Case: Satya Narayan Garg Vs Kanhaiya Lal Pyare Lal and Anr.. Rajasthan High Court
| Judges | Vineet Kothari, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Section 96; Companies Act, 1956 - Sections 391, 394 |
| Citation | RLW 2008 (2) Raj 1189 |
| Judgement Date | September 18, 2007 |
| Court | Rajasthan High Court |
Judgment:
Vineet Kothari, J., (Jaipur Bench)
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This is defendant's first appeal under Section 96 of the Civil Procedure code against the judgment and decree of eviction dated 2.7.1987 passed by the learned Additional District Judge, No. 2, Ajmer decreeing Civil Suit No. 389/85(18/79) whereby the learned trial Court decreed the plaintiff's suit for arrear of rent and eviction.
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The facts in brief are that the plaintiff, Kanhaiya Lal Pyare Lal Gotewala gave his portion of property situated at 1193/28, Adarsh Nagar, Ajmer to M/s. Mala Tiles whose proprietor at the relevant time i.e. on 16.7.1971 was Smt. Krishna Gupta, defendant No. 1 and her power of attorney holder, Shri Satya Narain Garg, defendant No. 2, who was also close relative, namely, sister's husband of defendant No. 1, Smt. Krishna Gupta, looked after the business of manufacturing of the tiles in the said suit premises. The rent was paid @ Rs. 175/- per month and in the first instance, the rent for six months was paid by the tenant vide receipt (Ex. 1) for a period of six months, namely, Rs. 1050/-. It was further the case of the plaintiff that on 8.8.1975, the said business of M/s. Mala Tiles was assigned or sold by the defendant No. 1, Smt. Krishna Gupta, to defendant No. 2, Satya Narain Garg, who was earlier her power of attorney holder and thus, the defendant No. 1, Smt. Krishna Gupta, had parted with the possession of the suit property to the said Shri Satya Narain Garg and, therefore, the plaintiff-landlord became entitled to a decree of eviction. The aforesaid suit was decreed by the learned trial Court in favour of the plaintiff and, therefore, the defendant No. 2, Satya Narain Garg, has filed the present appeal before this Court.
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The only point pressed before this Court in the present appeal is that there was no case of parting with the possession made out by the plaintiff-landlord and, therefore, the decree of eviction could not be granted by the learned trial Court. Section 13 of the Rajasthan Rent Control Act, 1950 enumerating the grounds of eviction of tenant vide Clause (e) thereof provides, "that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without any permission of the landlord".
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Mr. G.K. Garg, learned Counsel appearing for the defendant-appellant-tenant taking this Court through the pleadings and evidence led by the plaintiff as well as defendant, submitted that firstly, the plaintiff had failed to prove that Smt. Krishna Gupta was the tenant of the plaintiff, secondly, defendant No. 2, Satya Narain Garg was put in possession of the suit property right from day one and, therefore, there was no question of Smt. Krishna Gupta, assuming for argument sake that she was tenant of the plaintiff-landlord, parting with the possession in favour of defendant No. 2, Satya Narain Garg, who was the person who paid the rent to the plaintiff-landlord as was clear from the receipt (Ex. 1) and he was looking after the business of tenant right from day one of the tenancy and, therefore, learned trial Court could not have decreed the suit of eviction on the ground of assignment, sub-letting or parting with the possession. He urged that while the learned trial Court rightly found that no case of sub-letting was made by the plaintiff while deciding issue No. 6, but it had fallen into error while holding that defendant No. 1, Smt. Krishna Gupta, had parted with the possession to defendant No. 2, Satya Narain Garg and thus, granting the decree of eviction. He submitted that the defendant had not only stated in his written statement in Paras 1 and 8 that both Smt. Krishna Gupta and he were the joint owners of the business firm M/s. Mala Tiles of which he became the sole proprietor w.e.f. 8.8.1975, and in the witness given before the learned trial Court also the defence witnesses had so clearly stated before the trial Court and thus, there was no question of parting with the possession in favour of a person, who was already in possession, namely, defendant No. 2, Satya Narain Garg. He, thus, urged for setting aside the impugned decree of eviction.
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Mr. G.K. Garg, learned Counsel for the appellant, relied upon the following judgments in support of his submissions:
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Jagan Nath v. Chander Bhan AIR1988SC1362
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Amir Ahmed v. Yusuf
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Mahavir Prasad Verms v. Dr. Surinder Kaur 1982 (2)ACJ 205
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Md. Salim v. Md. Ali [1987]3SCR1087
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Gulam Mohammed v. Kishanlal 1975 WLN 207
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Smt. Shanti Devi v. Puran Chand and Ors.
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Madhavlal v. Smt. Govindi Bai 1971 RLW 64
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Manchharam Sobhraj v. Jamnadas Mulchand AIR 1976 Guj 47
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The Punjab Handloom Weavers Apex Co-operative Society v. Smt. Gian Wati AIR 1971 ACJ 291
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Gundalapalli Rangamannar Chetty v. Desu Rangiah AIR1954Mad182
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In Jagan Nath v. Chander Bhan and Ors. (supra), the Hon'ble Supreme Court laid down that there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. In that case even the tenant-father had retired from the business of Hindu undivided family and the sons had been looking after the business, it cannot be said that the father had divested himself of the legal right to be in possession upon his retirement. If the father was carrying on the business with his sons and the family was a joint Hindu family, and the father has a right to displace the possession of the occupants, i.e., his sons, it is difficult to presume that the father had parted with possession legally to attract the mischief of Section...
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