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Mahboob Ullah Vs. Jwala Prasad Kajriwal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 199 of 1966
Judge
Reported inAIR1974All413
ActsTransfer of Property Act, 1882 - Sections 106 and 109; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 2 - Order 7, Rule 1
AppellantMahboob Ullah
RespondentJwala Prasad Kajriwal and anr.
Appellant AdvocateG.P. Tandori and N.L. Ganguli, Advs.
Respondent AdvocateS.N. Agarwal, Adv.
DispositionAppeal allowed
Excerpt:
.....heirs and successors of 'sunder lal. he failed to notice that any such argument on behalf of bankey behari could not be accepted in the absence of any pleading to that effect. in so far as the title of the plaint is concerned, as already stated, it was kept deliberately vague and as the title did not disclose the particulars of the joint family of which bankey behari claims himself to be the karta, he might well claim himself to be forming joint family with jwala prasad and manager of the joint family formed with him. it is surprising that the lower appellate court should have failed to notice a complete absence of pleading that bankey behari formed a joint hindu family with his other two brothers;.....landlord and tenant between the parties; that bankey behari (plaintiff no. 2) is the karta of the joint family descendants of sunder lal and, therefore, entitled to terminate the appellant's tenancy and sue for ejectment on behalf of the other co-owners constituting the joint family. on the question of arrears his finding was against the appellant; the finding being that the defendant had failed to establish that rent had been paid by him up to the end of august, 1963 and he was, therefore, found to be in arrears from 1st june. 1962.3. i have heard learned counsel for the parties. it was urged by learned counsel for the appellant that the lower appellate court was in error in holding that the notice of ejectment relied upon for the respondents was valid in law.4. it was further urged.....
Judgment:

J.S. Trivedi, J.

1. This is defendant's second appeal. Jwala Prasad Kajriwal, son of Ram Bilas and Bankey Behari Kajriwal, son of Sunder Lal, respondents had filed a suit for ejectment from certain premises against Mahboob Ullah and also for arrears of rent. In the body of the plaint Bankey Behari (plaintiff No. 2) had described himself as 'Karta of the family' and 'adult son of Sunder Lal'. The respondents came to court with the contention that plaintiff No. 1 Jwala Prasad Kajriwal and Bankey Behari Kajriwal (plaintiff No. 2) are the owners of Hata No. 84/145 in dispute and that the defendant-appellant was the tenant of Quarter No. 12 of the aforesaid Hata on a monthly rent of Rs. 3.75 np. that the defendant had failed to pay rent from 1st June, 1962 and was in arrears of Rupees 63.60 np. The plaintiffs claimed to have served upon the defendant a notice dated 5-4-1963 putting an end to the tenancy and demanding payment of arrears.

2. The appellant-defendant denied that the plaintiffs are owners of the disputed accommodation. He denied further that there was any relationship of landlord and tenant between the parties and pleaded that Bankey Behari, plaintiff No. 2, was not the Karta of the family of the descendants of Sunder Lal and the descendants of Sunder Lal do not form joint Hindu family. The defendant contested the right of Bankey Behari (plaintiff No. 2) to file a suit for ejectment and recovery of arrears of rent as Karta of the said family and raised the defence that the descendants of Sunder Lal could not recover any rent from the defendant for the period falling in the lifetime of Sunder Lal without obtaining a succession certificate. The defendants' case was thatthe accommodation was let out to him by one Lala Manual Ram; that he had paid rent to Prem Nath Munim up to the end of August, 1963. There was also a plea questioning validity of the notice of ejectment and demand on the ground that plaintiffs 1 and 2-respondents not being the sole owners of the accommodation or landlords of the defendant they were not competent to put an end to his tenancy. These were some of the main grounds raised in defence for the appellant. The trial court held that plaintiffs 1 and 2 were not the sole owners of the accommodation in dispute; that there was no proof of relationship of landlord and tenant existing between the parties that the notice dated 5-4-1963 was not proved to have been served upon the defendant and, therefore, he did not commit default in the payment of rent within the meaning of Section 3 (1) (a) of U. P. Act III of 1947 and that the plaintiffs were not proved to be the sole owners of that accommodation and landlords of the defendant had no right to issue the notice of ejectment Upon these findings, in the main, the suit was dismissed with costs. The respondents appealed and the Additional Civil Judge, Kanpur. allowed the appeal, reversed the decree of the trial court and decreed the suit for ejectment and arrears of rent etc. on the finding that by virtue of Section 109 of the Transfer of Property Act there had come to exist a relationship of landlord and tenant between the parties; that Bankey Behari (plaintiff No. 2) is the Karta of the joint family descendants of Sunder Lal and, therefore, entitled to terminate the appellant's tenancy and sue for ejectment on behalf of the other co-owners constituting the joint family. On the question of arrears his finding was against the appellant; the finding being that the defendant had failed to establish that rent had been paid by him up to the end of August, 1963 and he was, therefore, found to be in arrears from 1st June. 1962.

3. I have heard learned counsel for the parties. It was urged by learned counsel for the appellant that the lower appellate court was in error in holding that the notice of ejectment relied upon for the respondents was valid in law.

4. It was further urged that the court below was in error in holding that Jwala Prasad and Bankey Behari respondents could maintain the suit for ejectment and recovery of rent against the appellant. On hearing learned counsel I have not a moment's hesitation in holding that the decision of the lower appellate court was contrary to law on a number of points and, therefore, liable to be interfered with by this Court under Section 100 of the Code of Civil Procedure. In para 1 of the plaint it was asserted that plaintiffs 1 and 2 are the owners of the accommodation in dispute. There was no averment in the plaint to the effect that all the owners and descendants of Sunder Lal including Bankey Behari form joint Hindu family that Bankey Behari is the Manager and Karta of that joint family. Indeed, if any such averment had been made in the plaint then it would have been inconsistent with para 1 of the plaint under which plaintiffs 1 and 2 asserted exclusive right of ownership to the disputed Hata. The trial Court found that there was no proof of relationship of landlord and tenant between the parties, it never having been suggested for Bankey Behari either in the plaint or in evidence that the accommodation was let out by him to the appellant. This particular finding was affirmed by the lower appellate court, but it seems to have drawn on the provision contained in Section 109 of the Transfer of Property Act solely for coming to a contrary conclusion to the effect that the relationship of landlord and tenant had come to exist between the parties by virtue of Section 109 of the Transfer of Property Act In this the lower appellate court committed a gross error. It is not disputed that the defendant is a tenant of the disputed accommodation since the time of Mangal Ram. The sale deed (Ext. 2) dated 26-7-1959 shows that the premises were transferred by Mangal Ram in favour of Jwala Prasad and Sunder Lal, father of Bankey Behari. It is disclosed by the sale deed that Jwala Prasad and Sunder Lal were brothers, being the sons of Ram Bilas. They appear to have jointly purchased this property from Mangal Ram in 1959. The benefit of Section 109 of the Transfer of Property Act therefore, could be claimed only by Jwala Prasad and Sunder Lal deceased as under Section 109 the rights of the lessor devolve, in the absence of a contract to the contrary, on the transferee of the lessor. Bankey Behari could not claim to have become landlord of the appellant under Section 109 as he was not the transferee of the former lessor Mangal Ram and it is here that the lower appellate court appears to have erred. Jwala Prasad could claim to be treated as a lessor under Section 109 but not Bankey Behari. Therefore, the finding of the lower appellate court that the relationship of landlord and tenant had come to be established between Jwala Prasad and Bankey Behari on the one hand and Mahboob Ullah on the other is erroneous. This finding of the appeal court was vitiated also by a misreading of the record. It wrongly stated that it is not disputed that plaintiff No. 2is owner of the premises after the deathof his father. Never in pleadings or evidence did the respondents admit that Bankey Behari was owner of the premises after the death of Sunder Lal. In the written statement it was categorically denied that plaintiffs 1 and 2 were owners of the property and plaintiffs were put to proof. It was also pleaded that without a succession certificate plaintiff No. 2 could not claim a decree. It transferred from the deposition of Ram Shanker (P.W. 3) that Sunder Lal died about three years ago leaving behind three sons: Bankey Behari (plaintiff No. 2), Bipin Behari and Vijai Behari and same daughters also. Sunder Lal, upon this evidence, patently died after coming into force of the Hindu Succession Act, 1956, and, therefore, his half share in the disputed premises acquired under the sale deed of 1959 will devolve upon his three sons of daughters in accordance with the provisions of the Hindu Succession Act if he had not during his lifetime made a disposal of his half share in this property by partition, gift or testament. The plaintiffs appear to have calculatedly refrained from making Bipin Behari and Vijai Behari parties to this suit as they were the best persons to throw light on the question who has become owner of the share of Sunder Lal after his death. The plaintiffs tried to obtain a decree for ejectment against the appellant for their own exclusive benefit by a clever device of describing Bankey Behari in the title of the plaint as Karta of the family, a matter to which I shall advert separately. The plaint is cleverly silent on the question how Jwala Prasad and Bankey Behari are the sole owners of the disputed Hata. It is not suggested that Bankey Behari became owner of the half share of Sunder Lal, his deceased father by sale, gift, partition or bequest. In the above circumstances there appears to be no escape from the conclusion that Bankey Behari, plaintiff No. 2, was not the owner of the share purchased by Sunder Lal but he could at best be one of the co-sharers in that share of which, possibly his other two brothers and sisters are also owners by succession. It is, therefore, clear that at best Jwala Prasad and Bankey Behari are only co-owners of the disputed premises along with some other persons who have not joined the suit either as plaintiffs or defendants, A perusal of the notice of ejectment dated 5-4-1963 shows that it was issued on the in-structions of Jwala Prasad and Bankey Behari only and not upon, the instructions of all the heirs and successors of 'Sunder Lal. Upon my finding that there was no proof of relationship of landlord and tenant between the two plaintiffs and the appellant they alone were incompetent in law to put an end to the appellant'stenancy without the concurrence of the other co-owners of the accommodation. The notice of ejectment was, therefore, invalid in law as rightly urged by learned counsel for the appellant.

5. The validity of the notice has been upheld erroneously by the lower appellate court on the finding that Ban-key Behari was the Manager and Karta of the joint family of the descendants of Sunder Lal. Here again the Civil Judge committed a manifest error of law. He failed to notice that any such argument on behalf of Bankey Behari could not be accepted in the absence of any pleading to that effect. There was not the faintest suggestion in any paragraph of the plaint that he and his other two brothers formed joint Hindu family and that he is Karta or Manager of that family. There was also no averment in the plaint that this suit had been filed by him as Manager of that family and on behalf of and for the benefit of that family. If it was intended to be a representative suit then in accordance with Order 7, Rule 4 of the Code of Civil Procedure it was incumbent on Bankey Behari to state in the plaint that he was suing in a representative capacity as Karta of the family and facts should have been stated supporting such an averment. If he was in fact genuinely suing as a Manager on behalf of his other two brothers then it was incumbent upon him to say in the plaint that the suit was being filed on behalf of and for the benefit of the joint family consisting of himself and his brothers. Nothing of the kind was stated in the plaint. On the other hand, plaintiffs 1 and 2 claimed exclusive ownership to the Hata in dispute. This particular assertion made in para 1 of the plaint was wholly inconsistent with and destructive of any argument that Bankey Behari had sued as Karta of the joint family of his brothers and that the notice of ejectment was also given in that capacity. The lower appellate court erred in holding that the title of the suit should be treated as part of the plaint. The title of the suit can never be treated as part of the plaint as, for one thing it is not covered by the verification appended at the foot of plaint. In so far as the title of the plaint is concerned, as already stated, it was kept deliberately vague and as the title did not disclose the particulars of the joint family of which Bankey Behari claims himself to be the Karta, he might well claim himself to be forming joint family with Jwala Prasad and Manager of the joint family formed with him. The fact re-mains that the plaint has been written in a most non-committal manner and the other brothers of Bankey Behari couldnever take advantage of any decree for ejectment or arrears of rent that may have been obtained by Bankey Behari against the appellant. The vagueness in the description of Bankey Behari as Karta of the joint family in the title and that absence of any averment in the plaint that he is Karta of a joint Hindu family constituted by himself and his brothers appear to be the result of a pre-determined and set pattern. This pattern is discernible not only in the deposition of Ram Shanker (P.W. 3) but also in the notice of ejectment. Ram Shanker also did not in his deposition depose that the disputed accommodation was the joint family property of Bankey Behari and his two brothers. On the other hand, he also asserted that Jwala Prasad and Bankey Behari were the owners of this property. Again he did not state that Bankey Beihari and the other two sons of Sunder Lal deceased formed joint Hindu family and Bankey Behari is Karta of that joint family. The notice of ejectment (Ext. 3) also was kept designedly and purposely vague on these points. The particulars of the joint family of which Bankey Behari was described as Karta were kept undisclosed in that notice also and what is more, it was not stated that this notice was being sent by Bankey Behari for and on behalf of his other brothers and heirs of Sunder Lal deceased. It is surprising that the lower appellate court should have failed to notice a complete absence of pleading that Bankey Behari formed a joint Hindu family with his other two brothers; that he was Karta 'of that joint family and also complete absence of evidence on this point and yet the lower appellate court by reasoning, which is wholly confused, held Bankey Behari to be the Karta of the family composed of the descendants of Sunder Lal. This finding also, therefore, is completely against law and, therefore, unsustainable. I conclude, therefore, that there was no proof of the existence of a joint family between Bankey Behari and his two brothers; there was also no proof that Bankey Behari was the Karta and Manager of any such joint family and finally there was neither pleadings nor proof that this was joint family property of the three sons of Sunder Lal. The notice of ejectment viewed, from any angle was therefore, invalid in law.

6. It was strongly urged in arguments by learned counsel for the respondents that the property in dispute was joint family property of Bankey Behari and his other brothers. As to this it should suffice to say that no such argument could be permitted to be advanced for the respondents in the face of thecontents of para 1 of the plaint where Jwala Prasad and Bankey Behari assorted solo ownership to this property. There is no presumption under the Hindu Law that a joint family possession is joint property (see Shrinivas v. Narayan : [1955]1SCR1 and, therefore, it is scarcely necessary to discuss the applicability of Mt. Ram Dei v. Mt. Gyarsi : AIR1949All545 ). For the possibilty that Sunder Lal may have partitioned his self-acquired property among his sons in his lifetime or may have gifted or bequeathed it to one or more of his sons or daughters--as he was quite 'competent to do--cannot in the absence of evidence be excluded (see Arunachala Mudaliar v. Muruganatha Mudaliar : [1954]1SCR243 ).

7. There is also no force in the argument as advanced for the respondents that they could file a suit for ejectment and arrears of rent on the ground that they were dealing with, him as such inasmuch as there is complete absence of proof of any such dealing. The lower appellate court has held, which is a finding of fact, that the appellant never paid rent to the Munim of Rajendra Prasad Oil Mills. That is apart from the fact that upon the evidence he was Munim of the Mills which was apparently a partnership concern and not the Munim of plaintiffs 1 and 2 personally. I find, therefore, that the lower appellate court wrote an extremely sketchy and thoughtless judgment and arrived at conclusions which were contrary to law and wholly unsupportable. The trial court was right in the view that the plaintiffs were not entitled to sue or to put an end to the tenancy of the appellant.

8. For the aforesaid reasons Iallow the appeal and set aside the judgment and decree of the Additional Civil Judge, Kanpur, dated 13-11-1965 and restore the decree of the Munsif dated 5-5-1965. The appellant will get costs of this appeal from the respondents.


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