KUNDAN LAL Vs. SAIN DASS

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of Shri K. K. Gupta Sub Judge (Chief Judicial Magistrate Jammu, dated August 30, 1972 by which he dismissed the appeal which had been filed by the present appellant.

(2.) THE relevant facts which have given rise to this present appeal may be briefly stated as follows: There is a shop situated in RaghuNath Bazar, Jammu, one of the quarters of Jammu city. The plaintiff respondent No. 1 instituted a suit for the ejectment of the defendants i.e. the present appellant and his brother from the aforesaid suit premises on the ground of personal necessity. The case of the plaintiff respondent in short was that the property originally belonged to Lala Ram in whose favour Faqir Chand father of the appellant had executed a deed of lease dated 25th of Katik 2006. This aforesaid property -was later on sold by Lala Ram to one Bua Datta Mal who was the father of the present plaintiff -respondent. Bua Datta Mal by virtue of a Tamliq Nama dated August 29, 1988 transferred his interest in the aforesaid premises to the present plaintiff respondent. Faqir Chand died and the present plaintiff served a notice for ejectment on Kundan Lal, tile present appellant and his brother who figured as defendant No: 2 in the suit. The suit was contested by the present appellant only on the ground inter alia that the plaintiff had no necessity and that the notice had not been served on all the heirs of Faqir Chand and that the Tamliq Nama did not confer be any title on the plaintiff respondent. It may also lie mentioned here that the present appellant -defendant No. 1 only contested the suit and there was no contest by hold -defendant No: 2. The learned Munsiff Jammu decreed the suiting that the plaintiff had title and he was the landlord and that the premises were required by him for his personal necessity. The defendant appellant being aggrieved by this order, preferred an appeal, which, stated above, was dismissed. At the time of the hearing of this appeal the learned counsel for the appellant has raised several points attacking the judgment and the finding of the appellate court and I will now deal with each of these points which have been raised. The first point which has been raised is that the courts below ought to have held that the suit was bad and liable to be dismisssed on account of non -impleading of the other heirs of Faqir Chand, who were necessary parties to this suit. The learned counsel appearing for the respondent on the other hand has raised two contentions in this respect, one of these is to the effect that this point cannot be raised, at the time of the hearing of this appeal when it has not been specifically taken in the grounds of appeal in this court. The second objection raised by the learned counsel for the respondent is that the evidence on record and the findings of the appellate court clearly show that the other heirs of Faqir Chand were not necessary parties to the suit. It may be mentioned here that the learned counsel for the appellant also argued with this point that the other heirs were also necessary parties is directly connected with another point, which has been raised by him relating to the non -issuance of the notice and service of the notice u/s 106 of the Transfer of Property Act on the other heirs of Faqir Chand. I will take up a discussion about the notice in the course of the judgment but here I will discuss this point which has been raised with regard to the non -joinder of the other heirs of Faqir Chand, This fact was not disputed that Faqir Chand was the lessee who had executed the deed of lease in respect of the suit premises and that Faqir Chand died leaving behind three sons and one daughter. Admittedly only two of the sons of Faqir Chand i.e. defendants 1 and 2 were impleaded in the suit, the other son and the daughter of Faqir Chand were not impleaded in the suit, I may point out here, although this point relating to non -joinder has been taken in the course of arguments here but there was no such ground taken in the memorandum of appeal. It also appears that the learned appellate court had discussed this point and has also given his reasons for holding that the other heirs of Faqir Chand were not necessary parties to the suit. A persual of the relevant paragraphs of the written statement particularly Paras 4 and 5 clearly show that the stand which has been taken by the defendant appellant was that a partition had taken place between the defendants i.e. himself and his brother and the suit shop had fallen exclusively to the share of the defendant No. 1. According to the pleadings in the written statement neither defendant No. 2 nor any other heir of Faqir Chand had any interest left in the property as far as the tenancy was concerned. It may be also made clear here that it was a suit for ejectment and the question which was to be determined was whether there was an existence of the relationship of landlord and tenant between the plaintiff on the one hand and defendant No. 1 on the other. Now as far as this is concerned, the recitals in the written statement clearly show that defendant No. 1 not only admitted the tenancy but he also pleaded that he alone was concerned with the tenancy in -as -much as he was running the shop in the suit premises and the other persons had no interest whatsoever therein. It also appears as has been discussed by the lower appellate court in its Judgment that almost all the witnesses produced by the defendant also specifically stated that defendant No. 1 was running the suit shop for the last 14 to 15 years and none of them stated that the brother or the sister of defendant No. 1 was in any way concerned with the business which was being carried on in the suit premises. Kundan Lal the appellant was the defendant himself and he also examined himself and he was also silent on this point that his other brothers and sister had any interest and rather he asserted that his other brother defendant No. 2 was running a separate shop in Rughnath Bazar which exclusively belonged to that brother of him. These facts clearly show that according to the pleadings of defendant No. 1 himself, the other heirs of Faqir Chand had no interest as far as the tenancy of the suit premises is concerned and, therefore, it was rightly held that in such circumstances the other heirs were not necessary parties to the suit. 4. The second point which has been urged and as stated above, is connected with the first point about the necessary parties already discussed above. The contention of the learned counsel appearing for the appellant is that the notice in this case as required by Section 106 of the Transfer of Property Act was not in accordance With law in as much as notice had not been served on all the heirs of Faqir Chand. This point has been specifically taken in para 5 of the memo of appeal where it has been stated that the notice was not in accordance with law and that this point was argued before the lower appellate court but was not taken into consideration. The learned counsel for the appellant in this connection has submitted that a lease is a heritable interest meaning thereby that the interest in the lease devolved upon all the heirs of Faqir Chand but here in this case the defendants 1 and 2 are only said to have been served with the notice. Reliance was placed in this connection on a decision of Calcutta High Court in the case of Anwarali Bepari and others Vs. Jamini Lal Roy Choudry and others reported in A. I. R. 1940 Cal. 89. It was held in that case that a lease is not extinguishable by the death of a lessee and must devolve on his heirs like any other interest in immovable property i.e. such a lease is heritable. Reliance in this connection was also placed on another decision of the Calcutta High Court in the case of Bejoy Chand Mehatab Vs. Kali Prasanna Seal and others reported in A.I.R. 1925 Cal. 752. It was held that in the case service of notice u/s 106 of the Transfer of Property Act it is necessary in order to bind even a joint tenant that the notice must be addressed to and served on him in one of the ways mentioned in the second clause of that section. In my opinion there can be no doubt that a lease would be heritable and on the death of the lessee it would devolve on all the heirs and that in such circumstances a notice on all the heirs would be necessary. It was also contended by the learned counsel for the appoint that it might have been sufficient if the notice had been addressed to all the heirs but here in this case the notice was not addressed to all the heirs of Faqir Chand. The question whether a particular lease has devolved on all the heirs is a question of fact dependent on the circumstances of each case. In this case I have already pointed above that defendant No. 1 who was the contesting defendant specifically took the stand that he alone was running the shop in the premises in question and that in other words the relationship of landlord and tenant existed only between him on the one hand and the plaintiff on the other. This assertion excludes the possibility according to the defendants case of the other heirs having any interest in the suit premises. I may again point out here that the question which was determinable in a suit of the present nature was whether the relationship of landlord and tenant was between the plaintiff and defendant No. 1 on the one hand or between the plaintiff and all the heirs of Faqir Chand on the other. Now in view of the assertion that the other heirs of Faqir Chand do not have any interest, in the suit premises, then it would mean that by mutual arrangements, as has been pleaded in the written statement, the devolution of interest as far as this lease is concerned, was only on defendant No. 1 and he was liable for the rent and further that the relationship of landlord and tenant existed between him only and the plaintiff. In such circumstances in my opinion it is not a case where the suit could have failed only on account of the non -service of the notice on the other heirs of Faqir Chand. 5. The third point which has been urged is that the plaintiff claims to have acquired interest by virtue of a Tamlik Nama and the learned counsel for the appellant has submitted that Tamlik Nama is a document in the nature of a deed of release or deed of relinquishment. He has, therefore, urged that since it was a deed of release so such a document cannot have conferred a title on the plaintiff. I may again mention here that admittedly the original owner sold the premises in question to Bua Datta Mal and the evidence on record also clearly shows that Bua Datta Mala executed a registered deed of Tamliq Nama in favour of the plaintiff who is his son. In the first place I may point out that there is no denial of the execution of such a document and in the written statement also it was not specifically pleaded that the document did not confer any title on the plaintiff. A very important question arises for consideration, as to what is the meaning of word"Tamliq -Nama". I may refer here in this connection to Venkataramaiyas law Lexicon (1971 Ed) Vol. II at page 1956. The meaning of the word "Tamlik" as well as "Tamliknama" have been given therein and it will be pertinent to quote the same: "Tamlik. The word tamlik is very often popularly used in the sense of a settlement in the case of trust properties." "Tamliknama means a document by which maliki or ownership rights are transferred and the document expressly says that the grantee has been made a malik or owner." "The word tamlik means assign and the deed is tamliknama. The definition and the import of the word Tamliknama as given above clearly shows that it does not comprehend with its meaning the deed of release or relinquishment. I may also refer here to the same Law Lexicon at page 1382 where the word release has been defined. It does not also show that a Tamliknama would be comprehended within the meaning of a deed of release. Reliance was placed in this connection by the learned counsel for the appellant on a decision in the case of Mt. Hubraji Vs. Deputy Commissioner reported in A. I. R. 1943 Oudh 169. In that case what arose for consideration was whether that particular document would be governed by Art. 55 or Art. 23 of the Stamp Act; but it was also laid down that in order to determine whether the document in question falls within the ambit of Art. 55 or Art. 23 it would be necessary to determine its nature by reference not merely to the letter but to the substance of the deed. It is important, therefore, to see as to what are the recitals of a particular document and what was the intention of the executant to determine the nature of the document. The recitals were read over at the time of the hearing by the learned counsel for the respondent and it is quite clear from the recitals that Bau Datta Mal in unequivocal language transferred the suit premises to the plaintiff. The recitals. therefore, do not show that it can be regarded as a deed of release or relinquishment . The learned counsel for the respondent has also in this connection relied on a decision in the case of Kuppaswami Chttiar Vs. S. P. A Arunangan Chettiar and another reported in A. I. R. 1957 S.C. 1395 in which it was held with reference to the relevant provisions of the Transfer of Property Act that a release can be usefully employed as form of conveyance by person having some right or interest to another having limited estate and release then operates as enlargement of limited estate. But a deed called a deed of release can, by using words of sufficient amplitude transfer title to one having no title before transfer. Having regard to all these facts I do not think that this contention of the appellant was correct that the document Tamlik Nama did not confer any title on the plaintiff. This point is also thus decided in favour of the respondent. 6. The next point which has been urged is that the courts below did not consider the importance of the words reasonably required and that the facts and circumstances show that it cannot be paid that the plaintiff had a real necessity for getting the shop vacated and that balancing the comparative advantages; and convenience the courts below ought to have held that the suit for ejectment should be dismissed as the defendant appellant had a greater necessity and not the plaintiff. In the first place I may point out that both the courts below after due appraisal of the evidence and circumstances have come to a concurrent finding about the necessity. It was contended by the learned counsel for the appellant that the plaintiff could not be said to have any necessity because he had a shop in Lakh -data Bazar and another shop at Ware -house, Jammu. It appears from the evidence on record and the judgment of the lower appellate court that this position was not disputed that Tilakraj who is the owner of the shop occupied by the plaintiff at Lakh -datta Bazar had filed a suit for ejectment against the plaintiff and in that suit a compromise decree had been passed against the plaintiff. The plaintiff is therefore required to vacate that shop and the execution proceedings for the same are pending in the court of City Judge, Jammu. It was no doubt contended on behalf of the appellant, in the course of arguments that this was a collusive decree but there is no material on record to support fact and the very fact that a decree for ejectment had been raised against the plaintiff in respect of a shop at Lakhdatta Bazar is clearly a circumstance to show that the plaintiff has to leave that shop. It also appears that there is another shop adjacent to the shop in question and the plaintiff has got that shop vacated. The area of the shop, which the plaintiff had got vacated, is very small. It was contended that the plaintiff could carry on his business in the shop which he has got vacated but on the other hand it was contended that the plaintiffs business is such that it requires a large accommodation and space and that could be possible only when he gets the defendant ejected and can make the shop which he has got vacated and the shop occupied by the defendant into one. Both the courts below have considered the circumstances and on appraisement of the evidence have finally come to the conclusion that the plaintiff is in personal necessity of the premises in question. This is clearly a finding of fact which cannot be disturbed in a second appeal and besides that I see no reason also to differ from the reasonings which have been given by the courts below in this respect. 7. The last point which was urged by the learned counsel for the appellant was that there was one Shri N. C. Mahajan who was examined as a witness on behalf of the defendant but the trial court neither discussed nor even referred to this witness. He contends that there was a material omission and non -consideration of the evidence of Shri N. C. Mahajan witness. The lower appellate court has considered this matter and has stated that the statement of the aforesaid witness does not help the appellant in any way because this witness is residing at New Delhi since 1948 and he visited the suit shop only during his trip to Jammu and that as such he was quite ignorant about the facts involved in this case. These facts which have been stated in the judgment of the lower appellate court have not been refuted in the course of the argument by the learned counsel for the appellant and considering the nature of the evidence of Shri N. C. Mahajan I think it would not have materially effected even if the evidence of Shri Mahajan witness is considered. The evidence does not help the appellant and therefore the finding cannot be set aside only on the ground that there is non -consideration of his evidence and besides that the lacuna if any, in this respect in the judgment of the trial court, has been removed when the lower appellate court applied its mind to this aspect of the matter and has given his finding. 8. In view of all these facts, the appeal fails and is hereby dismissed with costs.