KASTURI LAL Vs. BRIM LAL

JUDGEMENT

(1.) UNDER clause 12 of the Letters Patent of this Court, the present appeal is directed against the judgment of Single Judge of this Court (Honble Mr. Justice G. M, Mir), as he then was, pissed in Civil Second Appeal No. 53 of 1974 on April 20, 1978 dismissing the appeal of the appellants. On a prayer being made before the learned Single Judge on the pronouncement of the judgment by the learned counsel for the appellants, the learned Single Judge under the provisions of Rule 49 of the Jammu and Kashmir High Court Rules, 1975 granted tae permission to the appellants to file the Letters Patent Appeal holding that this is a good case, in which a certificate under clause 12 of the Letters Patent be issued. It is also mentioned in the Certificate on the submission of the counsel for the appellants that the learned Single Judge while disposing of the Civil Second Appeal has given its findings with regard to the issues raised in the suit, above which the first appellate court has not returned its findings.

(2.) FACTS giving rise to the present appeal shortly stated: On June 21, 1968 Brij Lal and Romesh Chander both respondents I and 2 in the present case filed a suit for ejectment of the shop situated at Raghunath Bazar. Jammu in dispute against their tenant -Dhani Ram as defendant No. 1, of whom the present appellants are the legal representatives and Mohan Lal, defendant No 2 in the Civil Suit, who is now made respondent No. 3. Describing him as a subtenant of Dhani Ram. The suit was filed on the grounds of personal necessity and sub -letting of the disputed shop under section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (Act. No. XXXIX of 1966) (for short hereinafter called the Act.) It was alleged that the suit shop was purchased by the plaintiffs from Smt. Vidya Rani by a registered sale deed dated September 27, 1967, which was let -out on a monthly rent of Rs. 250/ - to defendant No. 1 Dhani Ram by the last owner Smt. Vidya Rani under the rent deed executed on January 2, 1964 with effect from December 1, 1963 for a period of eleven months. Both the defendants in a joint written statement contested the suit of the plaintiffs. The learned trial Court, i.e., City Judge, Jammu by his judgment and decree dated December 30, 1972 decreed the suit of the plaintiffs for the ejectment of the defendants from the suit shop. An appeal was preferred by Dhani Ram against respondents before District -Judge, Jammu against the said decree for ejectment. Dhani Ram died during the pendency of appeal on October 12. 1973, in his place the present appellants were brought on record as legs! representatives of the deceased. It was stated in the application under Order 22 Rules 1,5 and II of the Code of Civil Procedure before the first appellate Court that Kasturi Lal alongwith Sat Pal both sons of deceased Dhani Ram were in possession of the suit shop, who alongwith other legal representatives of the deceased constituted a joint Hindu Family, hence entitled to prosecute the appeal and resist the suit for ejectment. The application was contested by the Respondents before the first appellate Court on the ground that Dhani Ram, who became a statutory tenant after the termination of his tenancy, his rights of tenancy were not heritable. The learned first appellate Court decided the application holding that the protection against eviction under the Act available to the deceased tenant was personal to him, whose rights are not heritable, but at the same time allowed the legal representatives to be brought on record for the purposes of handing over possession to the landlord holding that the protection against eviction available to the deceased -tenant personally having perished with him, the petitioners (Appellants) do not have any right to continue the appeal. Hence the first appeal was dismissed by the first appellate Court. The appellants being aggrieved against the said judgment and decree filed the Civil Second Appeal before the High Court, which came up for hearing before the learned Single Judge who also dismissed the appeal upholding the judgment and decree passed by the Courts below. The learned Single Judge in the Civil Second Appeal confirmed the findings on issues decided by the Trial Court under the decree impugned before us. Thus this letters Patent Appeal on a Certificate granted by the learned Single Judge as quoted above, which is contested by respondent 1 and 2.

(3.) LEARNED counsel for the appellants Mr. R. P. Sethi reiterating the three points raised before the learned Single Judge addressed this Court precisely on the following propositions: - i) That the learned Single Judge mis -interpreted the Judgment of the Supreme Court reported in A I. R 1976 S. C. 2220 and erred in law in holding that the Act does not include the legal representatives of a deceased statutory tenant. ii) That the definition of the "tenant" in Section 2(6) of the Act irrespective of the semi -colon after the words such person continuing in possession after termination of tenancy in his favour includes the legal representatives of the deceased -tenant even after the determination, by holding otherwise the learned Single Judge Mis -interpreted the provisions of the Act. iii) That the learned Single Judge acted illegally and beyond the scope of power under the Code of Civil Procedure in confirming the findings of issues of the trial Court, about which first appellate Court has not decided.