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Shri Kishan and ors. Vs. Khem Chand - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 320 of 1970
Judge
Reported inAIR1986Raj184
ActsConstitution of India - Article 226
AppellantShri Kishan and ors.
RespondentKhem Chand
Appellant Advocate S.K. Keshot, Adv.
Respondent Advocate R.P. Goyal, Adv.
DispositionAppeal dismissed
Excerpt:
- .....alias natholi.3. the defendants contested the suit and their case was that this property was not evacuee property and it was not sold in any auction and the defendant was the owner of this property.the following issues were framed :1. whether the defendant shri nathi alias natholi came in occupation and possession of the suit house as a tenant on a monthly rent of rs. 1.50 of the custodian since 15-8-1947?2. whether the suit house has been purchased by the plaintiff?3. to what amount of arrears'of rent and mesne profits the plaintiff-appellant is entitled?4. while reversing the decree of the first appellate court, it was held that the property was evacuee property and that defendant natholi was the tenant of this property who was required to pay rent at the rate of rs. 1.50 paisa per.....
Judgment:

G.M. Lodha, J.

1. This is a civil second appeal of the tenant defendant in a suit for eviction, which was dismissed by the trial Court but decreed by the first appellate Court. The dispute between the parties relates to a residential house in village Roopbas of district Bharatpur, which was earlier not within the purview of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). During the pendency of this appeal before this Court, it is admitted that the Roopbas village which is relevant for the purpose of this case (as the house in dispute is situated in that village), has now come within the purview of this Act on account of notification dated 2-2-1979.

2. The plaintiffs case was that the property was evacuee and was purchased by Girja who sold it to plaintiff Khemchand. Nathi was alleged tenant and after his death his son Kishan, widow Munni and daughter Smt. Kishan became the tenants as legal representatives of Nathi alias Natholi.

3. The defendants contested the suit and their case was that this property was not evacuee property and it was not sold in any auction and the defendant was the owner of this property.

The following issues were framed :

1. Whether the defendant Shri Nathi alias Natholi came in occupation and possession of the suit house as a tenant on a monthly rent of Rs. 1.50 of the Custodian since 15-8-1947?

2. Whether the suit house has been purchased by the plaintiff?

3. To what amount of arrears'of rent and mesne profits the plaintiff-appellant is entitled?

4. While reversing the decree of the first appellate Court, it was held that the property was evacuee property and that defendant Natholi was the tenant of this property who was required to pay rent at the rate of Rs. 1.50 paisa per month. Apart from earlier evidence, reliance was placed on an entry exhibit 5, which reads as under : --

Register of Acquired Urban Evacuee Immovable

Properties (other than Agricultural Property)

Localit) Roop Bas.

Occupant at time of Acquisition

Name with parentage etc; Nathi Bargi Local Date of Occupation :15-8-1957,Monthly rate :1.50 N.P.Amount adjustedFrom Compensation :233(Bill No. 35149 Ch. No. 247 C.S. No. 3175 dt 7-2-62, dt. 31-5-1963. Roop Bas).In Cash :105/-C.A.F. No. R/J/1906. 12/- Ch. No. 141 dt. 5-1-63.

5. The sale certificate was also relied upon, which is Exhibit 4 in the case.

6. After holding that the plaintiff has proved that it was evacuee property and it was purchased by Girja in auction and Shri Khemchand the plaintiff paid the amount, the first appellate Court decreed the suit for eviction and also for the rent.

7. Before this Court, Mr. Keshot learned counsel for the appellant has raised following submissions : --

Firstly, it was argued that the property is not evacuee property, that auction has not been proved. Secondly, it has not been proved, that the defendant took it on rent from the Evacuee Departmentat the rate of Rs. 1.50 paisa. Lastly it was argued that after coming into force of Rajasthan Premises Act, no decree can be passed or even if passed cannot be executed unless one of the grounds of Section 13 is proved. Since in this case, according to Mr. Keshot, no ground of Section 13 was alleged and proved, no decree can be upheld by this Court nor it can be executed.

8. Mr. Goyal learned counsel for the plaintiff respondent has vehemently opposed the appeal According to him, Exhibits 4 and 5 provide clinching evidence of the fact that the property was evacuee property, that it was auctioned, that it was on rent and that the defendant had paid rent of Rs. 1.50 paisa per month. Mr. Goyal pointed out that the defendant has not paid the rent and in the written statement, he has expressly denied the title of the landlord and asserted his title in this property. It was, therefore, argued that even if the Rajasthan Premises (Control of Rent and Eviction) Act has been applied, then also all that is required to be seen is, whether one of the grounds mentioned in Section 13 is made out or not in this case.

9. Mr. Goyal also submitted that there is a finding of personal necessity, denial of title and default and therefore, the decree of the ejectment need not be set aside now.

10. Mr. Keshot on the contrary submitted that no opportunity was given to his client before making an entry in Exhibit 5 and, therefore, it was not binding on his clients. The witnesses who came to prove it have said that it was made on the basis of survey. Mr. Keshot, further argued that so far as the default is concerned after application of Rajasthan Premises Act, Section 13(2) would apply and he was to be given an opportunity to deposit the old rent along with the cost etc., after its determination by the Court. Mr. Keshot submitted that it is wrong to say that the defendant has denied the title.

11. I have carefully considered the submissions of the learned counsel for the parties and also examined the record of the case.

12. So far as the property being evacuee property is concerned, I am in agreement with the finding of the first appellate Court and therefore, need not repeat all the grounds mentioned by it. It is sufficient to mention that in addition to the oral evidence, Exhibit 5, and entry of the register maintained by Evacuee Property Department, provides clinching evidence that his property was evacuee property and that the defendant was tenant at the rate of Rs. 1.50 paisa per month. This is an entry in the Register of Acquired Urban Evacuee Immovable Properties of Roopavas. The date of occupation is 15-8-1947 and monthly rate is 1.50 paisa as is shown from column Nos. 8, 9, 10 and 11. From column No. 16, it appears that Girraj purchased it at Rs. 350/-. As is shown in column No. 17, the date of possession is March 12, 1963.

13. Then there is Exhibit 4, the certificate of sale from Ministry of Rehabilitation and there is a note in favour of Girraj dated 7th February, 1962, showing that the property was sold and Girraj was declared purchaser of this property with effect from 12th March, 1063.

14 I am unable to accept the contention of learned counsel for the. appellant that before making this entry, in the Register, it was necessary to give a notice to show cause or any principles of natural justice have been violated in making this entry. This registeris a public document and the register has been regularly kept and the entry relates to 1947 and then to 1963. There is inherent truth and proof of genuineness in this entry and certificate Ex. 4 and I am not prepared to reverse the findings of the first appellate Court on this aspect of the case.

15. I am, therefore, convinced that this property in dispute belonged to the Evacuee Department initially and then it was sold to Girraj, who sold it to the present plaintiff and the plaintiff became the owner of this property and the defendants are tenants of this property at monthly rent of Rs, 1.30 paisa per month.

16. The second question which has been raised is that on account of application of Rajasthan Premises Act, the judgment should be set aside and the case should be remanded for making an enquiry whether any of the grounds mentioned in Section 13 are made out. In this connection, it may be pointed out that Sections 27 and 13 of the Act are relevant and the net result of the above two sections is that no decree for eviction can either be passed or executed unless it shows that one of the grounds of Section 13 is made out.

17. Section 13 contains a number of grounds but Mr. Goyal has. relied upon grounds Nos. A, G and H. So far as ground No. H is concerned, I am not convinced that a decree can be maintained on this ground because firstly, there must be specific plea and then the parties are required to lead evidence on this aspect of the matter and thereafter Section 14, implications are also to be considered.

18. Then remains Sub-section (1) of Section 13 of the Act. Undoubtedly the defendant is a defaulter for more than six months in the present case. A serious question can arise, whether after application of Rajathan Premises Act, the Court is required to give an opportunity to the defendant to make payment and take benefit of Subsections (2) and (3) of Section 13 as amended up-to-date. I do not propose to discuss this matter any further because I am of the opinion that in the instant case Mr. Goyal's contention, so far as ground No. F is concerned, can be accepted and therefore, discussion about Clause (a) would be academic only.

19. Now coming to ground No. F of Section 13, it reads as under : --

(f) that the tenant has renounced his character as such or denied the title of the landlord and the letter has not waived his right or condoned the conduct of the tenant;

20. Undoubtedly the plaintiff asserted his title and claimed that he was the landlord and the defendants were the tenants and the rent was Rs. 1.50 paisa. Mr. Goyal rightly pointed out that in the written statement filed by the defendant Nadii alias Natholi, who was alive at that time, it was categorically denied that the plaintiff was the landlord. Not only the fact was denied in para No. 1 of the reply but in para No. 1, the defendant asserted that this property is owned and possessed by the defendant.

21. The actual words are ^^izfroknh dk feyfd;rh vkSj edcqt gS A** Again in additional plea of para No. 8, it was denied that Girraj purchased it and it was asserted that this property is in ownership of the defendants since the times of ancestors and in his possession as such'

^^vlfy;r ;g gS fd ;g edkuizfroknh dk vkSj blh gSfl;r ls vjls ls izfroknh dk dCtk Fkk**

22. Admittedly in 1979 when the Rajasthan Premises (Control of Rent and Eviction) Act was applied to Roopbas, the plaintiff s assertion that his title was denied by the defendant much earlier to it, is correct. Since the plaintiff has been contesting this suit and praying for a decree, he never waived his right or condoned the conduct of that tenant as per requirement of Sub-section (f). On the record, the denial of title of plaintiff landlord by the defendant is amply proved.

23. In view of the above. I am convinced that the decree passed by the first appellate Court can be maintained under Section 13(f) of the Rajasthan Premises (Control of Rent and Eviction) Act and there is no necessity of remanding the case at this belated stage when it is pending since 1966.

24. The result is that this appeal fails and is hereby dismissed, but without any order as to costs.

25. Mr. Keshot prays that he may be allowed some time to vacate the premises. This request is reasonable and is allowed. The decree for eviction would be executed only on expiry of six months from today, provided that the defendants give an undertaking before this Court that they would handover the vacant possession on expiry of six months. This undertaking should be filed within a period of . one month from today failing which the landlord would be at liberty to execute the decree for eviction.


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