The relevant para 22 of the said judgment is quoted herein below for ready reference:--

"It is true that during the lifetime of contractual or statutory tenant reckoned under Sub-clause (a) of Clause (vii) of Section 3 of Act No. 17 of 1950 and before birth of the hereditary tenant under Clause (b) of the said Section such "posthumous tenant" being heir and member of family of the tenant referred to under Sub-clause (a) will have no independent or separate right except to reside in the premises if it happens to be residential or to carry on business with contractual or statutory tenant as member of his family during his lifetime in order to make him entitled to inherit the tenancy right in the event of death of either contractual tenant or statutory tenant in accordance with the personal law applicable to them. It is made clear that " posthumous tenant" as a family member of tenant during his lifetime will have no other right or interest except to remain in possession along with him and he has to vacate the premises if a decree for eviction is passed against the tenant on any of the grounds enumerated under Clause (a) to (1) of Sub-section (1) of Section 13 of Act No. 17 of 1950. The protective umbrella of right of possession to "psthumous tenant" as a member of family of the tenant either contractual or statutory referred under Sub-clause (a) of Clause (vii) of Section 3 of the aforesaid Act would be co-extensive with the subsisting tenancy right of tenant and the protective umbrella of possession and user would be unfolded if tenancy right of a tenant ceases to exist on any of the grounds enumerated under Clause s (a) to (1) of Subsection (1) of Section 13 of Act No. 17 of 1950." 23. Reliance placed by the learned counsel for the appellants/defendants on the judgment of the Karnataka High Court with reference to withdrawal of suit under Order 23 Rule 1 CPC without seeking liberty to file fresh suit is also not helpful to the defendants since this Court finds that the present Suit No. 57/2004 to be filed for a different cause of action than the earlier Suit No. 42/1994 and, therefore, the earlier suit would not bar the present suit even though the previous suit was withdrawn without any such liberty to file fresh suit. For the same reason, the judgment of this Court in the cases of Hari Ram v. Lichmaniya and Ors. (supra) and Gordhan Das through Legal Representatives v. Som Dutt (supra) are distinguishable from the facts of the present case. The judgment of the Hon''ble Supreme Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors. (supra) is also not applicable because that was a case dealing with writ jurisdiction and where the earlier writ petition was withdrawn without seeking permission to institute a fresh writ petition for the same cause of action, the subsequent writ petition was also found to be not maintainable. The principles of CPC were invoked in that case for the same analogy but which is of little help to the facts obtaining in the present case.

Thus on the basis of entire conspectus of factual and legal matrix, this Court is satisfied that the learned trial court was perfectly justified in decreeing the ejection suit for dispossession of the defendant, Tekchand, who is now represented by his legal representatives from the suit shop in question and there is no reason to take a different view of the matter by this Court and, therefore, the present first appeal of the appellants/defendants is liable to be dismissed. The same is, accordingly, dismissed with costs of Rs. 10,000/-, which will be paid by the defendants to the plaintiffs within three months from today.

The appellants/defendants shall hand over the peaceful and vacant possession of the suit shop to the respondents-plaintiffs within a period of nine month i.e. on or before 31.12.2015 and shall pay mesne profit @ Rs. 5000/- per month commencing from May, 2015 and will further continue to pay the same 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 granted for ejectment shall stand reduced and the decree of ejectment would become executable forthwith. The appellants/defendants 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 appellants/defendants 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 and such third party will also bound by this decree. The appellants/defendants 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 nine months i.e. on or before 31.12.2015 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. A copy of this judgment be sent to both the learned courts below and the parties concerned forthwith.