MADAN LAL Vs. ZAHUR HUSSAIN

JUDGEMENT

(1.) THIS is the defendants second appeal and arises out of a suit for ejectment of shop as described in the plaint. The suit was dismissed by the Sub Judge Poonch, but on appeal it has been decreed by the District Judge.

(2.) BRIEFLY speaking the facts of the case as set out in the judgment of the courts below are that Zahur Hussain and another the plaintiffs respondents own a shop in the town of Poonch. The shop was leased out by the father of the plaintiff No. 1 to one Lal Chand before 2004 Bikrami and thereafter the defendant remained in occupation of the shop as a tenant from the year 1956. Lease deed was executed by the defendant which was subsequently renewed on 29 -9 -63, and the rate of rent was fixed at Rs. 8/ - per month. The plaintiffs sought ejectment of the defendant on the following grounds: - Firstly, that the shop was reasonably required by him for his personal use and occupation; Secondly, that the defendant was a bad tenant; Thirdly, that the period of lease has expired and the defendant No. 1 has renounced the title of the plaintiff. The suit was resisted by the defendant. He pleaded that the plaintiff No. 1 was not the owner of the shop. He also denied the averment regarding the personal necessity of the plaintiff and also controverted the fact of his being a bad tenant. It was further pleaded that the rent note was got executed by exercise of fraud and rents were paid to the plaintiff under the impression that the latter was the owner of the shop which in fact he was not. The learned trial Judge raised the following issues in the case: - (1) Whether the plaintiff is not the owner of the shop and, therefore, he has no right to get the rent of the shop and to file the suit? O.P.D. (2) In case issue No. 1 is not proved whether the plaintiff No. 1 personal need is more than the need of the defendant? O.P.P. (3) Whether the defendant is a bad tenant and, therefore, is liable to be ejected? O.P.P. (4) Whether plaintiff No. 1 at the time of the execution of the rent deed dated 29 -9 -1963 was not minor and, therefore, the rent deed through plaintiff No. 2 is illegal in the eye of law? O.P.D. (5) Whether the rent deeds were got under fraud and mischief. If so, what is its effect on the suit? O.P.D. (6) Relief? On appraisal of the evidence which the parties had led before the trial court the learned trial Judge came to the conclusion that the plaintiff was the owner of the shop in dispute and was entitled to recover the rent from the defendant. As regards the question of personal necessity the same was answered against the plaintiff. The court held that the plaintiff had failed to establish that he needed the premises for his personal use. Issue No. 3 was also decided against the plaintiff. The court observed that the defendant was not a bad tenant notwithstanding the fact that he had repudiated the title of the landlord. On this ground the defendant could not be ejected. Issues Nos. 4 and 5 were decided against the defendant On appeal the learned District Judge affirmed the findings arrived at by the trial court with regard to issues 1, 2, 4 and 5 but over -set the finding relating to issue No. 3. The learned District Judge was of the view that the defendant was a bad tenant inasmuch as he had repudiated the title of the landlord and according to Section lll(g) of the Transfer of Property Act there was forfeiture of tenancy, the legal consequence of which was the determination of the tenancy. The landlord was, therefore, entitled to recover possession of the suit property. Also the learned Judge observed that the defendant had failed to comply with the order of the trial court directing him to deposit rent from month to month. This order, it may be stated here, was made by the trial court under section 12(4) of the Jammu and Kashmir Houses and Shops Rent Control Act (hereinafter to be referred to as the Act). In the judgment of the learned Judge non -compliance with this direction could result in the suit being decreed against the defendant. The appellate court consequently decreed the plaintiffs suit.

(3.) LEARNED counsel appearing for the appellant has contended before me that the first appellate court had taken an erroneous view of the matter inasmuch as neither Section lll (g) the Transfer of Property Act nor Section 12(4) of the Houses and Shops Rent Control Act could apply to the present case. It is submitted that Section 11 of the Act excludes the operation of all other grounds mentioned in Section 111 of the Transfer of Property Act. The Court could not order eviction of the tenant on the ground that the latter had denied the title of the landlord inasmuch as this could not constitute a ground for recovery of possession under Section 11 of the Act. Moreover, it could not be said that because the tenant had repudiated the title of the landlord, therefore, he was a bad tenant. Nor was the first appellate court correct in holding that the defendant was a bad tenant inasmuch as he had committed default in the payment of rent as contemplated by clause (i) of Proviso to Sec. 11 of the Act; or that he had failed to comply with the provisions of Sub Clause (4) of Section 12 of the Act. This argument is met by the learned counsel for the respondent by enunciating the principle that denial of title by the defendant amounts to forfeiture within the meaning of clause (g) of Sec. 1ll of the Transfer of Property Act and this in itself furnishes a cause of action to the plaintiff to re -enter upon the demised premises and Section 11 of the Act could not give protection to a tenant who denies title of the landlord. Reliance is placed on A.I.R. 1964 Punjab 298 and A.I.R. 1957 All. 801. It is further submitted that there was a clear direction to the tenant defendant to deposit arrears of rent and also rent from month to month for future. He had only deposited the arrears but had failed to comply with the latter part of the direction enjoining upon him to deposit rent month by month. Therefore, Sec. 12(4) of the Act came into operation the consequence of which was that the defence of the defendant was to be struck out and decree for ejectment would follow. The trial court had failed to appreciate this legal position whereas the first appellate court had fully considered this aspect of the matter and had given effect to the provisions of Section 12(4).