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Harish Chandra Vs. Mohan Kanwar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 276 of 1968
Judge
Reported in1976WLN(UC)475
AppellantHarish Chandra
RespondentMohan Kanwar
DispositionAppeal dismissed
Cases ReferredRamagya Prasad Gupta and Ors. v. Murli Prasad and Ors.
Excerpt:
.....on record--abatement is total and appeal fails.;the appellant, who knew of the death of sethani mohan kanwar in 1960, has taken no steps to implead her legal representatives. it is not disputed that the she left behind, her son panmal, the respondent, of her sons and two daughters, who are also her legal representatives. in the absence of the legal representatives, it is apparent that if the appeal was to be allowed, it would lead to passing of contradictory decrees as the decree passed by the lower appellate court in favour of sethani mohan kanwar; cannot be set aside in the absence of her legal representatives. it is well settled that in such a case, abatement is total. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 &..........to the tenant anandmal, who is a younger brother of panmal plaintiff and the son of sethani mohan kanwar, the other plaintiff (since deceased), was his landlord. the lower appellate court has noted that the property in dispute originally belonged to kanmal lodha, the father of panmal and anandmal and husband of mohan kanwar and that the property is joint and that it is no body's case that the same has been partitioned. the lower appellate court has noted that though, originally, the plaintiffs have taken the stand that the defendant was not their tenant when they served notice ex. a/1 in 1960, they bad subsequently recognised the defendant as their tenant and thus the relationship of the landlord and the tenant has come into being. there is no evidence on the record to show that.....
Judgment:

Rajindar Sachar, J.

1. The plaintiff respondent-landlords filed a suit for ejectment against the appellant-tenant-defendant on the ground that he was their tenant & has not paid rent & was in arrears of rent from July 1, 1960 to May 31, 1963 The appellant denied the allegation and maintained that be was not tenant of the plaintiffs. He also denied that he was in arrears of rent.

2. The lower court, by its judgment dated May 27, 1966, negative the plea of the appellant and held that the plaintiffs are the landlords. He also held that the plaintiffs were entitled to arrears of rent from July 1, 1860 to May 31, 1963, and thereafter, mesne profits from June 1, 1963 to the date of the institution of the suit He, therefore, decreed the plaintiffs' suit for ejectment and arrears of rent. Aggrieved against that, the tenant filed an appeal before the learned District Judge, who accepted the plea of the tenant in so far as the eviction was concerned and eel aside the trial court's decree in so far as it has decreed eviction against the tenant. It has however affirmed the judgment and decree of the trial court on the other ground, namely, decreeing of arrears of rent. The tenant has come tip to this Court in second appeal.

3. The plea of the tenant was that the plaintiffs were not his landlord. According to the tenant Anandmal, who is a younger brother of Panmal plaintiff and the son of Sethani Mohan Kanwar, the other plaintiff (since deceased), was his landlord. The lower appellate court has noted that the property in dispute originally belonged to Kanmal Lodha, the father of Panmal and Anandmal and husband of Mohan Kanwar and that the property is joint and that it is no body's case that the same has been partitioned. The lower appellate court has noted that though, originally, the plaintiffs have taken the stand that the defendant was not their tenant when they served notice Ex. A/1 in 1960, they bad subsequently recognised the defendant as their tenant and thus the relationship of the landlord and the tenant has come into being. There is no evidence on the record to show that Anandmal was the plea owner. No rent deed from Anandmal was proved. It, therefore, negatived the plea that Anandmal was the landlord of the defendant, and held that the plaintiffs were competent to file the suit. Both the courts below have thus come to a concurrent finding of fact that the plaintiffs were the landlords and were therefore competent to maintain the suit.

4. As far as the arrears of rent was concerned, no evidence was led by the defendant to show that he had paid rent for the period to the plaintiff. Indeed, be could not do so in view of the circumstances that be bad taken the stand that the plaintiffs were not his landlords. The finding therefore that the plaintiffs were entitled to recover rent from the appellant also, does not suffer from any infirmity and bat to be upheld.

5. I may note that the appeal is also likely to fail on the ground of abatement. It appears that after the institution of the appeal, Sethani Mohan Kanwar died in 1970. According to the learned Counsel for the appellant, an application for impleading her legal representatives was filed in the court of 1970 The same, however, is not traceable on record and on August 2, 1976, the counsel gave up the name of Sethani Mohan Kanwar and her name was deleted from the array of respondents. The result is that the appellant, who knew of the death of Sethani Mohan Kanwar in 1970, has taken no steps to implead her legal representatives. It is not disputed that she has left behind, her son Panmai, the respondent, other sons and two daughters, who are also her legal representatives. In the absence of the legal representatives, it is apparent that if the appeal was to be allowed, it would lead to passing of contradictory decrees as the decree passed by the lower appellate court to favour of Sethani Mohan Kanwar, cannot be set aside in the absence of her legal representatives. It is well settled that in such a case, abatement is total. vide Ramagya Prasad Gupta and Ors. v. Murli Prasad and Ors. : [1973]1SCR63 .

6. As a result I find no merit in the appeal and the same is dismissed with costs.


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