BRAHMA DEVI Vs. KRISHNA DEVI

JUDGEMENT

(1.) . The appellant, Smt.Brahma Devi has raised one important question as to "whether the Civil Court had no jurisdiction to entertain and try the suit for grant of decree of ejectment of the appellant from the premises after the area was notified as urbanised/developed area". Since the area in question where the suit property is situated had been urbanised hence the Civil Courts jurisdiction was hit by the provisions of Section 50(2) of Delhi Rent Control Act (in short DRC Act). Secondly the First Appellate Court did not take cognizance rather ignored the fact of the decree/ judgment passed in Suit No.300/78 decided on 21st July,1979, whereby it was held that present respondent was not the owner of the suit property. Hence that decision operates as resjudicata and the present suit ought to have been dismissed on this ground. Finally in order to terminate the tenancy notice under Section 106 of the Transfer of Property Act ought to have been issued. Having not done so the suit of ejectment was not maintainable.

(2.) . To appreciate the contentions raised by the appellant, brief and relevant facts of the case are that the respondent Smt.Krishna Devi claimed herself to be the owner and landlady of the suit premises. This appellant had taken, the premises in question on rent in the year 1972 on a monthly rent of Rs.40.00 . She had been paying the rent to one Shri Ram Chander. Present respondent filed three set of suits against one Shri Sohan Lal and the present appellant Smt.Brahma Devi. Since all the suits raised common questions of law and facts hence disposed of by a common judgment. Suit for possession by the respondent were decreed against the present appellant as well as Shri Sohan Lal. Resondent's suit for recovery of arrears of rent against the present appellant was also decreed. In all those cases it was the assertion of the present respondent that she was the owner landlady of propety No.WZ-118, Plot No.G-21-B, Palam Enclave, New Delhi. That she had purchased the same from Shri Dharam Dev Solanki who in turn had purchased it from Shri Jhaman Lal and Shri Ram Chander. Appeal preferred by the present appellant against those decrees has also been dismissed. There is thus concurrent finding that Smt.Krishna Devi, the present respondent is the landlady of the suit premises. That the appellant is tenant in this premises of which Smt.Krishna Devi is the landlady. That the suit premises is not covered under the DRC Act. It is against these concurrent findings of fact and law that present appeal had been preferred. It is the contention of the appellant before the Court that respondent was not owner of this premises. It was so held in Suit No.300/78 decided on 21st July, 1979. That decision would operate as resjudicata. The Courts below wrongly decided the issue of resjudicata against the appellant. Similarly the issue of maintainability of the suit on erroneous presumption has been decided in favour of the present respondent.

(3.) . At the outset we have to keep in mind that there is a concurrent finding of facts that Smt.Krishna Devi is the landlady and present appellant her tenant. The said finding was given after recording evidence and appreciating and evaluating the same. Therefore, in the second appeal unless there is serious error the concurrent finding of fact cannot be interferred. Mr.Sarvesh Bisaria, appearing for the appellant contended that Mr.Darshan Singh Sidhu, Sub Judge in Suit No.300/78 had held that Smt.Krishna Devi was not the owner and even Shri Dharam Dev Solanki had no right, title or interest in this property, therefore, the Trial Court fell in error in concluding that Smt.Krishna Devi had a right to seek ejectment or that the principles of resjudicata were not applicable. I am afraid this argument has no force. There is uncontroverted admission of the appellant that she had been paying rent to Shri Ram Chander. He was her landlord. The said Ram Chander appeared as Krishna Devi's witness. Appearing as a witness for the respondent (plaintiff before the Trial Court) the said Ram Chander stated that he was collecting rent on behalf of Shri Jhaman Lal, his son. He further testified that Shri Jhaman Lal sold this property to Shri Dharam Dev Solanki. It was the case of the respondent herein through out that she purchased this property from Shri Dharam Dev Solanki. In view of this admission by Shri Ram Chander that the property was sold to Shri Dharam Dev Solanki who in turn sold it to Smt.Krishna Devi, there was no question of dispute regarding landlord tenant relationship between the appellant and Smt.Krishna Devi. It was a question of fact which has been proved on record. In the cross- examination of Shri Ram Chander, the only suggestion given was that he inducted Smt.Brahma Devi, the present appellant and Shri Sohan Lal as tenants. It was not put to him that he never sold this property to Shri Dharam Dev Solanki or that Mr.Solanki never-further sold the property to Smt.Krishna Devi or that after the sale of the property to Shri Dharam Dev Solanki or Smt.Krishna Devi the rent was received by him. Shri Jhaman Lal appearing as witness for this respondent corroborated the fact that the property in question was sold to Shri Dharam Dev Solanki. Shri Dharam Dev Solanki further sold it to Smt.Krishna Devi, the present respondent. Both Shri Ram Chander and Shri Jhaman Lal appearing as witnesses testified that they had nothing to do with the property in question after having sold the same to Shri Dharam Dev Solanki and subsequent thereto to Smt.Krishna Devi. When confronted they clarified that the sale deed was not executed but a General Power of Attorney was executed in favour of Shri Dharam Dev Solanki. General Power of Attorney in favour of Shri Dharam Dev Solanki has been proved on record as Exhibit PW.1/1. This General Power of Attorney Exhibit PW.1/1 authorised Shri Dharam Dev Solanki to dispose of the suit property in any manner he liked. Shri Dharam Dev Solanki appearing as DW.1 testified that he purchased the property from Shri Jhaman Lal vide General Power of Attorney Exhibit PW.I/I. He in turn sold this property bearing No.WZ-118, Palaro Enclave, New Delhi to Smt.Krishna Devi, the present respondent. Therefore, Smt.Krishna Devi became the landlady of the property and the appellant became her tenant in the suit property. Admittedly, the appellant is a tenant in the suit premises. She admited that she was initially inducted as & tenant by Shri Ram Chander and she had been paying rent to Shri Ram Chander. Shri Ram Chander testified that he had been collecting the rent on behalf of his son Shri Jhaman Lal. Thereafter rent was paid to Shri Dharam, Dev Solanki on the asking of Shri Ram Chander. Hence the First Appellate Court was justified in coming to the conclusion that the appellant herein having accepted the attornment of tenancy in favour of Shri Dharam Dev Solanki now could not challenge the relationship of landlord and tenant. Shri Dharam Dev Solanki appearing as DW-1 proved on record that he sold the property in question to Smt.Krishna Devi (the present respondent). He relinquished all his right in favour of Smt.Krishna Devi including the right to collect the rent of this premises. Clear picture regarding relationship of appellant and the respondent emerged through the testimonies of Shri Ramchander, Shri Jhaman Lal and that of Shri Dharam Dev Solanki. It has been established through the uncontroverted testimony of Shri Ram Chander that he was collecting the rent on behalf of Shri Jhaman Lal, the owner of this property. Shri Jhaman Lal sold his property by executing General Power of Attorney in favour of Shri Dharam Dev Solanki. He in turn sold it to Smt.Krishna Devi. The attornment in favour of Mr.Solanki having been admitted by the appellant, I see no reason to disagree with the conclusions arrived at by the Courts below that Smt.Krishna Devi became the landlady of the property in question. Hence, the relationship of the landlord and tenant came into being between the appellant and the respondent. No evidence was led by the appellant herein to prove otherwise. In view of this clear picture having emerged on the basis of evidence placed on reocrd it cannot be said that Smt.Krishna Devi as landlady could not institute the suits. The First Appellate Court rightly concluded that for the relationship of landlord and tenant, it was not necessary to have the right of ownership determined. Since the relationship was established by the uncontroverted and unrebutted testimonies of S/Shri Ram Chander, Jhaman Lal and Dharam Dev Solanki, the question of ownership was of no consequence. Hence the decision of Shri Darshan Singh Sidhu, Sub Judge in Suit No-300/78 had no relevance to the issue before the Court in these suits. Reliance by Mr.Sarvesh Bisaria on the decision of the Supreme Court in the case of Sulochana Amma Vs. Narayanan Nair (1994) 2 SCC 14 is of no help to him because as observed by the First Appellate Court he was not going to decide whether the respondent herein was the owner or not? Therefore, the question of applicability of principles of resjudicata did not apply to the facts of this case. The relationship having been established as that of a landlord and tenant which was not at issue in Suit No-300/78, therefore, the Courts below rightly came to the conclusion that once relationship was established and it having been established that the present appellant was the tenant of the respondent. She could not claim better title than that of the landlady. Hence the right to sue vested with the respondent. The question of principles of resjudicata did not come into play.