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Jeet Mal and Jaiwat Mal Vs. Teomal S/O Sadhu Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 200 of 1977
Judge
Reported in1986(1)WLN304
AppellantJeet Mal and Jaiwat Mal
RespondentTeomal S/O Sadhu Ram
Cases ReferredIn Subhendu Prosad Roy v. Kamala Bala Roy
Excerpt:
.....'landlord'--meaning of--property purchased by 5 persons jointly--one purchaser sold a part of property to plaintiffs and attorned tenant to him--held, decree for eviction cannot be passed but plaintiffs fulfil character of landlord;the plaintiff did purchase the property from chhabal das and even according to the defendants, if they (chhabadas rellumal) had executed a sale deed in favour of the plaintiff, the plaintiffs could not become full owners of the full building as the building was jointly purchased by 5 persons from regional settlement commissioner for rajasthan.;in my opinion, though the decree for eviction cannot be passed but finding of the first appellate court holding that the plaintiffs are not landlord of the defendants cannot be sustained for the simple reasons that..........the rent as such are estopped from claiming the previous rent which is an actionable claim and not rent. para 11 of the plaint reads as under:11. prayer--it is, therefore, respectfully prayed that the hon'ble court will be pleased to pass a decree for rs. 1473/- towards the arrears of rent of 3 years and damages which the defendant earned illegally during urs fairs in 1965, 1966 and 1967, interest and cost of notice with costs of the suit in favour of the plaintiffs against the defendant.'(a) also to pass a decree for ejectment for the suit shop with costs of suit and deliver vacant possession of the same from the defendant to the plaintiffs;(b) award mesne profits from the date of suit till delivery of possession of the suit shop;(c) any other relief beneficial to the plaintiffs may.....
Judgment:

Guman Mal Lodha, J.

1. This is a civil second appeal by the plaintiffs whose suit has been dismissed by the first appellate court though it was decreed by the trial court. The plaintiffs claimed to be landlords of the property in question and they filed a suit for ejectment of the respondent defendant tenant from a shop situated in Dargah Bazar Ajmer and for arrears of rent and mesne profits.

2. The case of the plaintiffs is that they purchased the property bearing AMC No. IV/430 situated at Dargah Bazar Ajmer, from Rellumal Chhabaldas by a registered sale deed dated the 27th October, 1967. The defendant was tenant in respect of a shop on the ground floor which is a part of the said property at the rate of Rs. 13/- per month. The defendant became a tenant of the plaintiff-Jeetmal by virtue of operation of law. Rellu Mal Chhabaldas instructed the defendant to attorn the plaintiffs as landlord from the date, the plaintiff had purchased the property. According to the sale-deed, as alleged in the plaint, the plaintiff was also authorised to recover the arrears of rent by Rellumal Chhabaldas, the previous landlords.

3. The plaintiff further averred that the rent of the shop occupied by the defendant from 23rd October, 1964 to 22nd May, 1968 is due and out of Rs. 559,00 only Rs. 26/- were sent by the defendant by the money order. The plaintiff filed the suit for eviction on the various grounds. However, they are not relevant for the present case. However, Shri U.N. Bhandari, the learned counsel for the plaintiff has candidly conceded that so far as the eviction is concerned no decree can be passed and the finding cannot be entertained. But, the finding of the first appellate court that the plaintiffs are not landlords of the defendants deserves to be set aside, argued Shri Bhandari.

4. Shri Bhandhari, invited my attention to the pleadings of the parties, submitted that there is no qualified admission of the defendants, on this point. Further, the plaintiff's case is that the defendants paid the rent to these persons, Rellumal Chhabaldas earlier and Rellumal Chhabaldas sold the property to the plaintiffs.

5. Shri Rastogi JS, the learned counsel for the respondents, on the contrary submitted that so far as the question of relationship of the tenancy between the landlord and tenant is concerned, even if it is proved in a particular case, cannot result in making Rellumal Chhabaldas as landlord. Moreover, it was argued that the relationship of tenancy in favour of Rellumal Chhabaldas has not been proved, and the first appellate court has held that there was no evidence to prove it.

6. Regarding the admissions in pleadings Shri Rastogi pointed out that the admissions must be read as a whole and that being so, there are no admissions, at all.

7. I would first of all, deal with the so called admissions and the effect of them In reply to para 1 of the plaint, the defendant admitted that he is tenant but denied other allegations. In reply to para 4, the defendant in the amended written statement dated the 8th April, 1970, submitted that the defendant has sent not only Rs. 26/- but he has sent Rs. 52/- to cover the rent of 4 months from the date of sale. Para 4 of the plaint dated the 1st July, 1968, reads as under:

That the rent of the shop occupied by the defendant from 23rd October, 1964 to 22nd May, 1968 is due from the defendant to the plaintiffs which amounts to Rs. 559/- out of which Rs. 26/- were sent by the defendant by money order and now Rs. 533/- are still due from the defendant to which the plaintiffs are entitled to recover from the defendant as authorised by the said previous landlords of the defendant in the sale deed.

In para 8, the defendant submitted that he received an envelope but pleaded that there was no notice in it.

8. In para 11, the defendant submitted that the defendant sent rent for 4 months to cover the period falling due after the date of purchase of the property by the plaintiffs: that, the plaintiffs having accepted the rent as such are estopped from claiming the previous rent which is an actionable claim and not rent. Para 11 of the plaint reads as under:

11. Prayer--It is, therefore, respectfully prayed that the Hon'ble Court will be pleased to pass a decree for Rs. 1473/- towards the arrears of rent of 3 years and damages which the defendant earned illegally during Urs fairs in 1965, 1966 and 1967, interest and cost of notice with costs of the suit in favour of the plaintiffs against the defendant.'

(a) Also to pass a decree for ejectment for the suit shop with costs of suit and deliver vacant possession of the same from the defendant to the plaintiffs;

(b) Award mesne profits from the date of suit till delivery of possession of the suit shop;

(c) Any other relief beneficial to the plaintiffs may also be granted to them.

9. The definitions of 'landlord' and 'tenant' are provided under Section 3 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (here in after referred to the 'Act'). Under Sub-section (iii) of Section 3 of the Act, the 'landlord' means any person who for the time being is receiving or as entitled to receive the rent of any premises, whether on his own account or is an agent, trustee, guardian or receiver or any other person or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant.

10. Sub-section (vii) of Section 3 of the Act which defines the 'tenant' reads as under (vii) 'tenant' means:

(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surving spouses, son, daughter and other heirs in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purpose, ordinarily carrying of business with him in such premises as member of his family upto his death.

11. In Tilok Chand v. Jeetmal & Jaiwantmal S.B. Civil Review Petition No. 26/75 decided on 20-12-1979 brother Justice Shri Mahendra Bhushan considered the question regarding the concept of landlord under the Act. It was observed that it means any person receiving the rent or entitled to receive the rent of the premises, and the question whether the plaintiffs are full owners of the property or not, was not of the importance.

12. It was also held in that case, that even some of the co-owners can file a suit for eviction under the Rent Control Laws. Reliance was placed on the decision of the Supreme Court in Sriram Pasricha v. Jagannath and Ors. : [1977]1SCR395 ; and Subhendu Prasad Roy Choudhary v. Kamla Bala Roy Choudhary and Ors. : AIR1978SC835 .

13. Even when the written statement was amended, the above alleged admissions were not deleted but, it was objected to on the ground that the plaintiff were not owners of the building even if the same is proved because, it was purchased by the Regional Settlement Commissioner for Rajasthan.

14. Para 4 was kept in tact. In Para 5 it was stated that the rent due to the plaintiff is of 4 months, only, in para 11, the same was reiterated that the defendant sent rent for 4 months to cover the period falling due after the date of purchase of the property by the plaintiffs, and that the plaintiffs having accepted the rent as such are estopped from claiming the previous rent which is an actionable claim and not rent.

15. It would be seen from the above that the defendants have pleaded payment of rent to the plaintiffs and in substance, they claimed that the rent is due only for 4 months. Although they have also challenged their right to file the suit because there were some more owners of the property as it was purchased by the 5 persons and the sale is only by two persons.

16. Shri Rastogi submitted that in M.M. Quasim v. Manohar Lal : [1981]3SCR367 it has been laid down that normally the Supreme Court will accept what High Court states in its judgment. In that case, the case was remanded as some aspects were disposed of cursorily by the High Court. It was held that the definition of 'landlord' in Section 2(d) is couched in very wide language. However, this wide amplitude of the expression has been cut down by the explanation appended to Clause (c) of Sub-section (1) of Section 11.

17. Shri Rastogi in all fairness when called upon to do so which is analogous explanation to Clause (c) of Sub-section (1) of Section 11 of the Bihar Building (Lease, Rent and Eviction) Control Act which has been discussed in Bihar Case (M.M. Quasim v. Manhor Lal Sharma) (supra), submitted that there is no such explanation.

18. In the Bihar Law, the explanation required that the landlord must prove when the case is on the basis of necessity that he has a right against the whole world to occupy the building himself and exclude any one holding title lesser than his own.

19. In that case, the eviction was on the ground of the bonafide requirement by one of the co-owner, and the co-owner had lost interest in property as a result of decree in petition suit. It was on this count that the appellate Court took notice of the subsequent event and mould relief accordingly.

20. Obviously, in the Rajasthan Premises(Control of Rent & Eviction) Act, the definition of the 'landlord' has not been restricted, fettered or cut down by any such explanation.

21. Shri Rastogi also referred to the decision of this Court (DB) in Shivbrat Lal v. Ahsan Ali 1982(1)ACJ p. 752 where in it was held that under the law of Rajasthan Rent Control even after the determination of lease, the tenant remained statutory tenant and he cannot be evicted and he would not become a trespasser. It was also held that in the case Lal Mohammed (one of the landlords) had relinquished his right during the pendency of the suit and one of the persons in whose favour the rights have been relinquished is Ahsan AH (the other landlord), and therefore, the abatement of suit cannot take place.

22. In para 5 and 6, their Lordships while considering the definition, of the tenant, held that the petitioner was not a trespasser and no abatment can take place. It was also held that in such situation where the right has been relinquished by one, the suit must be filed by all the co-owners.

23. Shri Rastogi also pointed out that in Sobhrajmal v. Narain Dass S.B. Civil Second Appeal No. 167/1974 decided on August 1, 1975 it was held that once it is found that there are other sharers in the property, the plaintiff alone was not competent to determine the tenancy of the defendant-tenant.

24. However, as pointed out in Shriram Pasricha v. Jagannath : [1977]1SCR395 (supra), the Supreme Court has observed that the co-owner 'landlord' is an 'owner', and the suit is maintainable by him. In para 30 of the above decision, it was expressly observed that a co-owner is as much an owner of the entire property as any sole owner of a property is.

25. In Subhendu Prosad Roy v. Kamala Bala Roy : AIR1978SC835 , (supra), their Lordships of the Supreme Court again held that even assuming that notice was not given on behalf of one of the co-owner landlords, yet the notice would be good and valid. The decision in Sriram Pasricha's case (supra) was relied upon in Subhendu Prasad Roy's case (supra).

26. In the instant case, the obvious position is that the plaintiff did purchase the property from Chhabal Das and even according to the defendants if they (Chhabal Das Rellumal) had executed a sale deed in favour of the plaintiffs the plaintiffs could not become full owners of the full buildings as the building was jointly purchased by 5 persons from the Regional Settlement Commissioner for Rajasthan and thereafter, as per the above pleadings which I have expected, the defendants contested that they paid the rent and only 4 months rent was due.

27. Before the first appellate Court, it was argued that merely because in the written statement it has been mentioned that the rent was sent to the plaintiffs and only 4 months rent is due to them, this Cannot debar the defend ants from pleading they are not owners and cannot bring the suit. Be that as it may the facts remain that the present one is not strong case in so far as the case of the defendant with regard to the co-owner's plea is concerned because as held by their Lordships of the Apex Court(supra), a co-owner can file a suit.

28. In my opinion though the decree for eviction cannot be passed but finding of the first appellate court holding that the plaintiffs are not landlord of the defendants cannot be sustained for the simple reasons that even as co-owners and even according to to the definition of the landlord under the Rajasthan Rent Control laws, as per the pleadings of the parties the plaintiffs fulfil the character of the landlord.

29. It would be a different situation if the other co-owners challenge the right of the plaintiff who filed the suit or if they file the suit against the defendants and then the question would arise regarding the title and ownership of the property. In such a situation the finding of this Court would not be binding either way nor res-judicata but of that the plaintiff fulfilled the character of the landlord. In view of the above the appeal is partially accepted to this extent only that the plaintiffs are the landlords of the defendants but it would be subject to the any decision on title suit or any decision in suit which is filed either by the co-owners or other persons who purchased the property along with Rellumal and Chhabaldas. In other respects the judgment decree of the first appellate court dismissing the suit of eviction is confirmed.

30. The parties would bear their own costs through out.


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