w w w . L a w y e r S e r v i c e s . i n



Shrimati Rukhmanibai (Dead) Through Her L.R. :- Gendalal Gupta, Shri Hari Prasad Gupta v/s Achuti


Company & Directors' Information:- SHRI HARI CORPORATION LIMITED [Strike Off] CIN = U15422PN2012PLC142075

    Second Appeal 373 of 1986

    Decided On, 20 March 2008

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE A.K. SHRIVASTAVA

    For the Appearing Parties: A.G. Dhande, Dharmendra Soni, K.N. Agrawal, Advocates.



Judgment Text

(1.) FEELING aggrieved by the impugned judgment and decree dated 28/3/1986 passed by learned Additional District Judge, Burhanpur in Civil appeal No. 18-A/84 dismissing the suit, this second appeal has been preferred by the plaintiff.

(2.) ORIGINAL plaintiff is Smt. Rukhmani Bai, who filed a suit on 17/4/1979 i. e. near about 29 yeas ago for eviction on the ground envisaged under section 12 (1) (a) of the M. P. Accommodation Control act, 1961 (in short 'the Act') against original defendant Ramdayal. The suit was decreed by the learned trial Court and the appeal which was filed by the defendant/respondent has been allowed by the impugned judgment and decree and the suit of plaintiff has been dismissed.

(3.) ORIGINAL plaintiff/appellant Smt. Rukhmani Bai died during the pendency of this second appeal and her L. R. Gendalal Gupta has been brought on record as appellant. During the pendency of this appeal original defendant/tenant Ramdayal also died and on filing of application for substitution this Court on 26/4/2002 directed to bring his L. Rs. on record.

(4.) IN brief the suit of plaintiff is that the suit house was purchased by her from one Goura Bai vide registered sale-deed dated 26/2/1944. The said house was purchased by her husband in her name and after purchasing the suit property, possession was obtained. In the suit house earlier some tenants were residing and thereafter the defendant on being asked by him to let out the suit accommodation, he was inducted as tenant by the husband of plaintiff Bajrang Lal Gupta at the rate of Rs. 1650 paise which comes to Rs. 198/-yearly, but the tenant was paying rs. 200/-per annum. The suit house was given to the defendant during the life time of Bajrang Lal, husband of plaintiff for 11 months and a written rent note was executed. After the efflux of contractual tenancy, the tenant continued to reside in it on the same terms and conditions and on same rate of rent Rs. 16-50 paise per month. The tenancy is monthly and commences from 21st day of each month and terminates on 20th day of next month. The husband of plaintiff, namely, Bajrang Lal died on 20th january, 1971 and the rent was paid by the tenant up-to 21/1/1971, viz. , till the date of death of her husband and from that date despite demand being made from the defendant rent has not been paid to the plaintiff.

(5.) THE plaintiff through her Advocate sent notice dated 4/12/1978 to the defendant and made a demand to make the payment of rent to her excluding the rent which has become time barred. By the said notice tenancy of defendant has also been determined. Despite notice dated 4/12/1978 has been received by the defendant on 19/12/1978, defendant neither paid nor tendered rent to the plaintiff nor gave possession of the suit accommodation. Hence the plaintiff prayed that the rent which is within limitation, viz. , w. e. f. 21/3/1976 to 20/3/1979 which comes to rs. 600/-be paid and the possession of the suit accommodation be also delivered to her.

(6.) THE defendant denied the plaint averments and has pleaded that plaintiff is not the owner of the suit property and the suit accommodation has not been purchased by plaintiff's husband in the name of plaintiff. The defendant was never inducted as tenant of plaintiff. The execution of rent note for 11 months at the rate of Rs. 16-50 paise per month has been specifically denied. In the alternative a plea has also been raised that in case it is found that the rent note was executed in the name of defendant, the same be held to be Barainam (sham).

(7.) ACCORDING to the defendant he is residing in the suit accommodation since 1956 and has acquired ownership right by way of adverse possession. Since he is not the tenant, the question of paying rent does not arise. It has also been pleaded by the defendant that he never paid any rent.

(8.) HOWEVER, in the written statement it has been specifically admitted that notice dated 4/12/1978 sent by the plaintiff was received by him, but the said notice is illegal and since he is not the tenant, therefore, the question of payment of rent and giving possession of the suit accommodation to plaintiff does not arise.

(9.) IN the special pleas it has been pleaded by the defendant/tenant that indeed he is the owner of the suit accommodation. The defendant was not having cordial relations with Narayan Singh who was the son of erstwhile owner of suit accommodation Goura Bai, widow of Gopal Singh and because said Goura Bai wanted to get the suit property sold and since defendant was having good relations with Hari Prasad whose sister is plaintiff Smt. Rukhmani Bai and because Hari Prasad was not having sound financial condition, as such suit property was purchased by the defendant in the name of plaintiff Smt. Rukhmani Bai and in this manner the sale-deed was executed on 26/2/1944 in the name of plaintiff Smt. Rukhmani Bai. The defendant is possessing the suit accommodation as owner and he was never inducted as tenant. An alternative plea is also raised by the defendant that in case he is not found to be the owner of the suit property, since he has acquired ownership right by way of adverse possession, therefore, this suit is not maintainable.

(10.) LATER on by amending his written statement defendant added para 16 and pleaded that he was neither inducted as tenant by the husband of plaintiff Bajrang Lal nor he paid any rent to said Bajrang Lal. However, in case it is found that defendant wrote any rent note dated 21. 9. 1954 in favour of Bajrang Lal since contractual period of tenancy came to an end on 20/8/1955 and thereafter defendant never paid any rent to Bajrang Lal, therefore, in this manner also the defendant has perfected his ownership right by way of adverse possession. On these premised pleadings it has been prayed that this suit be dismissed.

(11.) THE learned trial Court framed necessary issues and after recording the evidence of the parties came to hold as under :

(i) the suit accommodation is owned by plaintiff; (ii) defendant is the tenant of plaintiff; (iii) suit accommodation was given by plaintiff's husband Bajrang Lal to defendant on tenancy basis on 21/9/1954 at the rate of Rs. 16-50 paise per month, but this fact has not been proved that in place of yearly rent rs. 198/-, defendant was paying yearly rent Rs. 200/-; and (iv) rent note Ex. P-6 dated 21/9/1954 executed between defendant and plaintiff is not Barainam.

Since defendant did not deposit the rent for which he was legally bound to deposit under section 13 (1) of the Act, his defence was struck off under section 13 (6) of the Act. Eventually, the learned trial Court passed decree of eviction as well as payment of rent w. e. f. 21/3/1976 till the date possession is delivered to the plaintiff.

(12.) THE defendant, feeling aggrieved by the judgment and decree passed by the learned trial Court preferred first appeal which has been allowed by holding that :

(i) rent note Ex. P-6 was executed between plaintiff and defendant; (ii) however, the rent note Ex. P-6 is a sham document; (iii) on the basis of execution of rent note Ex. P-6 which is a sham document, relationship of landlord and tenant between the plaintiff and defendant is not established; (iv) after efflux of period of contractual tenancy of 11 months mentioned in document Ex. P-6, the defendant did not pay rent of the suit accommodation to plaintiff or to her husband Bajrang Lal; and in this (v) the suit is barred by time in view of Article 67 of the Indian Limitation Act. manner the present second appeal has been filed by landlord/plaintiff.

(13.) ON 11/1/1986 this Court admitted the second appeal on the following substantial questions of law :

" (i) Whether there is relationship of landlord and tenant between the parties to the suit on the basis of Kirayanama ex. P-6 ? (ii) Whether on the material on record, the finding of the lower appeal court that the Kirayanama Ex. P-6 was 'barainam' is perverse ? (iii) Is the suit barred by time ?"

(14.) THE contention of Shri A. G. Dhande, learned senior counsel for the appellant/plaintiff is that the relationship of landlord and tenant between the parties has been duly established by Kirayanama (rent note) Ex. P-6 the execution of which has not been turned down even from the evidence of defendant. Further it has been contended by learned senior counsel that the finding of the lower appellate Court that rent note Ex. P-6 was barainam (sham) is perverse and the suit of plaintiff cannot be said to be barred by time. The contention of learned senior counsel is that the learned trial Court has assigned cogent reasons and passed the decree of eviction. The defendant/tenant also did not deposit rent in terms of section 13 (1) of the Act and the learned trial Court struck off his defence by exercising powers conferred to it under section 13 (6) of the Act and, therefore, since no rent has been deposited during the pendency of the suit by the tenant, the decree of eviction has been rightly passed by the learned trial Court.

(15.) ON the other hand, Shri K. N. Agrawal, learned counsel appearing for the respondent/tenant has argued in support of the impugned judgment and has submitted that if it is held that defendant was inducted as a tenant on the basis of Kirayanama (Ex. P-6) for 11 months, after the expiry of period of contractual tenancy, the status of defendant is tenant at sufferance. In this context he has placed reliance on two decisions of the Supreme Court Bhawanji Lakhamshi and others v. Himatlal jamnadas Dani and others AIR 1972 SC 819 and Ganga Dutt murarka v. Kartik Chandra Das and others AIR 1961 SC 1067.

(16.) HAVING heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed and the suit is liable to be decreed.

(17.) REGARDING substantial questions of law no. (i) and (ii) :learned trial Court while deciding Issues no. 3 as well as 4 (a) and (b) gave a specific finding that the rent note (Kirayanama) Ex. P-6 dated 21/9/1954 has been executed by the defendant in favour of plaintiff. The learned first appellate Court also in para 7 of the impugned judgment held that the execution of rent note Ex. P-6 in favour of plaintiff by defendant has been proved. The finding so arrived at by the two Courts below is a pure finding of fact. On going through document Ex. P-6 Kirayanama (rent note) it is luminously clear that defendant denoting himself to be the tenant of the suit accommodation agreed to pay monthly rent at the rate of Rs. 16-50 paise. The execution of Kirayanama (rent note) Ex. P-6 dated 21/9/1954 has been found to be proved by the two Courts below which is a pure finding of fact and defendant never assailed the said finding on that issue before the first appellate Court by filing cross-objection and it had attained finality. Hence, the relationship of landlord and tenant between plaintiff and defendant has been established by this document and for no rhyme or reason it could be held that relationship of landlord and tenant is not proved through this document. Indeed the learned first appellate court by misconstruing this document on irrelevant consideration came to hold that though the execution of rent note is proved but relationship of landlord and tenant is not proved. To me, after execution of the rent note and since it has been found to be proved, for all practical purposes, the defendant is tenant of plaintiff. I may further add that there is yet another important document Ex. PD-5 which is the certified copy of application submitted by defendant Ramgopal for obtaining Ration Card and in this application he has admitted plaintiff Rukhmani Bai to be his landlord. Thus by virtue of this document also the case of plaintiff is established that the relationship between her and defendant is of landlord and tenant. Thus I have no scintilla of doubt that by these two documents, the relationship of landlord and tenant between the parties has been fully established.

(18.) TRUE, after expiry of contractual tenancy of 11 months, no fresh rent note was executed between the plaintiff and defendant. But, it will not somersault the case of plaintiff. Now it is well settled in law that after the expiry of contractual tenancy, the tenant still remains as tenant and he becomes statutory tenant thereafter. In this context, I may profitably place reliance on Division Bench decision of this Court Premdas v. Laxmi narayan 1964 JLJ 87 and Single Bench decision of this Court Gulshan (Smt. , Dr.) v. Sahdevi Pal (Smt.) and another 1985 JLJ 527. The division Bench in the case of Premdas (supra) in paras 6 and 7 has specifically held that after the expiry of contractual tenancy, under section 12 of the Act the tenancy rights are protected and the tenant would be statutory tenant. Needless to emphasis the suit on the ground envisaged under section 12 (1) (a) of the Act was filed against the tenant after sending notice dated 4/12/1978 to the defendant making demand of rent w. e. f. 21/3/1976 to 20/3/1979 and the receiving of said notice has been admitted by the defendant in his written statement.

(19.) IN the present case, admittedly no rent has been deposited by the tenant in the trial Court in terms of section 13 (1) of the Act. It is well settled that in a suit on the ground referred to in section 12 of the Act or in an appeal or other proceedings the tenant is obliged to deposit entire rent due as required under section 13 (1) of the Act and further he is required to deposit monthly rent by the 15th day of each succeeding month in terms of section 13 (1) of the Act. Thus, if the tenant has not deposited the rent in terms of section 13 (1) of the Act, the consequences are shown under section 13 (6) of the Act and under the said provision his defence would be struck off. Admittedly the tenant/respondent did not deposit the rent in terms of section 13 (1) of the Act and, therefore, the learned trial Court rightly struck off his defence vide order dated 28/1/1983. Indeed in the judgment of learned trial Court (para 25) while deciding issue no. 1 (b) this finding finds place. The Supreme Court in the case of R. C. Tamrakar and another v. Nidi Lekha 2002 (2) JLJ 69 has held that if the tenant has not deposited the rent in terms of section 13 (1) of the Act, the eviction decree would be passed.

(20.) THE substantial questions of law no. (i) and (ii) are thus answered that relationship of landlord and tenant between the parties has been proved and the finding of learned first appellate Court holding Kirayanama (rent note) Ex. P-6 to be 'barainam' (sham) is perverse and is based on irrelevant consideration by misinterpreting material documents rent note ex. P-6 and Ex. PD-5 clearly establishing the relationship between the plaintiff and defendant to be of landlord and tenant. The finding of learned first appellate Court is against the law without paying any heed to the situation that even afte

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r the expiry of contractual tenancy, the status of tenant would be of statutory tenant. (21.) REGARDING substantial question of law no. (iii) :the suit of plaintiff cannot be said to be barred by time because in view of the Constitution Bench decision V. Dhanapal Chettiar v. Yesodai Ammal 1980 JLJ 1 quit notice under section 106 of the T. P. Act and the determination of tenancy is not required to the accommodation where the Rent Control legislation (in the present case 'the Act') is applicable. In a latter decision Munshi Khan v. Maya Devi 1993 JLJ 136 by placing reliance on the decision of the Supreme Court v. Dhanapal Chettiar (supra) in para 10 it has been laid down by single Bench of this Court that concept of contractual tenancy has been totally vanished. According to the learned first appellate Court the suit is barred by time because after termination of contractual tenancy on 20/8/1955, the present suit which has been filed on 17/4/1979 has become barred by time as the same has been filed after 12 years. To me, the said finding is palpably incorrect approach of law in view of the decision of Constitution Bench V. Dhanapal Chettiar (supra) and hence the suit cannot be said to be barred by time. The substantial question of law is thus answered accordingly. (22.) RESULTANTLY this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned first appellate Court dismissing the suit of plaintiff/respondent is hereby set aside and the judgment and decree passed by the learned trial Court is hereby restored. The respondents shall bear the cost of appellant. Counsel's fee Rs. 2,000/-, if pre-certified.
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