HUKUM CHAND Vs. NAGAR PALIKA PARISHAD MORENA

JUDGEMENT

(1.) This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 5.3.2001 passed by Fourth Additional District Judge, Morena in Civil Appeal No.11-A/2000 thereby affirming the judgment and decree dated 29.2.2000 passed by First Civil Judge Class-II, Morena in Civil Suit No.59-A/1999 by which the suit filed by the appellants has been dismissed.

(2.) The necessary facts for the disposal of the present appeal according to the plaintiff is that the Municipal Council, Morena had constructed some shops at Railway Station Road, Morena for the purposes of letting them out. They were to receive the advance rent for the period of 10 years at the rate of Rs.30/- per month and after completion of the construction, the possession was to be handed over. It was agreed that for the first 10 years no rent would be chargeable as the same has been collected in advance and after 10 years, the rent @ Rs.30/- per month would be payable. It was pleaded that Ramcharanlal had deposited the amount after taking the same from plaintiffs No.1 and 2 and was deposited in the name of plaintiffs No.4 and 5. The shop No.24 was taken on rent after payment of the advance rent for the period of 10 years and an agreement was executed on 5.11.1971 and the shop was opened by plaintiffs No.4 and 5 under the guardianship of Ramcharan. However, the names of the plaintiffs No.1 and 2 were not recorded in the records of the Municipal Corporation and the names of plaintiffs No.3 to 5 continued to be recorded in the records of the Municipal Corporation and, therefore, they have been joined in the suit. The plaintiffs no.1 and 2 sublet the shop to Murarilal @ Rs.60/- per month with a clear stipulation that whenever the plaintiffs would require the shop for their personal requirement, then he would immediately hand over the vacant possession of the same. When the plaintiffs No.1 and 2 instructed Murarilal to vacate the shop, then he did not vacate the shop and, accordingly, after terminating the tenancy, they instituted a suit for eviction which was registered as Civil Suit No.84-A/1974 and by judgment and decree dated 20.3.1975 a decree for eviction was passed which was unsuccessfully challenged by Murarilal before the First Appellate Court and his appeal was dismissed by judgment and decree dated 19.11.1976 and which is the subject matter of Second Appeal No.377/1976 before the High Court which is still pending and, therefore, the execution of decree is under abeyance. Although the entire facts were within the knowledge of the Municipal Council but the Municipal Council by its resolution No.235 dated 2.9.1977 decided to let out the shop to Murarilal. However, he was in possession of the shop in the capacity of a tenant and after the termination of his tenancy, his possession was illegal and was merely an encroacher and before passing the resolution, no opportunity of hearing was given to the appellants. It was further pleaded that the defendant No.1 had no right to terminate the rights of the plaintiff by the same resolution and such resolution passed by the defendant No.1 comes within the definition of Contempt of Court as the dispute was pending. It was pleaded that since the status of the plaintiff is like a tenant, therefore, the defendant No.1 had no right to enter into an agreement of tenancy with any other person. During the pendency of the suit, the plaint was amended and it was pleaded that the defendant No.1 with his dishonest intention has now handed over the possession to the defendant No.4 and the defendant No.4 after depositing the rent has handed over the possession to the defendant No.5 whereas the defendants No.1 and 3 had no right or title. Thus it was prayed that since the decree of eviction has already been passed against the defendant No.2/Murarilal, therefore, the defendant No.3 is also bound by the same.

(3.) The defendant No.1 filed its written statement and pleaded that the plaintiff has made a general statement with regard to the conditions on which the shops were constructed but in fact the conditions for each shops were different and the shops were constructed in the year 1966. It was pleaded that the plaintiff No.3 Ramcharan Lal had applied for grant of tenancy and only he had deposited the amount and the contention that the plaintiff No.3 Ramcharan Lal had deposited the amount of Rs.3600/- after taking the money from the plaintiffs No.1 and 2 was denied. It was admitted that the Municipal Council has executed an agreement with the plaintiff No.3. It was further pleaded that the tenant had no right to transfer his rights and in clause 5 of the agreement, it was specifically mentioned that in case of such illegal transfer, the tenancy would automatically come to an end. It was also pleaded that the application made by the plaintiffs No.1 and 2 was unauthorized and, therefore, there was no reason to consider the same. It was further submitted that no rights had accrued in favour of the plaintiffs No.1 and 2 and even otherwise in the light of clause 5 of agreement dated 16.1.1968, the agreement had already come to an end in view of illegal transfer. The Municipal Council is not aware of any agreement between plaintiffs No.1 and 2 and defendant No.2, even otherwise it is not binding on the defendant No.1. It was further pleaded that in a suit for eviction, the defendant No.1 was not a party and has nothing to do with the same. The resolution dated 2.9.1977 passed by the defendant No.1 was correct and has further stated that the tenancy of plaintiffs No.1 and 2 was never accepted by the defendant No.1. There is no privity of contract between the plaintiffs No.1 and 2 and the defendant No.1 and, therefore, no question for evicting or terminating the rights of the plaintiffs arise.