GAURI Vs. BRIJKANWAR DEVI

JUDGEMENT

(1.) THIS is second appeal arising out of a suit for eviction.

(2.) THE suit premises are situate at Chowk Panigraha. Ajmer (house No. 19/ 477 ). THEy were taken on rent by one Shri Harjamal for Rs. 20. 50 per month. THE tenancy was oral and commenced from the 1st of each calendar month. THE plaintiff-respondent terminated the tenancy of Harjamal and then filed a suit against him for arrears of rent and eviction in the court of Munsif, Ajmer City (West), Ajmer, on the ground of bona fide personal necessity. THE suit was later on transferred to the court of Munsif, Ajmer District, Ajmer. THE learned Munsif dismissed it on 5-9-1967. Aggrieved by the judgment and decree of the learned Munsif, the landlord went up in appeal to the court of District Judge, Ajmer. THE learned District Judge transferred the appeal to the the Civil Judge, Ajmer. During the pendency of the appeal Harjamal died on 27th February, 1968. THE appellant landlord before the Civil Judge, however, filed an application for impleading the legal representatives of deceased Harjamal on 1st July, 1968, that is, beyond the period of limitation and the appeal was accordingly treated as one that had abated (vide order of the Civil Judge dated 18th August, 1969 ).

(3.) SO far as the question whether the protection available to a statutory tenant under section 13 of the Act could be claimed by his heirs after his death or not is con-cerned their Lordships of the Supreme Court have held in a number of cases, and I need cite only one, namely, J. C. Chatterjee vs. Shri Sri Kishan Tandan (l) that the heirs of the deceased tenant whose tenancy had been determined cannot claim the statutory protection. Also the question whether on the death of a tenant whose contractual tenancy had already been determined during the pendency of a suit for eviction filed by the landlord the possession of the premises against the legal representatives of the deceased tenant could be claimed in the same suit has been settled by a Division Bench of this Court in an un-reported case Damodar Das vs. Badri Narain (D. B. Civil Special Appeal No 3 of 1965, decided on 7th April, 1966 ). The relevant observations may be read in extenso: "we have not been impressed by Mr. Agar-wal's argument that the landlord will have to file a separate suit against the present respondents if he wants to evict them Mr Agarwal has candidly conceded that under the general law a suit for eviction commenced against a tenant could be continued on the death of the tenant against his legal representatives and on a decree being given they can be evicted from the premises occupied by them. Mr. Agarwal seeks to draw a distinction in the case of a statutory tenant. He submits that the cause of action against such a person arises only under the Act and once that right of the statutory tenant under the Act has come to an end with his death no right remains subsisting against his heirs. We however find ourselves unable to bifurcate the cause of action so as to limit it to be one under the Act alone. As already observed by us, a landlord seeking eviction has to show that he has fulfilled the requirements of the Transfer of Property Act and thereafter he has also to show that he satisfies the conditions laid down in sec. 13 of the Act, so that the immunity granted by that section to the tenant is not available. As such we are not convinced that cause of action should be narrowed down only to the facts necessary to be established for getting over the ban created by sec. 13 of the Act. The term cause of action will comprise a bundle of all essential facts necessary for the plaintiff to prove before he can succeed and it will be as much necessary for the plaintiff to prove that he has properly determined the tenancy in accordance with sec. 111 of the Transfer of Property Act, as it would be to show that the ban imposed by sec. 13 of the Act against his getting the relief stands removed. If by operation of law the ban imposed by sec. 13 of the Act stands lifted against the landlord then in such a situation his cause of action will be founded only on the existence of the tenancy and its determination according to the provisions of the Transfer of Property Act. Such a right of action, to our mind, will survive against the legal representatives of a deceased tenant. Right to get possession of ore's property is not in the nature of a personal right, but it relates to property and hence can be enforced against the legal repre sentatives of an adversary after his death, It is true the legal representatives will be able to raise all the defences which were open to the deceased tenant under the general law, but as the Rent Control Act does not provide for any devolution of such right claimable under sec. 13 of the Act in favour of the legal heirs of a deceased tenant, as per dicta of their Lordships of the Supreme Court in Anand Niwas Pvt. Ltd. vs. Anandji Kalyanji's Pedhi and others such immunity cannot be claimed by the present respondents. As we have already observed that on 1-2-1961 Damodardass had given a notice to Radha Vallabh that the shop should be vacated and it is not contested before us that tenancy was not terminated according to law by this notice. We are, therefore, unable to accept Mr. Agarwal's contention as sound. "