JANG BAHADUR AND OTHERS Vs. BRIJESH KUMAR

JUDGEMENT

(1.) The plaintiff asserted his right to recover possession of the demised shop by filing a suit for possession and for recovery. The defendants contested and argued before the trial Judge that the suit was not maintainable as plaintiff should have filed a suit for possession by way of redemption of mortgage. Defendants # 1 and 2 are brothers. In the written statement filed by the defendants in response to the suit, they denied execution of any mortgage deed. While in the witness box facing crossexamination one of the defendants admitted that both the brothers are tenants under the plaintiff. The question that arises is that could they be allowed to change their stand by resting their case on a mortgage deed between the owner and defendant # 1. It is trite law that it is not open to a tenant by a unilateral act to alter the character or status of the relationship.

(2.) For the period of non-payment of rent, the defendants have failed to place on record rent receipts to establish and prove payment of rent up to September, 1996. There is no doubt that there is a mortgage deed exhibited on record as P1. But there is evidence that the plaintiff redeemed the mortgage with defendant # 1 on deposit of mortgage money in a sum of Rs. 2000/- vide treasury challan Ex.P11.

(3.) The defendants then argued that the plaintiff is not owner of the disputed shop. Rather, the shop rented out to the defendants belongs to Kali Ram Dharamshala. Not to speak of tenant precariously disputing ownership in the shop, not an iota of evidence was led by the defendants to prove that the plaintiff was not owner of the demised premises. Mere assertion is not enough to non-suit the plaintiff. The situs of the shop in dispute at Bilaspur confers territorial jurisdiction on the trial court over the suit property as there is no Municipal Committee notified for the area and therefore the rent laws are inapplicable. Indisputably, the area of the shop falls within the jurisdiction of a Village Panchayat. Therefore, the only possible way available to the plaintiff for recover possession by ejectment of the defendants from the shop in question was to bring a lawsuit in the civil court. The suit was instituted after notice issued on 27th November, 1996 under Section 106 of the Transfer of Property Act, while civil suit # 11 of 1997 was filed on 10th January, 1997. If the tenancy was created in the year 1989 in favour of one or both the brothers and thereafter one of them shifted out from he premises in October, 1990 relocating from Bilaspur to Mulana while his brother Raj Kumar defendant # 2 continued in possession of the tenanted shop, then the decree cannot be faulted in evicting the tenants on quit notice issued and served when statutory defences and not extended to properties falling in Panchayat Samities. One suit was sufficient to non-suit both the brothers.