2007 Supreme(Raj) 1579
RAJASTHAN HIGH COURT AT JAIPUR BENCH
R.M.Lodha, J.
Bhagwan Das - Appellant
Versus
Brij Mohan and another - Respondent
S.B. Civil Second Appeal No. 138 of 1989.
Decided On : 20-02-2007
Advocates:
For the Appellant:G.K. Garg, Advocate.
For the Respondents:J.P. Goyal, Advocate.
Headnote:
(a)Houses & Rent – joint tenancy – Distinction – Shot lent to Defendant 1 – H and father defendant 2B – H and B executed rent note – business not joint family – held, both co – tenants holding property jointly – court errored in holding them joint family firm – occupy shop as tenants – in – common – on H death tenancy rights not on legal heirs – appeal allowed - Eviction suit – Suit by Co – owner – Maintainability – Held, maintainable – co – owner objection absent.
(b) Civil Procedure Code, 1908 – S. 100 Second Appeal – New Plea – Rent payment default – not raised before appellate court – not be entertained first time in second appeal - Eviction – Denial of title – Effect – In rejoinder plaintiff categorically stated Defendant accepted plaintiff as landlord – eviction sought by plaintiff not allowed on ground of title denial - Houses & Rent – Eviction – Bona fide necessity – Comparative hardship – Plaintiff specific plea to tart separate business from father – can’t be compelled for joint business – shop occupied since 60 years by defendants – plaintiff in 1972 purchased shop for own business – established bonafide necessity – not difficult to find alternate shops for tenants – plaintiff facing comparative hardship – shop size says partial eviction not fulfill plaintiff purpose – eviction decreed.
JUDGMENT
1. - The original plaintiff is in appeal aggrieved by the judgment and decree dated 21st of April, 1989, passed by Additional District Judge No. 2, Bharatpur, whereby he affirmed the judgment and decree dated 3rd of June, 1983, passed by Additional Munsif No. 2, Bharatpur, dismissing his suit for eviction.
2. The dispute concerns a shop situate at Sarafa Bazar, Bharatpur. The description of the shop has been given in Paragraph 1 of the plaint.
3. In the suit filed by Bhagwan Das (the plaintiff) on 30.1.1974, against Brij Mohan (Defendant No. 1) and Gobind Prasad (Defendant No. 2), he sought their eviction on the ground of necessity and default.
4. The plaintiff averred that the suit shop initially belonged to one Champa Lai. The defendant No. 1 and the father of defendant No. 2 took the said shop on a monthly rent of Rs. 50/-. Champa Lal died and after his death the suit shop was purchased by the plaintiff from s his legal heirs for a sum of Rs. 15,000/-. The legal heirs of Champa Lai, vide notice dated 9th of June, 1972, intimated to the defendants about the sale of shop to the plaintiff. The defendants, thus, became plaintiff's tenant and the relationship of landlord and tenant came into existence between them.
5. As per the case set-up by the plaintiff, despite demand, the defendants failed to pay rent since 15th of May, 1972, and, thereby they became defaulter.
6. The plaintiff averred in the plaint that he has been carrying on business of Sarafa at his father's shop. He has now acquired sufficient 5 experience to do separate business and for that he needs the suit premises reasonably and bonafide. The defendant No. 1 has not been carrying business in the suit shop as he started his business elsewhere. The original tenant already dead and his son Gobind Prasad has been carrying on business in the suit shop of which he has no right under the Rajasthan o (Control of Rent and Eviction) Act, 1950. The plaintiff, thus, prayed that decree for eviction be passed against the defendants and they be directed to pay arrears of rent and also mesne profits.
7. The defendants filed written statement on 20th July, 1974 and traversed plaintiff's claim. According to the defendants, that suit shop was is jointly owned by Champa Lal and Poonam Chand and it was jointly let out by them to the defendant No. 1 and the father of defendant No. 2 and from time to time the rent of the shop was increased which was presently at the rate of Rs. 50/- p.m.
8. The defendants denied that the plaintiff purchased the shop from the legal representatives of Champa Lal after his death. They did no accept that all the legal representatives of Champa Lal had sold the suit shop to the plaintiff.
9. The defendants set-up the case in the written statement that since the plaintiff has transferred the suit premises legally, no relationship of landlord and tenant between them has come into existence.
10. The defendants stated in the written statement that they tendered the rent to the plaintiff under the bonafide legal impression that payment of rent made to the co-lessor shall be treated in law the rent to the owners so that they do not incur liability of default.
11. The defendants denied the plaintiff's case of reasonable and bonafide necessity and pleaded that the plea of reasonable and bonafide necessity was false, fabricated and actuated with ulterior motive. The defendants denied that the defendant No. 1 was not carrying on business in the suit shop and that he was carrying on business in some other shop and that they were defaulters. In additional pleas the defendants submitted that the shop has been on rent with the fore-fathers of the defendants since 11th of January, 1943. Initially the rent was Rs. 10.50 p.m. which was increased from time to time and was Rs. 50/- at the time of filing of the suit. The plaintiff wanted to increase the rent from Rs. 50/- to Rs. 100/- and though they did not desire to increase the rent out of compulsion, they agreed for the ren
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