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Gainda Ram Sada Ram Vs. Vishnu Digambar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1615 of 1963
Judge
Reported inAIR1967P& H380
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 13
AppellantGainda Ram Sada Ram
RespondentVishnu Digambar and anr.
Appellant Advocate N.S. Chhachhi, Adv.
Respondent Advocate V.P. Prasher, Adv.
DispositionAppeal dismissed
Cases ReferredAnand Nivas Private Ltd. v. Anandji Kalyanji
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........the plaintiff went in appeal before the learned senior subordinate judge, ambala. he held that buta's tenancy was a monthly one; in other words, it was a contractual tenancy which was heritable; and this tenancy was not got determined by the plaintiff before he filed the application for the ejectment of buta before the rent controller. it was further held that this contractual tenancy after his death devolved on his legal representatives, namely, the defendants and smt. krishna who were living with the deceased during his lifetime and even after his death.it was found by the learned judge that the defendants were not tenants-at-will. the learned senior subordinate judge was of the view that since the relationship of landlord and tenant existed between the parties, the plaintiff could.....
Judgment:

P.C. Pandit, J.

1. The dispute in the instant case relates to the ejectment from a house situate in Ambala City. Gainda Ram was the owner of the same and he had given it on rent to one Buta on a monthly rent of Rs. 11 somewhere in 1957-58. On 15th of July, 1961, Gainda Ram filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act) for the eviction of Buta on the ground that the said house was required by the landlord for his own occupation. The Rent Controller came to the conclusion that Gainda Ram had not been able to establish this ground and he, consequently dismissed the application on 12th of October, 1961. On 29th of November, 1961, Gainda Ram filed an appeal against the order of the Rent Controller before the appellate authority. During the pendency of the appeal, Buta died on 3rd of March, 1962. On 5th of May, 1962, the appellate authority dismissed the appeal as infructuous and observed as under:--

'In para 1 of the eviction petition, Gainda Ram appellant admitted that the term of tenancy had ended long ago. Obviously, Buta was continuing in the disputed house as a statutory tenant by virtue of the provisions of Section 13 of the East Punjab Urban Rent Restriction Act. Buta Ram died during the pendency of this appeal. The statutory tenancy of Buta was not heritable. Gainda Ram could not have started eviction proceedings before the rent controller against the legal representatives of Buta, and for that matter cannot continue this appeal against his legal representatives. The appeal is accordingly infructuous and is dismissed.'

Thereafter on 27th of August, 1962, Gainda Ram filed a suit, out of which the present second appeal has arisen, against Vishnu Digamber and Smt. Viran Wali alias Viron Wati, the son and widow respectively of Buta deceased for the possession of the premises in dispute by ejecting the defendants in the Court of Shri H.S. Bakhshi, Subordinate Judge IInd Class, Ambala. His allegations were that the house had been given on rent to Buta on a rent of Rs. 11/- per mensem. His term of tenancy had ended and he was in occupation as a statutory tenant. On his death the tenancy had ended and since the same was not heritable, the defendants were in occupation of the premises without any right whatsoever.

2. The suit was resisted by the defendants who admitted that Buta had got the house on a monthly rental of Rs. 11/- from the plaintiff. The tenancy was a contractual one and it devolved upon them on the death of Buta and as such they could not be ejected. There was a relationship of landlord and tenant between the plaintiff and the legal representatives of Buta deceased. The Civil Courts had no jurisdiction to try the suit for ejectment by the landlord against his tenant. It was also pleaded that Smt. Krishna, who was the daughter of Buta, was a necessary party to this litigation, because she was also one of his heirs and should have been impleaded as a defendant. It was averred that a valid notice under Section 106 of the Transfer of Property Act was necessary to be given to the defendants in order to put an end to the tenancy and the suit was not maintainable for want of this notice.

3. On the pleadings of the parties, the following issues were framed :--

1. Whether the suit is competent?

2. Whether notice under Section 106, Transfer of Property Act is not necessary?

3. Whether the suit is properly valued for the purpose of Court fee and jurisdiction?

4. Whether Mst. Krishna is a necessary party?

5. Relief.

4. The trial Judge came to the conclusion that the tenancy in the instant case was from month to month, that it could be determined by law, but it was not the plaintiff's case that it was so determined; and that it was not a statutory tenancy. Since the plaintiff was not prepared to accept the defendants as tenants under him, the trial Court held that this suit was not competent. According to the learned Judge, the plaintiff could bring a suit against the defendants on the allegation that they were his tenants, although a decree passed therein might not be executable. His correct remedy was to Seek eviction tinder Section 13 of the Act.

He further found that a notice under Section 106 of the Transfer of Property Act was not necessary. It was held that Smt. Krishna was the daughter of Buta and had been divorced by her husband; she was living in the house is dispute with her father Buta during his lifetime and even after his death as an heir and his legal representative; she was, therefore, a necessary party and the suit was liable to fail on the ground that she was not impleaded as a defendant. On these findings, the suit was dismissed.

5. Aggrieved by this decision, the plaintiff went in appeal before the learned Senior Subordinate Judge, Ambala. He held that Buta's tenancy was a monthly one; in other words, it was a contractual tenancy which was heritable; and this tenancy was not got determined by the plaintiff before he filed the application for the ejectment of Buta before the Rent Controller. It was further held that this contractual tenancy after his death devolved on his legal representatives, namely, the defendants and Smt. Krishna who were living with the deceased during his lifetime and even after his death.

It was found by the learned Judge that the defendants were not tenants-at-will. The learned Senior Subordinate Judge was of the view that since the relationship of landlord and tenant existed between the parties, the plaintiff could get the defendants ejected only by filing an application before the Rent Controller under the provisions of the Rent Restriction Act. On these findings, he dismissed the appeal after having affirmed the findings of the trial Court. Against this, the present second appeal has been filed by the plaintiff, Gainda Ram.

6. The sole point for decision in this case is whether Buta was a statutory tenant at the time of his death or his tenancy was a contractual one. It is common ground between the parties that if his tenancy was a statutory . one, then it was not heritable and the defendants were liable to be ejected from the house in dispute. On the other hand, if the tenancy of Buta was a contractual one, then the plaintiff's suit should be dismissed, because this tenancy devolved upon his legal heirs.

7. In the plaint, the plaintiff's case was that the house had been given on rent to Buta on a rent of Rs. 11/- per mensem. His term of tenancy had ended and therefore he was in occupation of the premises as a statutory tenant. On his death the tenancy rights could not be inherited by the defendants who were his heirs. In the written statement all that the defendants admitted was that Buta had got the house on a monthly rent of Rs. 11 from the plaintiff. The fact that Buta's tenancy was a statutory one was denied by them. Their case was that it was a contractual tenancy which was inherited by them on the death of Buta.

It may be mentioned that it is the case of both the parties that no rent deed was executed by Buta and the same is, therefore, not forthcoming on the record. From the pleadings of the parties, it seems to be a common ground that Buta's tenancy was from month to month. Such a tenancy is a contractual one according to the decision of Mehar Singh, J. in Nihal Chand v. Shiv Narain, (1958) 60 Pun LR 297: (AIR 1958 Punj 263). This ruling was followed by Grover, J., in Niadre v. Nanneh, (1960) 62 Pun LR 451. The correctness of the ruling in Nihal Chand's case was not challenged by the learned counsel for the appellant. As a matter of fact, this authority was relied upon by him for his submission that in the instant case the defendants had not proved that Buta's tenancy was a contractual one. Following this decision, therefore, I would hold that Buta's tenancy was a contractual one.

8. The contractual tenancy as held in Nihal Chand's case, (1958) 60 Pun LR 297: (AIR 1958 Punj 263), can be determined in one of the three ways i. e. by efflux of time or forfeiture or by notice to quit. In the instant case, Buta's tenancy was not determined in any one of there ways before his death. It is true that in the plaint, the plaintiff did mention that Buta's term of tenancy had ended and he was in occupation as a statutory tenant, but this fact was denied by the defendants in their written statement. No proof was however, adduced by the plaintiff to prove this fact. On the other hand, when the plaintiff appeared in the witness-box, he admitted that mere was no period of tenancy fixed between the parties. That being so, there was no question of the ending of the term of Buta's tenancy as alleged by the plaintiff. We are, therefore, left with the position that the contractual tenancy was not determined before Buta's death on 3rd of March 1962.

9. Who is a statutory tenant and what are his rights have answered by the Supreme Court in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi, AIR 1965 SC 414, as under:--

'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. Such a person is not a tenant at all, he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. .....'

Applying this test, it would be noticed that Buta did not become a statutory tenant before his death. Had he become one, his tenancy rights could not be inherited by the defendants.

10. It may be mentioned that the plaintiff had stated in para 2 of the plaint that when previously he filed an application on 15-7-1961 before the Rent Controller for the eviction of Buta under the Rent Act on the ground of personal necessity, he had alleged in that application that Buta had occupied the premises on a monthly rental of Rs. 11/-, that his term of tenancy had ended and thereafter he had remained in occupation as a statutory tenant and that Buta in reply to that application had admitted these allegations. There is, however, no proof on the record regarding the truth of these assertions. All that has been produced by the plaintiff in this case is the certified copy of the order dated 5th of May 1962 passed by the appellate authority.

The relevant part of this order has already been reproduced by me in the earlier part of this judgment. From that it would be apparent that in the application before the Rent Controller the plaintiff had alleged that the term of tenancy of Buta had ended long ago. On the basis of this assertion, the appellate authority remarked that Buta was, therefore, continuing in the disputed house as a statutory tenant by virtue of the provisions of Section 13 of the Rent Act. It has not been established on the record as to what reply to this assertion was given by Buta in those proceedings, because neither the application nor the reply given, thereto by Buta has been produced. It would have been a different matter if Buta had admitted that his term of tenancy had ended and he had remained in possession of the premises as a statutory tenant.

The appellate authority's observation that Buta continued in possession of the house as a statutory tenant, on the basis of a mere assertion of the plaintiff in his application for ejectment that Buta's term of tenancy had ended long ago would not mean anything in the absence of any proof on the record or without any admission on the part of Buta to that effect. In any case, the defendants, who were no parties to this litigation, would not be bound by any finding given by the appellate authority in those proceedings.

11. It may also be stated that the contractual tenancy of Buta was not ended by the mere fact that the plaintiff had previously filed an application for his ejectment under Section 13 of the Act. It has been ruled in Nihal Chand's case, (1958) 60 Pun LR 297: (AIR 1958 Punj 263), that the act of a landlord in instituting a suit for the eviction of the tenant under the Rent Act cannot convert a contractual tenancy into a statutory one, because the contractual tenancy is not determined in that way.

12. It would thus be seen that the contractual tenancy of Buta was not determined and he never became a statutory tenant before his death. That being so, his tenancy rights were rightly inherited by the defendants and they could not be dispossessed from the house in dispute in these proceedings. They could not be termed as trespassers. They are the tenants of the plaintiff in the eye of law and his remedy lies in filing an application for their eviction under Section 13 of the Act. The suit had, therefore, been rightly dismissed by the Courts below.

13. The result is that this appeal fails and is dismissed. Taking into consideration the peculiar circumstances of this case, I would, however, leave the parties to bear their own costs throughout.


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