OTAR MAL Vs. SUWA LAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated July 16, 1977 of the District Judge, Bhilwara, affirming the judgment and decree of the Additional Munsif and Judicial Magistrate, passed on November 21, 1975 in a suit for eviction. The brief facts of the case are that the respondent No. 1 was inducted as tenant in the shop situated in Bhilwara by Mishri Lal. On March 4, 1971 Mishrilal mortgaged the shop with Otarmal, appellant herein. It was a usufructuary mortgage. Otarmal filed a suit for eviction in the Court of Additional Munsif and Judicial Magistrate, Bhilwara against Suwalal on the ground that the suit shop was required reasonably and bonafide by him as he wanted to carry on his business in the shop. The suit was contested by Suwalal denying the plea of the appellant that the shop was required by him reasonably and bonafide for his own use. A further plea was also raised that the plaintiff was a relative of Mishrilal and the mortgage in his favour was a sham transaction.

(2.) THE Additional Munsif cum Judicial Magistrate, Bhilwara by his judgment dated the 21st November, 1985 dismissed the plaintiff's suit holding inter alia that the plaintiff failed to prove that the shop was required by him reasonably and bonafide for his own use. An appeal was filed against the aforesaid judgment by Otarmal but the same was dismissed by the District Judge, Bhilwara by the judgment dated the 16th July, 1977 agreeing with the finding of the learned Munsif that the plaintiff had failed to prove that the suit shop was required by the plaintiff reasonably and bonafide. Aggrieved by the aforesaid judgment, the plaintiff has filed the present appeal in this Court.

(3.) IN the present case Suwalal respondent No. 1 was inducted as a tenant by Mishrilal. Suwalal has not denied the title of Mishrilal. The suit premises was however, mortgaged by Mishrilal under a usufructuary mortgage with Otarmal who has filed the present suit for eviction. Suwalal has disputed this transfer in favour of Otarmal. The contention of the counsel for the appellant is that this amounts to denial of the title of the landlord and falls within the ambit of Section 13(1)(f) of the Act. I do not agree with the learned counsel for the appellant. As already observed a tenant may put the transferee to proof of the validity of the transfer in his favour so as to ensure his own position and such a plea would not amount to denial of the title of the landlord and furnish a ground for eviction under Section 13(1)(f) of the Act. It is significant in this case that it has not been brought on record that the mortgagor served any notice on Suwalal informing him that the property had been transferred by usufructuary mortgage to Otarmal. I, therefore, hold that the plea raised by the tenant does not amount to a plea of denial of title of the landlord.