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1979 Supreme(Raj) 472

RAJASTHAN HIGH COURT
S.K.Mal Lodha, J.
Gopi Kishan and others - Appellant
Versus
Narsing Das and others - Respondent
S.B. Civil Second Appeal No. 95 of 1968.
Decided On : 25-12-1979

Advocates:
For the Appellants:Mr. N.M. Lodha, Advocate.
For the Respondents: Nemo.

A transfer of immovable property belonging to the Board shall be made by an instrument in writing executed by the President and attested by the Secretary.

Headnote:
LANDLORD AND TENANT - LEASE - VALIDITY - TRANSFER OF IMMOVABLE PROPERTY - REQUIREMENT OF WRITTEN INSTRUMENT EXECUTED BY PRESIDENT AND ATTESTED BY SECRETARY - NON-COMPLIANCE - NO RELATIONSHIP OF LANDLORD AND TENANT CREATED - POSSESSION OF LICENSEE - REVOCABLE - SUIT FOR INJUNCTION - NOTICE UNDER SECTION 271 OF RAJASTHAN MUNICIPALITIES ACT, 1959 NOT REQUIRED.
Fact of the Case:

Plaintiff's father took land on lease from Municipal Board, Jodhpur, and after his death, plaintiff remained in possession. Municipal Board leased the land to defendant No. 2 without giving notice to quit to the plaintiff. Plaintiff filed a suit for permanent injunction restraining the Municipal Board and defendant No. 2 from evicting him from the land.
Finding of the Court:

The rent-note executed by the plaintiff's father was not in accordance with the provisions of Section 80 (2) of Jodhpur Municipal Act, 1943, and therefore, not binding on the Board. There was no relationship of landlord and tenant between the plaintiff and his father Manraj and the Municipal Board Jodhpur. Manraj's possession over the Chowakari was that of licenses, i.e., his possession was permissive. After the death of Manraj or, at any rates after the revocation of the licence, the plaintiff had no right to remain in possession of the Chowkari in question. The suit for injunction is maintainable without notice under Section 271 of Rajasthan Municipalities Act, 1959.
Issues: 1. Whether there was a relationship of landlord and tenant between Manraj and Narainsingh Dass and Municipal Board, Jodhpur? 2. Whether the Municipal Board was authorised to transfer the `Chowkari' in question to the proprietors of defendant No. 2 without giving a notice to quit to the plaintiff? 3. Whether the suit as instituted by the plaintiff is not maintainable and as no notice as required by Section 271 of Rajasthan Municipalities Act, 1959? 4. Whether agreement Ex. A-1 is proved to have been executed by the plaintiff Narainsingh Dass and his brother Kedardas in favour of Saligram, after obtaining a sum of Rs. 2,100/- for the sale of the goodwill of their business, which they used to transact in the shop, constructed by them on this Chowkari.
Ratio Decidendi: 1. The rent-note (Ex. 1), executed in respect of the Chowkari in question, was not executed in accordance with the provisions of Section 80 (2) of Jodhpur Municipal Act, 1943, it is not binding on the Board. It, therefore, follows that there was no relationship of landlord and tenant between the plaintiff and his father Manraj and the Municipal Board Jodhpur. 2. The Licence impliedly stood revoked when the Administrator of defendant No. 1 passed an order on July 4, 1962 renting it from November 1, 1961 @ Rs. 80/- p.m. 3. Section 271 of the Rajasthan Municipalities Act, amongst others, lays down that no suit shall be instituted against the Board in respect of any act done or purports to have been done in an official capacity, until the expiration of two months next after notice thereof in writing has been, in the case of a board, left at its office explicitly stating the cause of action the nature of the relief sought the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. Sub-section (3) of Section 271 of the Rajasthan Municipalities Act lays down that nothing in sub-section (1) shall be constructed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commentment of the suit or proceeding. The suit is for injunction.
Final Decision: Appeal accepted. Judgment and decree of the learned District Judge dated October 3, 1967 set aside and that of the Civil Judge, Jodhpur dated September 11, 1964 restored by which the suit of that plaintiff-respondent was dismissed.

JUDGMENT

1. - This is appeal by defendant, proprietors of firm Gopi Kishan Salagram (Gopi Kishan Salagram, Tara Chand and Tikan Chand) against the judgment and decree dated October 3, 1967, passed by the learned District Judge, Jodhpur, by which he set aside the judgment and decree of the learned Civil Judge, Jodhpur, dated September 11, 1964. The learned District Judge has decreed the suit of the plaintiff-respondent No. 1 for permanent injunction restraining the Municipal Council, Jodhpur (defendant No. 1) and the defendant-appellants from evicting the plaintiff from the land (Chowkari) in dispute. Defendant No. 3 was Kedardas, who has been impleaded as respondent No. 2 in this appeal and defendant No. 1 has been impleaded as respondent No. 3.

2. Succinctly put the case of the plaintiff was that his deceased father Manraj took the land in dispute on lease from the Municipal Board, Jodhpur on a monthly rent for Rs. 3/9 annas on October, 4/3, 1944 and executed a rent-note (Ex. 1) and that the plaintiff's father Manraj was put into exclusive possession of the land, who occupied in it the capacity of a tenant during his life time. After the death of Manraj, the plaintiff remained in its peaceful possession and paid rent to the Municipal Board upto June 30, 1962. The case of the plaintiff further is that thereafter, the Municipal Board did not accept the rent from him and, therefore, he sent a sum of Rs. 21/56 P. on September 24, 1962 by Money Order but the Money Order was not accepted. The land in dispute was leased out to defendant No. 2 appellant on July 4, 1962 on a monthly rent for Rs. 80/- by the administrator of the Municipal Board. The rent was made payable from November 1, 1961. In these circumstances, it was proved by the plaintiff that the Municipal Board and defendant No. 2 be restrained from disturbing his long and peaceful possession over the land in question.

3. Defendant No. 1 filed a written statement on December 7, 1962. It was pleaded that the land in dispute was allotted to the father of the plaintiff as a Licencee and that the relationship of the landlord and tenant never existed between the plaintiff's father and the Municipal Board. Defendant No. 1 case further was that it had every right to revoke the licence at any time and that the possession of the land in dispute had already been delivered to Salagram and Tara Chand (two proprietors of defendant No. 2's firm) by the Board in support of this, it relied on the application of the plaintiff dated February 29, 1962. The defendant-appellants filed a joint written statement. It was alleged by them that the plaintiff and defendant No. 3 had sold their goodwill of their business for Rs. 2,100/- to them and that had already transferred the possession of the land in dispute. The case of the defendant-appellants was that after delivering the possession of the land in dispute the plaintiff had dishonestly tried to repudiate the contract and submitted a petition by way of objection to the Administrator, Municipal Board with an ulterior objection so that the Municipal Board may not grant fresh lease of the land to them. These defendants supported the stand of the Municipal Board that the plaintiff's father was a mere license. Defendant No. 3 Kedardas filed a separate written-statement on April 27, 1963. He admitted in the written statement that he had transferred the goodwill of the business and the possession of the land in dispute to the proprietors of defendant No. 2 and that the land in dispute was taken by the plaintiff's father for a joint family business on October 1, 1944. He asserted that he, being a member of the joint Hindu Undivided family, was in joint possession of the land in dispute along with the plaintiff. The learned Civil Judge framed issues on April 8, 1963 and an additional issue was framed on May 14, 1963. The learned Civil Judge recorded evidence of the parties and decided issue Nos. 1 to 4 and 6 and 8 against and issue No. 5 was decided against

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1979 Supreme(Raj) 472

RAJASTHAN HIGH COURTS.K.Mal Lodha, J.Gopi Kishan and others - AppellantVersusNarsing Das and others - RespondentS.B. Civil Second Appeal No. 95 of 1968.Decided On : 25-12-1979

A transfer of immovable property belonging to the Board shall be made by an instrument in writing executed by the President and attested by the Secretary.

RAJASTHAN HIGH COURT
S.K.Mal Lodha, J.
Gopi Kishan and others - Appellant
Versus
Narsing Das and others - Respondent
S.B. Civil Second Appeal No. 95 of 1968.
Decided On : 25-12-1979