It may be pointed out that it is well-settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if the succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputes, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In LIC v. India Automobiles & Co, (1990) 4 SCC 286 (SCC pp. 300-02, para 21) this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bona fide the Court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bona fide in the circumstances of the case.
Thus, the major issue before the learned trial court in a suit for eviction is whether a relationship of landlord and tenant exists between the parties or not? In case the tenant were to deny the ownership, then incidentally, the trial court is permitted to consider the issue of ownership. But, nonetheless, an issue of ownership is not really germane to the entire controversy. Moreover, in the case of Vimla Devi (supra) this court had clearly held that impleadment of a party should not be allowed if it leads to enlarging of a scope of inquiry in a suit.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
JUDGMENT
Prakash Chand Papriwal & Anr.
Versus
Pradeep Kumar Vaid & Ors.
SB Civil Writ Petition No.14022/2009 under Articles 226 & 227 of the Constitution of India against the order dated 26.10.2009 passed by the Civil Judge (J.D.) Kishangarh, Dist. Ajmer
Date of Judgment :: 07/10/2014
Present
HON'BLE MR. JUSTICE R.S. CHAUHAN
Read original judgment here; click here
Citation;AIR 2015(NOC)40 Raj
Aggrieved by the order dated 26.10.2009 passed by the Civil Judge (Jr. Div.), Kishangarh, District Ajmer whereby the learned Magistrate has allowed an application filed by the respondents-defendants under Order 1, Rule 10 CPC and has directed for impleadment of the Municipal Council, Kishangarh as a defendant in the suit, the petitioners have approached this court.
Mr. R.K. Agrawal, the learned senior counsel for the petitioners, has raised the following contentions before this court: firstly, the issue of ownership is not germane to a suit for eviction. In fact, what is essential is existence of relationship of landlord and tenant between the parties. In order to buttress this plea, the learned senior counsel has relied on the case of Dr. Ranbir Singh v. Asharfi Lal [(1995) 6 SCC 580] and on the case of Vimla Devi v. Nand Lal [1992(2) WLC (Raj.) 53].
Secondly, even if part of the open land, lying in front of the shop in question belonged to the Municipal Council, Kishangarh, even then such a situation would not have made the Municipal Council a necessary party to the suit. For, the court is merely required to see the relationship of landlord and tenant between the petitioners-plaintiffs and the respondents-defendants.
Thirdly, since the Municipal Council has not filed any application under Order 1, Rule 10 CPC, since the said application has been filed by the respondents-defendants, the said application should not have been allowed. For, it is not the case of the Municipal Council that their rights or interests might be adversely affected by the judgment and decree passed by the learned trial court.
Fourthly, impleadment of a party should not be allowed if it is going to enlarge the scope of the suit. In order to buttress this plea, the learned senior counsel has relied on the case of Dr. Ranbir Singh (supra) and on the case of Vimla Devi (supra). Thus, according to the learned senior counsel, the impugned order passed by the learned Magistrate is an arbitrary one, which deserves to be set aside.
On the other hand, Mr. Mahendra Shah, the learned counsel for the respondents-defendants, has strenuously contended that in the plaint, the size of the shop in question is unclear. For, according to Para-1 of the plaint, in new Plot No.12/3 there is a shop measuring 4'x15'. However, beyond the shop there is an empty space namely a 'Varandah'. Thus, it is unclear whether the shop area also includes the 'Varandah' or not? Moreover, the 'Varandah' is an open area under a tin-shed and actually belongs to the Municipal Council, Kishangarh. According to the respondents-defendants, they have been in possession of the 'Varandah' for the last sixty years. Thus, in case the petitioners seek to evict the respondents from the open area which belongs to the Municipal Council, naturally the Municipal Council has to be impleaded as a party defendant.
In rebuttal, Mr. Agrawal has initially pleaded that the shop area is only 4'x15'. However as he was unclear whether the 'Varandah' is included or not, he sought time to seek instruction from his party. Subsequently he informed this court that the shop area does, indeed, includes the 'Varandah' which is 15'x15'. However, according to him, this open area has been transferred by the Municipal Council to the petitioners through a ninety-nine years lease on 27.12.2012. Hence, presently, the petitioners happen to be the owner of the said open area. Hence, they have a right to seek eviction of the respondents-defendants from the said area.
Heard the learned counsel for the parties, and perused the impugned order and considered the case laws cited at the Bar.
In the case of Dr. Ranbir Singh (supra), the Apex Court had opined as under:-
9. It may be pointed out that it is well-settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if the succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputes, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In LIC v. India Automobiles & Co, (1990) 4 SCC 286 (SCC pp. 300-02, para 21) this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bona fide the Court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bona fide in the circumstances of the case.
Thus, the major issue before the learned trial court in a suit for eviction is whether a relationship of landlord and tenant exists between the parties or not? In case the tenant were to deny the ownership, then incidentally, the trial court is permitted to consider the issue of ownership. But, nonetheless, an issue of ownership is not really germane to the entire controversy. Moreover, in the case of Vimla Devi (supra) this court had clearly held that impleadment of a party should not be allowed if it leads to enlarging of a scope of inquiry in a suit. A bare perusal of the impugned order clearly reveals that the learned Magistrate has ignored these two cardinal principles of law. Therefore, the order dated 26.10.2009 deserves to be quashed and set aside.
However, as there has been subsequent development in the case as according to the petitioners, the 'Varandah' has been transferred to them through a ninety nine years lease, the complexion of the case has undergone a change. Therefore, this court quashes and sets aside the impugned order dated 26.10.2009 and remands the case back to the learned trial court for deciding the application under Order 1, Rule 10 CPC afresh, keeping in mind both the principles of law as well as the subsequent development of the case. The learned trial court shall pass its order on the application under Order 1, Rule 10 CPC within a period of one month from the date of receipt of certified copy of this judgment.
With these observations, this petition is hereby, disposed of.
(R.S. CHAUHAN)J.
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Thus, the major issue before the learned trial court in a suit for eviction is whether a relationship of landlord and tenant exists between the parties or not? In case the tenant were to deny the ownership, then incidentally, the trial court is permitted to consider the issue of ownership. But, nonetheless, an issue of ownership is not really germane to the entire controversy. Moreover, in the case of Vimla Devi (supra) this court had clearly held that impleadment of a party should not be allowed if it leads to enlarging of a scope of inquiry in a suit.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
JUDGMENT
Prakash Chand Papriwal & Anr.
Versus
Pradeep Kumar Vaid & Ors.
SB Civil Writ Petition No.14022/2009 under Articles 226 & 227 of the Constitution of India against the order dated 26.10.2009 passed by the Civil Judge (J.D.) Kishangarh, Dist. Ajmer
Date of Judgment :: 07/10/2014
Present
HON'BLE MR. JUSTICE R.S. CHAUHAN
Read original judgment here; click here
Citation;AIR 2015(NOC)40 Raj
Aggrieved by the order dated 26.10.2009 passed by the Civil Judge (Jr. Div.), Kishangarh, District Ajmer whereby the learned Magistrate has allowed an application filed by the respondents-defendants under Order 1, Rule 10 CPC and has directed for impleadment of the Municipal Council, Kishangarh as a defendant in the suit, the petitioners have approached this court.
Mr. R.K. Agrawal, the learned senior counsel for the petitioners, has raised the following contentions before this court: firstly, the issue of ownership is not germane to a suit for eviction. In fact, what is essential is existence of relationship of landlord and tenant between the parties. In order to buttress this plea, the learned senior counsel has relied on the case of Dr. Ranbir Singh v. Asharfi Lal [(1995) 6 SCC 580] and on the case of Vimla Devi v. Nand Lal [1992(2) WLC (Raj.) 53].
Secondly, even if part of the open land, lying in front of the shop in question belonged to the Municipal Council, Kishangarh, even then such a situation would not have made the Municipal Council a necessary party to the suit. For, the court is merely required to see the relationship of landlord and tenant between the petitioners-plaintiffs and the respondents-defendants.
Thirdly, since the Municipal Council has not filed any application under Order 1, Rule 10 CPC, since the said application has been filed by the respondents-defendants, the said application should not have been allowed. For, it is not the case of the Municipal Council that their rights or interests might be adversely affected by the judgment and decree passed by the learned trial court.
Fourthly, impleadment of a party should not be allowed if it is going to enlarge the scope of the suit. In order to buttress this plea, the learned senior counsel has relied on the case of Dr. Ranbir Singh (supra) and on the case of Vimla Devi (supra). Thus, according to the learned senior counsel, the impugned order passed by the learned Magistrate is an arbitrary one, which deserves to be set aside.
On the other hand, Mr. Mahendra Shah, the learned counsel for the respondents-defendants, has strenuously contended that in the plaint, the size of the shop in question is unclear. For, according to Para-1 of the plaint, in new Plot No.12/3 there is a shop measuring 4'x15'. However, beyond the shop there is an empty space namely a 'Varandah'. Thus, it is unclear whether the shop area also includes the 'Varandah' or not? Moreover, the 'Varandah' is an open area under a tin-shed and actually belongs to the Municipal Council, Kishangarh. According to the respondents-defendants, they have been in possession of the 'Varandah' for the last sixty years. Thus, in case the petitioners seek to evict the respondents from the open area which belongs to the Municipal Council, naturally the Municipal Council has to be impleaded as a party defendant.
In rebuttal, Mr. Agrawal has initially pleaded that the shop area is only 4'x15'. However as he was unclear whether the 'Varandah' is included or not, he sought time to seek instruction from his party. Subsequently he informed this court that the shop area does, indeed, includes the 'Varandah' which is 15'x15'. However, according to him, this open area has been transferred by the Municipal Council to the petitioners through a ninety-nine years lease on 27.12.2012. Hence, presently, the petitioners happen to be the owner of the said open area. Hence, they have a right to seek eviction of the respondents-defendants from the said area.
Heard the learned counsel for the parties, and perused the impugned order and considered the case laws cited at the Bar.
In the case of Dr. Ranbir Singh (supra), the Apex Court had opined as under:-
9. It may be pointed out that it is well-settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if the succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputes, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In LIC v. India Automobiles & Co, (1990) 4 SCC 286 (SCC pp. 300-02, para 21) this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bona fide the Court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bona fide in the circumstances of the case.
Thus, the major issue before the learned trial court in a suit for eviction is whether a relationship of landlord and tenant exists between the parties or not? In case the tenant were to deny the ownership, then incidentally, the trial court is permitted to consider the issue of ownership. But, nonetheless, an issue of ownership is not really germane to the entire controversy. Moreover, in the case of Vimla Devi (supra) this court had clearly held that impleadment of a party should not be allowed if it leads to enlarging of a scope of inquiry in a suit. A bare perusal of the impugned order clearly reveals that the learned Magistrate has ignored these two cardinal principles of law. Therefore, the order dated 26.10.2009 deserves to be quashed and set aside.
However, as there has been subsequent development in the case as according to the petitioners, the 'Varandah' has been transferred to them through a ninety nine years lease, the complexion of the case has undergone a change. Therefore, this court quashes and sets aside the impugned order dated 26.10.2009 and remands the case back to the learned trial court for deciding the application under Order 1, Rule 10 CPC afresh, keeping in mind both the principles of law as well as the subsequent development of the case. The learned trial court shall pass its order on the application under Order 1, Rule 10 CPC within a period of one month from the date of receipt of certified copy of this judgment.
With these observations, this petition is hereby, disposed of.
(R.S. CHAUHAN)J.
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