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Mohd. Ashraf Ahanger Vs. Ghulam Mohd. Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Second Appeal No. 22 of 1976
Judge
ActsJammu and Kashmir Houses and Shops Rent Control Act, 1966 - Sections 1(3) and 11(1); ;Code of Civil Procedure (CPC) , 1908 - Section 100 - Order 41, Rules 27 and 33
AppellantMohd. Ashraf Ahanger
RespondentGhulam Mohd. Shah and ors.
Appellant Advocate K.N. Raina, Adv.
Respondent Advocate S.T. Hussain, Adv.
DispositionAppeal allowed
Cases ReferredM. Govindarajulu Naidoo v. D. H. Ranga Rao
Excerpt:
- .....no. 3 inter alia on the grounds that neither respondents 1 and 2 reasonably required the suit shop for their personal occupation, nor was there any default in payment of rent. the appellant, for whom respondent no. 3 had acquired the shop as his guardian, had been paying the rent regularly. some other pleas, including one regarding invalidityof the notice for ejectment, were also raised in defence. the trial court framed a number of issues and eventually came to the conclusion that neither the appellant, the tenant, was in arrears of rent nor had he committed any default in payment of rent, creating an indefeasible right in the landlord to eject him. it returned a finding that whereas respondent no. 1 did not require the shop at all, respondent no. 2 did require it for.....
Judgment:

Kotwal, J.

1. This is defendant's appeal against whom a decree for ejectment from a shop has been passed by the trial court and confirmed by the lower appellate court.

2. Respondents 1 and 2 herein, who are father and son respectively, brought a suit for ejectment against the appellant and respondent No. 3 herein on the twin ground of personal requirement and default in payment of rent. It was alleged that both father and son reasonably required the shop for their business. The suit was resisted by the appellant and respondent No. 3 inter alia on the grounds that neither respondents 1 and 2 reasonably required the suit shop for their personal occupation, nor was there any default in payment of rent. The appellant, for whom respondent No. 3 had acquired the shop as his guardian, had been paying the rent regularly. Some other pleas, including one regarding invalidityof the notice for ejectment, were also raised in defence. The trial court framed a number of issues and eventually came to the conclusion that neither the appellant, the tenant, was in arrears of rent nor had he committed any default in payment of rent, creating an indefeasible right in the landlord to eject him. It returned a finding that whereas respondent No. 1 did not require the shop at all, respondent No. 2 did require it for expanding his business by installing a few more machines in it. On the question of comparative advantage and disadvantage also, it held in favour of respondent No. 2. The trial court consequently passed the decree prayed for,

3. Aggrieved by the aforesaid decree, the appellant challenged the same in the court of Addl. District Judge, Srinagar, Before him the appellant pressed only two issues: 'one, relating to the reasonable requirement of the second respondent, and the other in regard to the invalidity of the notice of ejectment. Both these pleas were turned down by the Additional District Judge, who consequently confirmed the findings in regard to the reasonable requirement of respondent No. 2 and the comparative advantage and disadvantage recorded by the trial court and upheld the decree passed by it. The appellant has felt aggrieved of the decree of the lower appellate Court as well and has challaned the same in this appeal.

4. During the pendency of this appeal an application under Order 41, Rule 27 of the Code of Civil Procedure was moved by the appellant praying that he may be allowed to lead evidence on an event which had taken place subsequent to the passing of the decree by the lower appellate Court, in that, the second respondent had sold the machinery installed in his own shop to one Abdul Gani Wadhera and had also let out the said shop to him. It was also averred that the second respondent had joined Government service and no more required the suit shop for his personal occupation for expanding his business by installing some additional press machinery in the suit shop. On this application this court allowed the parties to lead evidence. Whereas the appellant examined a few witnesses including Abdul Gani Wadhera, the respondent chose not to lead any evidence in rebuttal.

5. Mr. Raina appearing for the appellant has raised three contentions in support of the appeal. His first conten-tion is that respondent No. 1 being a Mohammedan father, and therefore, the sole owner of the suit shop, cannot be said to hold the shop for the benefit of his son, the second respondent, as such, no decree in respect of the suit shop could have been passed on the ground that the second respondent required it for expanding his business. The requirement, if any, ought to have been that of respondent No. 1 himself to sustain the impugned decree. His second contention is that the evidence produced by the parties does not justify a finding that respondent No. 2 reasonably required the suit shop. Lastly, the learned counsel has contended that respondent No. 2 having sold the machinery installed in his own shop to the said Abdul Gani Wadhera, his personal requirement, if any, had ceased to exist and the suit is liable to be dismissed on the happening of this subsequent event, and also on the happening of the other event that he has taken Government service in the meantime. We now proceed to examine the merit of these contentions.

6. We find no force in Mr. Raina's contention that the evidence recorded in the case cannot sustain the findings that respondent No, 2 reasonably required the suit shop for expansion of his business and that the advantage which he would get in the event of the appellant's eviction would be far greater than the disadvantage to which the latter would be put by his eviction. The mere fact that the second respondent did not appear in the witness box to support his case is hardly enough to vitiate these findings which have not only been recorded on appreciation of evidence by the trial court but have also been confirmed by the lower Appellate Court on the same basis. It is well settled that a finding in regard to reasonable requirement of the landlord, or one in regard to the comparative advantage and disadvantage of the parties recorded on appreciation of evidence, is a finding of fact pure and simple, and such a finding recorded by the two courts below would be binding on the High Court, howsoever, erroneous it may otherwise be.

7. Equally untenable is, in our opinion, the other contention of Mr. Raina that respondent No. 2 neither being the owner of the suit shop and nor even its landlord, no decree for ejectment could have been passed against the appellant in respect of the shop on the ground that it was reasonably required by the secondrespondent. The learned counsel has invited our attention to Clause (h) of Sub-section (1) of Section 11 of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966, hereinafter to be referred to as the Act, which reads as under:--

'(h) Where the house or shop is reasonably required by the landlord either for purposes of building or re-building or for his own occupation or for the occupation of any person for whose benefit the house or shop is held.'

8. The contention of the learned counsel is that a decree under this clause can be passed in two cases only: firstly, where the landlord reasonably requires the house or shop for his own occupation, and secondly, where he requires it for the occupation of any other person for whose benefit the same is held, but in no other case. Respondent No. 2 not being either the landlord qua the suit shop and nor its owner, no decree could have been passed in his favour even if he reasonably required the same for his personal occupation. True, the concept of coparcenary or joint Hindu family is unknown to Muslim law and a Mohammedan cannot acquire a right in the family property by virtue of his birth. A Mohammedan who holds any property even if he has inherited it from his father, holds it in his own right in which his sons or other prospective heirs cannot claim any right during his lifetime. Nevertheless, a Mohammedan father like any other father, has the responsibility of making his sons and other dependants earning hands, and if necessary, by settling them on his own property. Viewd thus, the expression 'or for the occupation of any person for whose benefit the house or shop is held', occurring in Clause (h) has to be given a wider meaning so as to include n its ambit not only the co-owners of the house or shop, but also all those whom the owner landlord may be under an obligation to settle on it to make them earning hands in life. Respondent No. 1, there can be no manner of doubt, was under an obligation to settle respondent No. 2 in business so as to enable the latter to earn his own livelihood. In this sense requirement of respondent No. 2 was the requirement of respondent No. 1 himself, who within the meaning of Clause (h) held the property for the benefit of respondent No. 2.

9. This brings us to the last contention that the personal requirement of respondent No. 2 having ceased to exist, the impugned decree is liable to be set aside.In order to show that after the lower appellate Court's decree, respondent No, 2 had transferred the machinery installed in it and also let out his shop to one Abdul Gani Wadhera, the appellant, on permission granted to him by this court, examined Ghulam Mohd. Khan, Ghulam Qadir and Abdul Gani Wadhera as his witnesses, besides appearing in the witness-box himself. Abdul Gani Wadhera also produced receipt Ex. P.W, AG/1 evidencing sale of the machinery for a sum of Rs. 28,531.00. It is also in the evidence of Gh. Mohd. Khan and Abdul Gani Wadhera that the shop in which respondent No. 2 was doing the business of running a press, has been let out by him to Abdul Gani Wadhera, who is in possession thereof and is doing his own business of press. There is no rebuttal to this evidence, so much so, that even respondent No. 2 has not come forward to deny these allegations. The fact is, therefore, fully established that respondent No. 2 does no more require the suit shop for expanding his aforesaid business, as he has sold the machinery and let out his own shop to Abdul Gani Wadhera where-in he was doing this business himself.

10. Mr. Tassaduque's contention, however, is that this event cannot be taken into consideration for two reasons; firstly, that the suit is not governed by the provisions of the Act, and secondly, because respondent No. 2 had by virtue of the decrees passed in his favour by the two courts below, acquired a vested right in the suit shop to evict the appellant from it, which could not have been taken away by the subsequent sale of machinery installed in it and lease of his own shop in favour of Abdul Gani Wadhera. We find no substance in these contentions.

11. Sub-section (1) of Section 11 of the Act reads as under:--

'(1) protection of a tenant against eviction.-- (1) Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired.'

12. On its plain terms, every suit for ejectment of a tenant, irrespective of what is contained in any other Act, law, order or decree of any court, shall be governed by the Act, and a decree for ejectment of the tenant would be passed only on any one or more of the grounds mentioned in this section. The Act isobviously a special legislation in so far as ejectment of tenants is concerned. It will thus clearly override the general provisions of ejectment of tenants contained in the Transfer of Property Act on the principle generalia specialibus non derogant. Once it is shown that the Act applies to the area in which the suit property is situated, the case would be presumed to be governed by its provisions, unless it is shown by the party interested in excluding its application that either the property or the tenant falls under the exemptions contained in Sub-section (3) of Section 1 of the Act. There can be no quarrel with the proposition propounded by Mr. Tassaduque that exception ar exemption has to be pleaded and' proved by the party who wants to take benefit of the same. But, the question that still remains to be answered is: who is to plead and prove the exemption contained in Sub-section (3) to his benefit in a suit for ejectment? The answer is that the exemption has to be pleaded and proved by the plaintiff who wants to exclude the application of the special provisions of the Act which indubitably abridges his right to evict his tenant, so as to bring his case within the four corners of the Transfer of Property Act. It is the landlord and not the tenant who would be benefitted on proof of the exemption. In the instant case, much less to speak of its proof, not even a pleading has been made by the plaintiffs respondents that the suit is not governed by the provisions of the Act, and if so how. On the other hand, the averments made in the plaint clearly indicate that the respondents themselves treated the suit as one governed by the provisions of the Act. A similar view was taken by one of us (Kotwal J.) in 1980 Srinagar LJ 145.

13. Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But, it is well settled that it is incumbent upon the court to take notice of events that have happened subsequent to the institution of the suit in order to give appropriate relief to the parties, Such an event may be either a subsequent change in law or even a happening of any other incident. A court can, and in fact is bound to take notice of the subsequent event even at the stage of appeal. Once it is shown that by happening of a subsequent event the relief already granted to a party has become inappropriate, the court shall take notice of it and modify its decree accordingly. The law onthe point has been authoritatively laid by their Lordships of the Supreme Court in M. Laxmi and Co. v. Dr. Anant R. Deshpande, AIR 1973 SC 171 wherein it was held (at p. 177):--

'It is true that the court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the court can take notice of such changes. If the court finds that the judgment of the court cannot be carried into effect because of change of circumstances the court takes notice of the same. If the court finds that the matter is no longer in controversy the court also takes notice of such event. If the property which is the subject-matter of suit is no longer available the court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice.....'

14. Right of respondent No. 2 to eject the appellant for expanding his business of running a press was his personal right, which ceased to exist the moment he transferred his shop along with the machinery in favour of Abdul Gani Wa-dhera. It was not such a vested right as could not have been taken away by this event. Respondent No. 2 was bound to retain this right till at least the decree in his favour became final. Such a right could of course not have been taken away in case he had executed the decree and taken possession of the suit shop. Till then, his right remained a defeasible one, which could have ceased to exist either by a subsequent change in law, or by the respondent's own act destroying the same. It is common ground that the suit shop uninterruptedly continues to be in possession of the appellant. In taking this view we are supported by a Supreme Court decision in Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli, AIR 1963 SC 358 wherein in almost similar circumstances their Lordships observed as follows (at p. 361):--

'That court was of the opinion that though the Appellate Court was entitled to take notice of the subsequent events, the suit had to be determined as on the state of facts in existence on the date of the suit, and not as they existed during the pendency of the appeal. In that view of the matter, the learned Appellate Court held that the tenants-defendants couldnot take advantage of the provisions of the Act, and could not resist the suit for possession. In our opinion, that was a mistaken view of the legal position. When the judgment of the lower Appellate Court was rendered, the position in fact and law was that there was no notification under Clause (d) of Section 88 (1) in operation so as to make the land in question immune from the benefits conferred by the Tenancy Law. In other words, the tenants could claim the protection afforded by the law against eviction on the ground that the term of the lease had expired, But it was argued on behalf of the appellants that the subsequent notification, cancelling the first one, could not take away the rights which accrued to them as a result of the first notification, cancelling the first one, could not take away the rights which had accrued to them as a result, of the first notification. In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence the court was bound to apply the law as it found on the date of its judgment. Hence, there is no question of taking away any vested rights in the landlords.....'

15. Mr. Tassaduque is, therefore, not right in contending that the moment the decree for ejectment came to be passed in favour of respondent No. 2, he got a right vested in him to eject the appellant, which could not have been taken away by the happening of any subsequent event. His reliance upon L. K. K. Gafoor v. M. T. Lakshmana Mudaliar, AIR 1980 Mad 12 is also misplaced as a departure from the rule actio personalis mori-tur cum persona was made in that case on account of the special provisions of S 10 (3) (a) (iii) of Tamil Nadu Buildings (Lease and Rent Control) Act. The other authority viz. M. Govindarajulu Naidoo v. D. H. Ranga Rao, AIR 1921 Mad 113 also relied upon by him is wholly inapplicable to the instant case for the simple reason that there has been no transfer of the impugned decree in favour of Abdul Gani Wadhera : the correctness or otherwise of the view taken therein notwithstanding. Respondent No. 2 having ceasedto require the shop for his personal occupation, the decree passed in his favour can no longer be sustained.

16. In the result, the appeal succeeds, which is allowed accordingly. The judgments and decrees of the two courts below are set aside and the respondent's suit is dismissed. In the peculiar circumstances of the case, the parties are left to bear their own costs throughout.

17. At this stage Mr. S. T. Hussain appearing for the respondents sought leave to go in appeal before the Supreme Court. This judgment is based either on the findings of fact or on law already settled by their Lordships of the Supreme Court. We see no reason to grant him the leave prayed for. The same is, therefore, declined.


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