JIA RAM ALIAS JIA LAL Vs. SHAMBOO RAM

JUDGEMENT

(1.) SHAMBOO Ram, plaintiff filed a suit against the defendants-respondents for recovery of Rs. 1630/- being the excess amount of rent, costs and interest illegally realised by defendant Nos. 1 and 2, namely, Jai Ram and Ram Kumari, and for permanent injunction restraining the defendants from recovering the rent of the demised premises situated in Katra Sher Singh on the allegation that the plaintiff had taken on lease one Tavela bearing municipal number 1474/XTI from Smt. Kartar Kaur wife of Mohan Singh on a monthly rent of Rs. 45/- and that the terms of the tenancy were settled and incorporated in a rent note dated 7.11.1955 executed by the plaintiff in favour of Kartar Kaur. It appears that Kartar Kaur died and the other defendants succeeded to the property on the basis of a partition deed dated 24.11.1962 between Mohan Singh, Raghbir Singh and Kulwant Kaur (defendant Nos. 3 to 5). It further appears that Raghbir Singh thereafter mortgaged the property with possession to Bakhshish Kaur and Jag Kaur, defendant Nos. 6 and 7 vide mortgage deeds dated 1.12.1962 and 27.2.1963. Another mortgage deed was also executed on 20.4.1963 and on the request of Raghbir Singh, a rent note dated 22.2.1963 was executed in favour of Bakhshish Kaur and Jag Kaur whereby the plaintiff agreed to pay a monthly rent at the rate of Rs. 45/-. On 23.11.1964, Raghbir sold the property mortgaged to defendants 6 and 7 and these defendants claimed the rent of the demised premises from the plaintiff, which he continued to pay to the said defendants from 23.11.1964 to 1.4.1970. Kulwant Kaur, however, claiming herself to be the owner of a part of the demised premises, sold her share to defendant Nos. 1 and 2 vide sale deed dated 5.1.1968 but no notice of the sale was given to the plaintiff by any of the parties on which he continued to pay rent to defendant Nos. 6 and 7, who had prima facie become the owners of the property. Defendants No. 1 and 2 later informed the plaintiff through registered notice that as they had become owners of the property by virtue of sale deed dated 5.1.1968, the plaintiff was liable to pay rent to the said defendants. The notice was replied to by the counsel for the plaintiff but defendant Nos. 1 and 2 filed an ejectment application before the Rent Controller on 29.8.1970 against the plaintiff seeking eviction on the ground of non-payment of rent. The plaintiff appeared before the Rent Controller and tendered a sum of Rs. 1630/- as arrears of rent as per the demand of the land owners (defendant Nos. 1 and 2) of the property. The present suit was thereafter filed by the plaintiff claiming that he was not liable to pay the aforesaid amount as he had paid the rent upto 1.4.1970 to defendant Nos. 6 and 7 and there was absolutely no relationship between the plaintiff and defendant Nos. 1 and 2 and he had paid the amount of rent under compulsion. A joint written statement was thereafter filed by defendant Nos. 1 and 2 admitting therein that a partition had in fact taken place between the co-sharers under which a part of the property had come to the share of Kulwant Kaur and she had sold the same vide sale deed dated 5.1.1968 to them and that they had become part owner of the property. It was also pleaded that Raghbir Singh had no right to mortgage the entire property as he was not the owner thereof. The fact that Rs. 1630/- had been tendered by the plaintiff was admitted. Defendant Nos. 6 and 7 had also filed written statement taking various pleadings including the fact that they were not aware of any partition having taken place with regard to the demised property. On the pleadings of the parties, the trial Court framed the following issues :-

(2.) UNDER issue No. 1, it was held that the suit for permanent injunction was not maintainable but the suit for recovery of Rs. 1630/- was maintainable. Issue No. 2 was decided in favour of the plaintiff. Under issue No. 3 it was held that the demised premises had been partitioned between the parties and the parties to the partition had become exclusive owners of the property that had come to their share. Under issue No. 4, it was held that Kulwant Kaur had sold her portion of the property and that she was competent to do so. Under issue No. 5 it was held that Raghbir Singh had neither sold the property in its entirety nor was competent to sell the same. Issue Nos. 6 and 7-A were decided in favour of the plaintiff. The suit of the plaintiff was accordingly dismissed, leading to a first appeal. The learned First Appellate Court held that as there had been no partition by metes and bounds between different co- shares, the plaintiff was not bound to pay the rent of the entire premises to all the co-sharers and as Raghbir Singh had admitted the fact of receiving the rent at the rate of Rs. 45/- per month, the plaintiff was not bound to pay any further amount. The learned Appellate Court further held that the suit for permanent injunction was maintainable as the tenant could not be called upon to pay the rent to all the partners separately as all the defendants including defendant Nos. 1 and 2 and defendant Nos. 6 and 7 were entitled to recover the rent jointly. The findings on issue Nos. 1, 6 and 7 were reversed. The learned Appellate Court, however, observed that the plaintiff was not entitled to recover the excess amount of Rs. 1630/- as he had paid the same of his own volition but it could be adjusted towards future rent. The appeal was accordingly allowed to the limited extent and the suit was decreed to the effect that defendant Nos. 1 and 2 along with defendant Nos. 6 and 7 were restrained from recovering the rent of the demised premises at the rate of more than Rs. 45/- per month. The suit for recovery of Rs. 1630/- was, however, dismissed. Hence the present regular second appeal.