IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CIVIL SECOND APPEAL NO.286/2002
Hasmat Khan (since deceased) through his LRs.
Vs.
Mohd.Yakub s/o Shri Abdul Gafoor
Date of Order :: Wednesday, 27th January, 2016.
P R E S E N T
HON'BLE DR. JUSTICE VINEET KOTHARI
Citation: AIR 2016(NOC)279 Raj
1. The present second appeal under Section 100 CPC has been filed by the defendants legal representatives of Mohd.Yakub s/o Shri Abdul Gafoor, aggrieved by the judgment and decree dated 19.10.2002 passed by the learned appellate court of Additional District Judge No.1, Jodhpur in Civil Appeal Decree No.67/94 – Hasmat Khan Vs. Mohd.Yakub, partly allowing the appeal filed by the defendant-tenant against the judgment and eviction decree 15.09.1994 passed by the learned trial court of Additional Civil Judge (Junior Division) & Judicial Magistrate No.2, Jodhpur in Civil Original Suit no.276/87 – Mohd.Yakub Vs. Shri Hasmat Khan & Anr., decreeing the suit for eviction filed by the plaintiff-landlord, in respect of the suit property in question situated at Bamba Mohalla, Jodhpur, on the ground of denial of landlord-tenant relationship by the defendant-tenant.
2. The relevant extract of the findings of the learned trial court in the order dated 15.09.1994 is quoted below for ready reference:-
(vernaculars omitted)
3. The relevant extract of the findings of the learned appellate court in the order dated 19.10.2002 is quoted below for ready reference:-
(vernaculars omitted)
4. While admitting the present second appeal on 08.08.2005, a coordinate Bench of this Court framed the following substantial questions of law for consideration by this Court:-
“(1) Whether the plaintiff has failed to establish the landlord-tenant relationship between himself and the defendant-appellant and the learned courts below have erred in assuming the existence of such relationship?
(2) Whether the learned courts below have erred in failing to consider the effect of receipts Ex.3 to 5 vis-a-vis the pleadings in the plaint about the arrears of rent and so also the assertions about the arrears in the notice Ex.1?”
5. Learned counsel for the plaintiff-respondent-landlord, Mr.L.K.Purohit informed the Court that the plaintiff-landlord-Mohd.Yakub had expired way back on 24.05.2012, but no steps have been taken for bringing his legal representatives on record by the defendants-appellants for last more than three years, and therefore, the present second appeal has abated and deserves to be dismissed as such. Without prejudice to the aforesaid submissions, Mr.L.K.Purohit urged that the question of title of the suit property in question is not relevant to be determined in the present case and the defendants-tenants had wrongly claimed to be the tenants of one Sardar Khan, co-brother of the present plaintiff-landlord-Mohd.Yakub, and therefore, the eviction decree granted on the ground of denial of title under Section 13(1)(f) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 is justified and deserves to be maintained by this Court.
6. On the other hand, Mr.Suresh Shrimali appearing with Mr.Teja Ram Choudhary, learned counsel for the defendants-appellants-tenants submitted that the application for bringing the legal representatives of the present plaintiff-landlord-Mohd. Yakub has now been filed by the defendants-tenants and the delay caused in filing the same deserves to be condoned and the legal representatives of the present plaintiff-landlord-Mohd. Yakub may now be taken on record. He however, had no explanation for the long delay in filing such application, even though the fact as contended by the learned counsel for the plaintiff-landlord that both the landlord and the tenant lived in the respective portions of the same suit property in Bamba Mohalla, Jodhpur. Therefore, the fact of death of the present plaintiff-landlord-Mohd. Yakub cannot be assumed to have escaped to the notice of the defendant-tenants. Thus, no reasonable explanation has come forward for such a long delay in filing the requisite application. The same is therefore, liable to be rejected and is accordingly rejected.
7. On merits, Mr.Suresh Shrimali submits that the landlord of the defendant-tenant, Sardar Khan has also filed an eviction suit against the same tenant and the present plaintiff-landlord-Mohd. Yakub had no title in respect of the suit property in question, and therefore, the questions of law framed above deserve to be answered in favour of the defendants-tenants.
8. I have heard the learned counsels for the parties at length and perused the record as well as the impugned judgment and decrees passed by the learned courts below.
9. It is well settled legal position that in the rent and eviction matters, question of title is not relevant and cannot be decided by the Courts, unless the defendant-tenant claims and sets up his own title over the suit property in question. In the present case, admittedly, the defendants-tenants claimed to be owner of the suit property, but they failed to establish as to who is the actual owner of the suit property in question, whether the present plaintiff-landlord-Mohd. Yakub or one of his co-brother, one Sardar Khan. The inter-se dispute between the two persons, namely, Sardar Khan and Mohd. Yakub about the title of the property, if any, is not relevant to be decided in the present case. The relationship of the landlord and tenant, as determined between the plaintiff-Mohd. Yakub and defendant-tenant-Hasmat Khan by the learned courts below on the basis of oral evidence led before them, is essentially a finding of fact, which does not give rise to any substantial question of law. The tenant cannot ask for determination of the dispute of title of the suit property in question between the two parties in rent and eviction case against him. Therefore, the contention raised by the learned counsel for the defendants-tenants does not have any merit and the same is hereby rejected.
10. As far as the abatement of the present second appeal is concerned, this Court is of the opinion that no reasonable explanation has come forward from the side of the defendants-tenants for not taking any step for last more than three years for bringing the legal representatives of the present plaintiff-landlord-Mohd. Yakub on record. Therefore, abatement of the appeal also follows.
11. There is no justifiable ground has been shown to condone such a huge delay and now the defendants-tenants took the legal representatives of the present plaintiff-landlord on record at this belated stage, more particularly, when this Court does not find any ground to set aside the abatement and also in view of the settled legal position that the question of title is irrelevant in the rent and eviction matters.
12. Therefore, this Court does not find any merit in the present second appeal of the defendant-tenant and the same is liable to be dismissed.
13. Accordingly, the present second appeal of the defendants-tenants is dismissed and while answering the substantial questions of law framed above in favour of the plaintiff-landlord and against the defendant-tenant, the eviction decree is upheld in favour of the respondent-plaintiff-landlord.
14. In the circumstances, it is directed that the defendants-tenants shall hand over the peaceful and vacant possession of the suit property in question to the plaintiff-landlord on or before 31.07.2016 and shall pay mesne profit @Rs.1,000/- per month (Rupees One Thousand only) commencing from the month of February, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the plaintiff-landlord also and in case there is any default in payment of mesne profit, the period of Six Months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendants-tenants shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff-landlord within three months from today, otherwise the same will bear interest @9% per annum. The defendants/tenants shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The defendants-tenants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the plaintiff-landlord within a period of Six Months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the plaintiff-landlord shall also be entitled to invoke the contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.
(Dr. VINEET KOTHARI), J.
skant//3(m)
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