VINOD KATYAL Vs. RAM LUBHAYA KHARBANDA

JUDGEMENT

(1.) BOTH these appeals have sprung up from Original Suit No. 316 of 1984 which was filed by late Ram Lubhaya Kharbanda whose legal representatives are the contesting respondents in both the appeals. The said suit was partly decreed by IInd Additional Civil Judge, Allahabad by judgment and decree dated 12.6.1995. The suit was dismissed as against Vinod Katyal, Sita Katyal and others, whereas it was decreed as against Deepak Katyal. Both the losing parties preferred first appeals. Civil Appeal No. 247 of 1995 was filed by the legal representatives of the original plaintiff Ram Lubhaya Kharbanda against the dismissal of their suit as against Vinod Katyal, Sita Katyal and others whereas Civil Appeal No. 224 of 1995 was filed by Deepak Katyal, aggrieved by the decretal of the suit against him. The same were decided by the IIIrd Additional District Judge, Allahabad by judgment dated 9.2.1998. The appeal filed by the legal representatives of plaintiff landlord Ram Lubhaya Kharbanda was allowed with costs throughout and the appeal filed by Deepak Katyal was dismissed. Resultantly, Vinod Katyal has filed instant Second Appeal No. 640 of 1998, aggrieved by the decretal of the suit against him, whereas the connected Second Appeal No. 728 of 1998 has been filed by Deepak Katyal who is aggrieved by the dismissal of his appeal by the Appellate Court, affirming the decretal of the suit against him by the Trial Court. A brief resume of the facts is necessary to appreciate the subsequent discussion. The suit giving rise to the two appeals was initially filed by the deceased. Ram Lubhaya Kharbanda -landlord against Suraj Prakash Katyal (who too died during pendency of the suit) for ejectment from an open piece of land specified at the foot of the plaint, for recovery of rent, pendente lite and future mesne profits and water tax. After filing the suit, Ram Lubhaya Kharbanda died on 8.7.1994 leaving behind the plaintiffs respondents No. 1 to 8 as his legal representatives. Suraj Prakash Katyal, the original defendant died on 8.10.1984 even before filing the written statement, leaving behind his heirs including his wife Sita Katyal, defendant No. 1/1 and his father Hansraj Katyal, defendant No. 1/6. Hansraj Katyal also died on 22.2.1986 and his remaining four sons, namely, Chandra Prakash Katyal, Vinod Katyal, Dinesh Katyal and Deepak Katyal were impleaded as defendants.

(2.) THE case of the original plaintiff was that he had let out an open piece of land, measuring 90' x 57' in dispute to Suraj Prakash Katyal on 21.10.1961 and the conditions of tenancy originally agreed upon were reduced in writing on 24.10.1961 which was signed by Ram Lubhaya Kharbanda as well as Suraj Prakash Katyal. The monthly rent was agreed to be Rs. 120/ - which was subsequently enhanced to Rs. 150/ - and the tenant agreed to pay Rs. 21/ - as water to in addition to rent. It was a month to month tenancy starting from 1st to last day of each calendar month. Suraj Prakash Katyal made illegal constructions in a portion of the premises and also sublet it to Deepak Katyal who turned on business in the name and style of 'Accessories House'. He also admitted Vinod Katyal into business and floated proprietorship business in the name of Autoways. He also sublet a portion of the premises in question to M/s. Katyal Agencies. He thus violated the terms of tenancy agreed upon in writing on 24.10/1961. After serving a notice dated 18.12.1983, the suit was filed for the reliefs as indicated earlier.

(3.) THE defence put forth by Sita Katyal wife of Suraj Prakash Katyal, in the main, was that Ram Lubhaya Kharbanda had let out a portion of his building in question with rooms and appurtenant land and not open piece of land. He created a fresh tenancy in 1972 in favour of M/s. Autoways in respect of a portion of the accommodation let out to Suraj Prakash Katyal and the rent was enhanced from Rs. 120/ - to Rs. 150/ - per month with additional liability of the tenant to pay water tax @ Rs. 21/ - per month. After 1972, she had been tenant of the land and constructions in question in her own right, and not as heir of Suraj Prakash Katyal. The tenancy of Suraj Prakash Katyal was impliedly surrendered on coming into existence of fresh tenancy between Ram Lubhaya Kharbanda and M/s. Autoways. The rent had been paid by M/s. Autoways to the landlord till July 1983. Subsequently, on refusal by him, the same was deposited regularly in the Court. She claimed to be tenant of the land an constructions in question with Vinod Katyal as partners of M/s. Autoways since 1972 after Suraj Prakash Katyal ceased to be the tenant. It was denied that terms and conditions of tenancy had ever been reduced in writing. The agreement dated 21.10.1961 was assailed to be a forged document, not bearing the signatures of Suraj Prakash Katyal. The rooms situated in the premises in question had been built by the plaintiff himself and let out initially to Suraj Prakash Katyal. It was denied that M/s. Autoways of Deepak Katyal had been sub -tenants in the premises in question M/s. Accessories House had been paying rent through Deepak Katyal as independent tenant A few other pleas including that of non -service of notice on her were raised in opposition of the suit.