NANU MAL Vs. BHAGWATI PERSHAD

JUDGEMENT

(1.) This is plaintiff's appeal. His suit for possession ofshop premises bearing No. 534, Katra Ishwar Bhawan, Khan Baoli, Delhi, and alsoformesne profits was dismissed by the judgment and decree dated 30/01/1980of the Additional District Judge, Delhi. The suit was filed on 23/08/1993against defendant Bhagwat Pershad. Later his brother Rishikesh was also impleaded as second defendant. Both the defendants are real brothers of KishanGopal who was tenant of the shop premises as alleged by the plaintiff and washaving business there in the name of M/s. Ganpat Rai Kishan Gopal ('the firm' forshort) as its sole proprietor. Kishan Gopal died some time in August 1968. Theplaintiff, who is the owner and landlord of the shop, contended that defendantBhagwat Pershad occupied the shop after the death of Kishan Gopal without anyauthority and his possession was, thus, unlawful and unathorised. The plaintiffalso claimed mesne profits, but for determining the mesne profits he prayed forappointment of Local Commissioner. The defendants contested the suit. There arevarious pleas in the alternative. They said the firm was a Joint Hindu Family firm,and for this firm the premises were taken on rent in the year 1946 by Kishan Gopaland his brother Rishikesh. They also said that proceedings were filed earlier by theplaintiff under the provisions of the Delhi Rent Control Act against the firm butthese were compromised and Kishan Gopal and Rishikesh were accepted astenants of the shop. An objection was raised that Rishikesh was a necessary party.As noted above, Rishikesh was ordered to be impleaded as a defendant as asubsequent stage. Defendants said that another petition for eviction filed underSection 14(l)(b) of the Delhi Rent Control Act by the plaintiff was also dismissedand that the firm had been sued through its partners Rishikesh and Kishan Gopal.Then the defendants said that defendant Bhagwat Pershad was the youngerbrother of Kishan Gopal and Rishikesh and he had been sitting in the shop andconducting the business on behalf of his brothers for the last many years. It wasstated that the rent of the shop was being deposited by Bhagwat Pershad on behalfof his brothers and that the compromise in eviction proceedings was also signed byBhagwat Pershad on behalf of his brothers. It was, therefore, contended that theplaintiff could not call Bhagwat Pershad as unauthorised occupant. Then it wasstated, though in the alternative, that tenancy of Kishan Gopal had not beenterminated during his life time and these tenancy rights after the death of KishanGopal devolved upon his legal heirs and those legal heirs, it was contended, werenecessary parties in the proceedings. An objection was, thus, raised that the suitwas not maintainable in law for want of non-joinder of necessary parties.

(2.) The fact that Kishan Gopal had legal heirs had not been disputed by theplaintiff. These included his mother, his wife and children. It was the case of theplaintiff that since the tenancy of Kishan Gopal had been terminated during his lifetime, the tenancy rights did not devolve upon his heirs or anybody else, and furtherthat heirs of Kishan gopal were not in possession of the shop, and they were,therefore, neither necessary nor proper parties. On the pleadings of the parties, thefollowing issues were framed:-

(3.) In support of his case, the plaintiff led oral evidence. Since the ownershipof the plaintiff is not disputed, documents showing his ownership are not relevant.PW-1 Prem Chand Gupta, PW-2 S.R. Madan, and PW-3 Devinder Sharma talkabout the ownership of the shop by the plaintiff and it is not necessary to refer totheir statements. PW-4 Mr. S.L. Sethi was the Advocate of the plaintiff. He serveda notice of attornment (Ext. PW4/3) on behalf of the plaintiff on the firm. In crossexamination Mr. Sethi admitted that notice Ext. D-l was sent under the signatureof his son Mr. Ravinder Sethi, Advocate, to the firm on the instructions of theplaintiff. PW-5 is the plaintiff himself. He said he never accepted Bhagwat Pershadhis tenant. He admitted that he had filed earlier a petition for eviction against thefirm where he mentioned this firm to be a partnership firm. This, he said, he did asdefendant Bhagwat Sarup had told him that it was a partnership firm, and thatplaintiff had no personal knowledge about the same. He said mentioning of thefirm as partnership was not intentional. Subsequently, plaintiff said he learnt thatKishan Gopal was the proprietor of the firm. He also said that he never saw KishanGopal or any of his heirs or even Rishikesh, defendant No. 2, in the shop but onlyBhagwat Sarup, defendant, was found there. In the same breath the plaintiff saidthat after the death of Kishan Gopal, Bhagwat Pershad got into possession of theshop without the consent or permission of the plaintiff. In cross-examinationplaintiff admitted that he had been making purchases from and selling goods to thefirm through Kishan Gopal only, and that defendant Rishikesh used to write lettersand Hundis or keeping the accounts. Plaintiff said he was not aware if mother ofKishan Gopal was alive or that she lived with defendant Bhagwat Pershad. Muchof the cross-examination pertained to earlier eviction proceedings filed by theplaintiff against the firm. The plaintiff denied that defendant Bhagwat Sarup hadbeen sitting in the shop in dispute since very beginning and said he started sittingin the shop only after the death of Kishan Gopal in 1968. Plaintiff denied thesuggestion that defendant Bhagwat Sarup was sitting in the shop on behalf of theheirs of Kishan Gopal and also on behalf of Rishikesh. Plaintiff said he did concedein the Court of the Additional Rent Controller in eviction proceedings filed by himagainst Kishan Gopal that Kishan Gopal and Rishikesh were the partners, but hesaid it was a wrong statement made under some mistaken belief.