SHAMA CHARAN Vs. VED PAUL AND ANR.

JUDGEMENT

(1.) THIS litigation concerns a shop, originally in the ownership of Bhagat Ram. He had given the shop on rent to Sita Ram deceased under the rent note, Exhibit P. 1, for one year from November 1, 1952, to October 31, 1930. At that time the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949), had been in force for some time and became applicable to the tenancy. On, October 19, 1955, he mortgaged this shop with Kirpa Ram and on September 1, 1956, he sold it to Ved Pal and Kishan Chand, respondents. The last named filed a suit for possession of this shop by redemption against the mortgagee, Kirpa Ram, and also seeking eviction of Sita Ram tenant and another tenant on the same property. While the suit was pending, Sita Ram tenant died and his son. Sham Charan appellant, was impleaded as his legal representative in that suit. The respondents obtained a decree for possession of the shop by redemption against Kirpa Ram mortgagee and also for possession of the part of the shop with the other tenant, but as Sita Ram, deceased tenant, had his tenancy commencing before the mortgage and the sale, under the original owner Bhagat Ram, so the suit with regard to him was dismissed on a finding that the respondents as landlords could have recourse to East Punjab Act 3 of 1949 so far as Sita Ram deceased tenant, was concerned. The case come the High Court where that decree so far as Sita Ram deceased tenant, as represented by his son Sham Charan appellant, is concerned, was maintained.

(2.) AFTER the decision of that suit in the High Court the respondents instituted the suit, giving rise to this appeal under clause 10 of the Letters Patent, seeking a decree for possession of the shop against Sham Charan appellant on the ground that his father Sita Ram deceased tenant was a statutory tenant, on whose death the statutory tenancy came to an end, and so the appellant is not entitled to remain in possession of the shop. The plaint was drafted so as to seek his eviction from the shop. The learned trial Judge by his judgment and decree of October 31, 1962, decreed the claim of the respondents on the basis stated by them. Appeal against the decree of the trial Court was dismissed by the Senior Subordinate Judge on April 5, 1963, and the second appeal was dismissed by Harbans Singh J. on February 1, 1965.

(3.) IN this appeal the learned counsel for Sham Charan appellant has pressed the very two arguments for consideration. His contention on the first question is that during the pendency of the previous suit, when Sita Ram deceased tenant died, the respondents as plaintiff's impleaded Sham Charan appellant on the record of that suit as legal representative and heir of Sita Ram deceased tenant and as having inherited the rights of tenancy from him. Although the first part of the statement is correct, but the second is rot. The learned counsel has read the application made by the respondents in this behalf after the death of Sita Ram deceased tenant, but in that they do not say that Sham Charan appellant has inherited the tenancy of the shop in dispute from his deceased father. The learned counsel then further urges that in that suit it was open to the respondents, Sita Ram deceased tenant having died, to say that there existed no tenancy of the shop so far as Sham Charan appellant was concerned. But the parties did not enter into this controversy in that suit. The proceedings in that suit came to an end with the parties litigating only with regard to the status of Sita Ram deceased tenant as tenant of the shop and his liability to eviction in that particular suit. What was decided was that as Sita Ram deceased tenant had been introduced into the shop by the original owner before the title was acquired by the respondents and he had been introduced by the mortgagee, so his tenancy could not be disturbed except in accordance with the provisions of East Punjab Act 3 of 1949. But that was confined only to the rights an 1 status of Sita Ram deceased tenant. The rights and status of Sham Charan appellant with regard to the shop in question did not come to form part of the dispute between the parties directly or indirectly in that case. Such a dispute could only indirectly come in that case if the respondents proceeded to amend their pleadings and to question any rights and status claimed by Sham Charan appellant with regard to the shop. It appears that the Jitter made no such claim at that time and the respondents did not consider themselves as called upon to so amend their pleadings in that suit. Thus, that suit was decided only with regard to the status and rights of Sita Ram deceased tenant as to the shop in question as represented by his son Sham Charan appellant after his death. So the learned Judge has been right that in these circumstances there is no question of the previous judgment in the earlier suit operating as res judicata in the present suit.