RAM AVTAR Vs. SANJEEV KUMAR

JUDGEMENT

(1.) THESE two appeals have been filed challenging the impugned judgment of the Trial court dated 30.10.2004 whereby two suits were disposed of in favour of the respondent-Sh. Sanjeev Kumar. One suit was the suit filed by the respondent, Sh. Sanjeev Kumar against his father Sh. Ram Avtar and Sh. Rajeev Kumar and Sh. Manoj Kumar,-the latter two being his brothers i.e. sons of Sh. Ram Avtar. The second suit was suit filed by the father, Sh. Ram Avtar against Sh.Sanjeev Kumar. In the suit filed by Sh. Sanjeev Kumar, Sh. Sanjeev Kumar claimed that he was the exclusive owner of the business carried on in the name of M/s. Aggarwal Gift Emporium at the tenancy premises 19/1, Yusuf Sarai, New Delhi. This was a suit for an injunction to restrain the father and the other two sons, i.e. brothers of Sh.Sanjeev Kumar, from interfering with the business of the shop because it was a sole proprietorship concern of Sh. Sanjeev Kumar. Sh. Sanjeev Kumar denied that the business was an HUF business as was claimed by the father, Sh. Ram Avtar and the other two brothers. In the suit filed by Sh. Ram Avtar, the relief claimed was of possession and mesne profits of the tenanted shop premises bearing no.19/1, Yusuf Sarai, New Delhi which Sanjeev Kumar was claiming to be in his exclusive tenancy and possession. In this suit, Sh. Ram Avatar claimed that Sh. Sanjeev Kumar was not the exclusive tenant of the shop and that the tenancy was of the co- parcenary/HUF of Sh. Ram Avatar and all his three sons, i.e. not only Sh.Sanjeev Kumar but also besides of Sh. Ram Avtar also of Sh. Rajeev Kumar and Sh. Manoj Kumar. At this stage, I must note that it is agreed to by counsel for the parties that though the rent receipts with respect to the shop are in the name of "Ram Avtar, Anand Kumar and M/s. Laxmi/Lachmi Narain & sons", no rights in the shop are being claimed by Sh. Anand Kumar and M/s. Laxmi/Lachmi Narain & sons, Anand Kumar and Laxmi Narain being the brothers of Sh.Ram Avtar. I am therefore in this judgment not pronouncing on the issue with respect to any rights of M/s. Laxmi/Lachmi Narain & sons and Sh.Anand Kumar in the suit shop, and am pronouncing on the inter-se rights of Sh. Ram Avtar and all his three sons qua the tenanted shop.

(2.) BEFORE the Courts below, and before this Court, there were/are two main issues which were/have been urged and argued:

(3.) BEFORE the Trial Court, the rent receipts with respect to the suit shop have been exhibited as Ex.P3 to Ex.P6, and which rent receipts show that they have been issued by the landlord in the name of the tenant as per the lease deed, Ex. DW5/1, i.e. in the joint names of Sh. Ram Avtar, Sh. Anand Kumar and M/s. Laxmi/Lachmi Narain & sons. I have already noted above that the other co-tenants as per the rent receipts i.e brothers of Ram Avtar namely Sh. Anand Kumar and M/s. Laxmi/Lachmi Narain & sons have given up their rights in the suit shop/tenancy premises and I am therefore now concerned only with the inter-se rights of Sh. Ram Avtar and his three sons in the suit shop. I am again repeating this because without the consent of the landlord, there cannot be any alteration with respect to the constitution of the tenancy, i.e. the surrender of the tenancy by some of the co-tenants can only come into effect if there is a consent to the same by the landlord, inasmuch as tenancy is a contractual matter/a bilateral matter. After all a landlord may feel that he wants all the three persons as co-tenants so as to recover rents jointly or severally from all the co-tenants under the lease deed, Ex.DW5/1, and therefore, unless there is a consent of the landlord, there cannot be alteration in the constitution of the tenancy. I also note that an issue was framed by the Trial Court related to this aspect in the suit filed by the father, Sh. Ram Avtar, and while deciding this issue no.3, the Trial Court has held that the suit is bad for non joinder of the landlord.