ON THE DEATH OF NOPATRAI KHEMKA HIS LEGAL HEIRS, SUSHILA DEVI KHEMKA (WIFE) AND OTHERS Vs. SABITRI DEVI KEJRIWAL & ANOTHER

JUDGEMENT

(1.) In this revision petition preferred by tenants the concurrent findings of learned two courts below have been challenged. The eviction suit filed by the landlord was decreed by the learned trial court by judgment and decree dated 13.12.2006 in Title Suit No.70/2002 and Title Appeal No.4/2007 filed there against by the tenants was dismissed by the learned First Appellate Court on 16.07.2008.

(2.) It is necessary to narrate the brief facts as pleaded by the parties in the present proceeding. The plaintiffs, namely, Smti. Savitri Devi Kejriwal and Smti. Gita Devi Thard, instituted Title Suit No.70/2002 in the court of learned Civil Judge (Junior Division) No.1 at Dibrugarh against as many as 13 defendants out of which 12 are principal defendants and one is proforma defendant. It is stated in the body of the plaint that Late Madanlal Khemka being Karta of M/s Nopatrai Ramavatar, a Hindu Undivided Family, came to occupy the suit premises under the proforma defendant No.13 as a tenant agreeing to pay Rs.130/- per month at the end of each month as per English calendar and also agreeing to pay the municipal taxes regularly. Upon death of Madanlal Khemka tenancy devolved on his legal heirs. On the death of his two daughters, namely, Maina Devi and Kanta Devi her tenancy rights devolved on the defendant Nos.5 and 6 and 7 to 10. Wife of Madanlal Khemka thereafter died and thus the sons and the legal heirs of the daughters were the tenants. The proforma defendant No.13 executed a registered sale deed dated 01.06.1978 in favour of the plaintiffs and thus the present plaintiffs stepped into the shoe of the landlord as against the principal defendants but they did not attorn the plaintiffs and did not pay rent since the month of June, 1978 even after being communicated about the same. The proforma defendant by his letter dated 11.09.1978 informed the defendant No.1 about the transfer of title of the suit premises and thereby requested him to attorn the plaintiffs as their landlords. The plaintiffs thereafter by executing a registered general power of attorney on 14.06.1979 appointed Sri Bajrang Lal Kejriwal as constituted attorney. This constituted attorney is none other than the husband of the plaintiff No.1 and younger brother of plaintiff No.2. The attorney was authorized to do all acts, deeds, things and matters in respect of the suit premises in their name and on behalf of plaintiffs. A copy of the general power of attorney was also annexed to the plaint as document No.1. The plaintiffs further stated that the defendants though have been using and enjoying the suit premises without paying rent to the plaintiffs since the month of June, 1978, they had become defaulter and are liable to be evicted from the suit premises. Besides, the suit premises is also required bona fide for the following four reasons :-

(3.) On being summoned, the defendant Nos.1 to 4 appeared and submitted written statement denying the allegations levelled in the plaint but tenancy under Late Madanlal Khemka was admitted. However, it was stated that M/s Brahmadutt Gajanand, a Hindu Undivided Family (hereinafter for short HUF), came to occupy the premises when it was owned by M/S Rampatdas Rameswar at an annual rent of Rs.130/- sometimes in the year 1943. Subsequently, in the year 1946 Madanlal Khemka separated from the HUF and he constituted his own HUF as Brahmadutt Madanlal which was subsequently renamed as M/s Nopatrai Ramavatar for convenience. The family of Madanlal Khemka retained the HUF of Brahmadutt Gajanand which was subsequently renamed as M/S Khemka Brothers and following separation of their business both Nopatrai Ramavatar and Khemka Brothers amicably shared the tenanted premises between them but the tenants paid rents jointly to the then landlord. In the meantime, the HUF of Rampatdas Rameswar was also dissolved and some of their members constituted M/s Bhagwandas Deokinandan. The aforesaid tenanted premises came under the ownership of the members of M/s Bhagwandas Deokinandan. In the year 1962 Bhagwandas Deokinandan through Mrs. Gangabai executed a deed of exchange and a sale deed thereby transferring the southern part of the said tenanted premises to M/S Khemka Brothers by partitioning the tenanted premises and this is how it came under the exclusive possession of Khemka Brothers. Of course, the northern part of the premises remained under exclusive possession of M/S Nopatrai Ramavatar. Thereafter, as per the fresh arrangement, M/s Nopatrai Ramavatar continued to pay a monthly rent of Rs.75/- to the said landlord who used to collect rent sometimes monthly and sometimes for a few months together as per their convenience through one of their Munibs and the landlord used to issue receipts thereafter. The monthly rent was subsequently enhanced to Rs.130/- from April, 1976. After death of Madanlal Khemka, the answering defendants succeeded to the properties of the said firm. However, the defendants No.11 and 12, who were married away to different families, did not have any subsisting interest in the tenanted premises after their marriage. Defendants, however, admitted that in the year 1977 the defendants No.1 and 2 received registered letter dated 09.06.1977 issued by Deokinandan Agarwalla falsely incorporating himself as the karta of the firm M/s Bhagawandas Deokinandan informing that he intended to sell the tenanted premises within a week against cash payment and very vaguely asked the defendants to quote their offer and to pay the amount at a time within a week if accepted. However, by the time the letter was received, the stipulated period has been over and thereafter the defendants approached Shri Bhagwandas Agarwalla who pleaded ignorance of the letter. The defendants, therefore, became suspicious about possible foul play of the landlord and hence, they started voluntarily tendering rent which were received by Shri Deokinandan Agarwalla till May, 1978 but receipts were not given on various pleas. But when rent for the month of June, 1978 was tendered in the early part of July, 1978, the same was tactfully avoided by the landlord and under such circumstances the rent was deposited in court. Even thereafter, in the beginning of the month of August and September, 1978, defendant No.1 similarly tendered rent but the same was refused by the landlord. Being compelled the defendant No.1 had to deposit the rent in court. By the middle of September, 1978 the defendant No.1 came to know, for the first time, from the letter dated 11.09.1978 issued by the landlord that the suit premises had already been sold to the plaintiffs in the month of June, 1978 itself. It was falsely claimed in the said letter that the defendants were in arrear of rents. The defendants were verbally requested to attorn the plaintiffs as their landlord. The answering defendants sent a reply on 26.09.1978 refusing the allegations and furnished the details of deposit of rents in court and they intimated that they had already attorned the plaintiffs as their landlord.