Bhagat Ram v. Mahant Prabhu Das

Shri Sharad Sharma, Senior Advocate assisted by Ms. Indu Sharma Advocate, and Shri Pankaj Miglani, Advocate, for the Petitioners. Shri Advocates, for the respondent Prabhu Das. Shri Dharmendra Barthwal, Siddharth Singh Hon’ble Prafulla C. Pant, J. In all these petitions, filed under Article of Constitution questions of fact and law are involved as such, these petitions are these are being disposal. All taken up filed by together India, tenants against same in respect of to which separate different suits, filed before Judge Small Causes Court, for tenements relating landlord recovery of eviction of his arrears of rent and mesne profits were decreed tenants and by the trial court, and the revisions were dismissed by the District Judge, Haridwar, vide his orders dated 22.10.2003/27.10.2003.

#2. Heard learned counsel length and perused for the parties at counter affidavits, affidavits and rejoinder affidavits, on record.

#3. Brief facts of the case are that Baba Dudha Dhari Barfani Ji Maharaj was the owner of the the present property litigation, a suit No. 75 of 1980, was filed by one Seva Dass against Baba Dudha Dhari, claiming title of the property which was finally decreed on in suits. Much before terms of compromise between

07.09.1980, said parties wherein the title of the Baba Dudha Dhari Barfani Ji Maharaj was accepted. The petitioners were tenants in the property in suit different tenements it. They applications 30(2) of U.P. Urban Buildings the year 1981, under section (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act No. XIII of 1972) against Baba Dudha Dhari and his two disciples Shyam Dass and Mahavir Dass. Only Baba Dudha Dhari filed his (in objections against said applications the tenants had sought to deposit the rent in the court of Munsif) and claimed his landlordship. Baba Dudha Dhari died on 02.08.1994. On his (plaintiff/present death Maharaj Prabhu Dass respondent) claiming that he succeeded rights of landlordship from Baba Dudha Dhari, instituted 1995 (SCC suit No. 11 of 1995 small cause suits against Bhagat Ram, petitioner, SCC suit No. 16 against Gurucharan Gaur Bali, petitioner, SCC suit No. 15 of 1995 against Brahm Pal, petitioner, SCC Suit No. 6 of 1995 against Kishan Lal, petitioner, SCC Suit No. 17 of 1995 against Om Prakash, petitioner, SCC suit No. 6 of 1995 against Gopal Giri, petitioner and SCC Suit No. 25 of 1995 against Muniram, Judge Small Causes (Jr. Div.), Haridwar. The Court/Civil Judge plaintiff/respondent sought relief of eviction of the petitioners and recovery of arrears of rent and mesne profits, after serving notices on them under section 106 of Transfer of Property Act, 1882, stating that the petitioners/tenants have committed default of payment of rent as such petitioner) before their tenancy is terminated on expiry of thirty (30) days of service of notices. The present petitioners who were defendants contested the in which suit and filed the written statement they denied the title of the plaintiff and his predecessor in title Baba Dudha Dhari. It is also pleaded by them since in the proceedings under section 30(2) of U.P. Act No. XIII of 1972, Baba Dudha Dhari had mentioned in his objections in 1981, tenancies of the petitioners as such the plaintiff that he had already terminated cannot petitioners tenants thereafter, without waving the fact of termination of tenancy by Baba Dudha Dhari in the year 1981. It is also pleaded by the tenants (petitioners) that since Baba Dudha Dhari had ‘will’ dated registered executed earlier

07.07.1974, to create a charitable in suits as such the respect of the property property stood exempted under section 2 (bb) of U.P. Act No. XIII of 1972. It is further pleaded by in the circumstances Baba Dudha them that Dhari could not have transferred the property through the subsequent ‘will’ dated 13.11.1983, executed in favour of plaintiff Prabhu Das. The petitioners have pleaded that it was Seva Das who was landlord of the property in dispute and that is why the applications under section 30 were filed by the petitioners for depositing the rent under section 30(2) of U.P. Act No. XIII of 1972. Alleging that the trial court has committed error in decreeing the suits and the revisional court in dismissing the revisions, the same are sought to be quashed by the petitioners. It is the writ the plaintiff also pleaded by the petitioners instituted by that suits petitions were barred by time. In the counter affidavits filed on behalf of

#4. the plaintiff/respondent Mahant Prabhu Dass, it is stated that Baba Dhuda Dhari Barfani Ji Maharaj his will bequeathed the property

13.11.1983, favour of his disciple (Mahant Prabhu Dass) who is the plaintiff in the suits. It is admitted that Baba Dhuda Dhari died on 02.08.1994. It is pleaded that notices dated 21.04.1995, were got served on each of the petitioners under section 106 of Transfer of Property Act, 1882, by which the tenancies of the petitioners were terminated. It is further stated in the counter affidavits that after the suits are decreed and affirmed by revisional court, the present writ petitions are not maintainable as there is concurrent finding of fact in the matter. It is also pleaded that no the compromise decree dated one challenged 02.09.1980, passed in suit No. 75 of 1980 as finality it has attained landlordship and ownership of Baba Dhuda Dhari as against Seva Dass. It is also pleaded that the petitioners can not be allowed to raise plea of adverse possession against owner, after admitting their induction as tenants the accommodations in questions. It to whom that since Seva Dass pleaded petitioners state rent was payable, had already conceded in the decree passed in suit No. 75 of 1980, that Baba Dhuda Dhari was owner/landlord of the property, it is not open to say on the part of the petitioners that Baba Dhuda Dhari and thereafter the plaintiff Mahant Prabhu Dass is not their landlord. It is pleaded that the provisions of U.P. Act, XIII of 1972, are not applicable to the property in question. In the rejoinder affidavits filed on behalf of

#5. the petitioners the averment made in the writ petitions are reiterated. of U.P. Urban Buildings 6. Section 2(bb) (Regulation of Letting Rent and Eviction) Act, 1972(U.P. Act, XIII of 1972) provides nothing in the Act shall apply to any building belonging to or vested in a public charitable or In para 5 of the public religious plaint it has been pleaded that the property in question which is known as Triveni Ashram is a institutions. covered by religious public institution section 2(bb) of the aforesaid Act. In reply to para 5 of the plaint it is stated in the written statement filed before the Judge Small Causes Court that contents of para of the plaint are legal. (In other words there is no denial of said fact). Apart from this, in para 17B of written statements trial court, filed before ( present writ petitioners) have defendants pleaded that vide ‘will’ dated 07.07.1974, Baba Dhuda Dhari created a trust of the property in question in which the petitioners were tenants. As such, it is not open to them to say that the provisions of U.P. Act, XIII of 1972 are applicable to the building. It Dhuda Dhari had died in the year 1994. As to the status of the writ petitioners that they were is not disputed that Baba tenants is also not disputed fact. Only this much is stated by the writ petitioners that they were tenants of one, Seva Dass. It has been established on record that in a litigation between and Baba Dhuda Dhari, a Seva Dass compromise decree was passed by the court in suit No. 75 of 1980, which was not challenged by any of the parties to said suit and as such, after Seva Dass conceded title of Baba Dhuda Dhari, his status as owner-cum-landlord cannot the writ petitioners. There be denied by concurrent finding of fact recorded by the courts below that the writ petitioners were tenants of Baba Dhuda Dhari and after his death, they became tenants of his disciple Mahant Prabhu Dass. In the circumstances, this Court is not inclined to interfere with the concurrent finding particularly when the same is based on evidence recorded by the courts below, on record. for the petitioners drew 7. Learned counsel the attention of this Court to Annexure-5 to the writ petitions which is a copy of the objections filed by Baba Dhuda Dhari dated 07.11.1981, before Munsif Haridwar, against the application moved on behalf of the writ petitioners under section 30 (2) of U.P. Act, XIII of 1972, in which it is stated by the objector that the applicants (present writ petitioners) though were tenants terminated. Learned counsel for the writ petitioners argued tenancies have been that after the tenancies stood terminated in the year 1981, there remained no tenancy existing as such it cannot be said that tenancies of the terminated vide notices writ petitioners were (copy Annexure-2 dated 24.01.1995, petition to the writ petition) served on the writ petitioners under section 106 of Transfer of Property Act, 1882, by the plaintiff/respondent. to mention is pertinent Here proceedings under section 30 of U.P. Act, XII of 1972 are summary in nature. Sub Section (2) of section 30 of U.P. Act, XIII of 1972 provides that where bona fide doubt or dispute has arisen as to the person who is entitled to receive rent in respect of any building, the tenant may deposit the rent until such doubt is removed by a competent petitioners it is not shown that on the objections court. On behalf the writ against the Baba Dhuda Dhari applications of the writ petitioners for depositing the rent any finding was recorded by the court, as to the determination of the tenancy. Rather, during arguments, it is conceded by the learned for the writ petitioners that the writ counsel petitioners were allowed under sub section (2) of section 30 and they deposited rent till 15.06.1982 that being so, it is to deposit though evident Dhuda Dhari had pleaded that the tenancies of the writ petitioners were determined but the objections Baba same was not accepted that’s why the writ petitioners were allowed to deposit the rent section (2) by concerned authority.

#8. Next argument advanced on behalf of the writ petitioners relates to limitation. Attention of this Court is drawn on behalf of the petitioners to Article 67 contained Limitation Act, 1963, which provides that the the Schedule of suit by landlord to recover possession from a instituted within a period of tenant must be twelve (12) years. It is pleaded on behalf of the writ petitioners that since in the objections filed it was alleged the year 1981, tenancies of the writ petitioners were determined as such in 1993, twelve (12) years period had already expired, and the suit filed by the present plaintiff/respondent year 1995, was barred by limitation. I have

#9. carefully discussed allegation of determination of tenancies was not accepted and petitioners were allowed to deposit the rent under section 30 of U.P. Act, XIII of Article The provision contained

#1972. 67 of the Schedule of the Limitation Act, 1963, provides that period of twelve (12) years would start from the date of termination of the tenancy. It is conceded that the writ petitioners continued to deposit the rent under section 30 of the U.P. Act, 13 of 1972, subsequent to the year1981. Therefore, it is not open for the writ petitioners to say that the period of the twelve (12) years stood expired in the year1993. Issuing notices to in the year 1995, under tenancies the writ petitioners section 106 of transfer of Property Act, 1882, itself indicates waiver of the determination of the if any alleged earlier. Therefore, this the argument Court advanced on behalf of the writ petitioners in this regard. This view gets support from the case in Sardar finds no substance decided by Allahabad High Court Tarvinder Singh vs. Sardar Ranjit Singh 1998 (4) A.W.C. 814.

#10. Section 116 of Transfer of Property Act, 1882, contains principle of holding over and a property remained provides possession after determination of lease and the lesser accepts rent, or otherwise assents to his continuing possession, agreement to the contrary lease would continue from year to year or month to month as the case absence may be.

#11. Section 116 of Indian Evidence Act, 1872, which contains Principle of Estoppel, provides that no tenant of immovable property shall deny tenancy, had no title in the immovable property. the beginning of landlord, at I agree with the view taken by the Allahabad High Court in Shri Tej Bhan Madan vs. IInd Additional District Judge, Allahabad Rent Cases 1980 page 502, in which it is mentioned that the estoppel applies not only as against the landlord with whom the tenancy began but also the subsequent landlords, who entered into the shoes of the original landlord as successor in interest in the property.

#12. Referring to the case of Ram Avtar Goel vs. (2) Allahabad Dr. Jagannath Gupta 2001 Rent Cases page 518, it is argued on behalf of petitioners 24.01.1995, plaintiff/respondent has mentioned that there was default in payment of rent on the part of the writ petitioners, and the tenancies the notice the suit on terminated, but the courts below have decreed defendants had denied the title of the plaintiff. In this connection attention of this Court drawn to section 20 of U.P Act, XIII of 1972, the ground which provides the grounds on which suit for eviction can be instituted by the the basis of the matter raised I have examined landlord. before this Court. Firstly provisions of section 20 of U.P. Act, XIII of 1972, are inapplicable to the is a case of charitable present case as institution. The case of Ram Avtar Gupta (supra) was the one to which the provisions of U.P. Act, 13 of 1972, were applicable. In said case the Allahabad High Court had taken the view that the decree of eviction should be passed on the ground on which the tenancy is terminated by the landlord. In the present case there is no applicability of the aforesaid Act determination of tenancies is under section 106 of Transfer of Property Act, 1882. Though the default is alleged in the notices but the tenancy could have been terminated even without any such ground. Even if the title is denied in replies to the notices, and in the written statements it constitutes a sufficient ground to attract rather ejectment of the defendant /tenant.

#13. On behalf of the petitioners attention of this Court is drawn to the case of J.J. Lal vs. M.R. Murali, 2002(20) LCD 1235, in which it has been observed that the tenant is not estopped from denying title of the landlord if it comes to an end, subsequent to creation of tenancy nor is he estopped from questioning the derivated title of a transferee to his landlord. Admittedly the petitioners themselves continued to deposit rent under section 30 of the Act, even after 1981, as such they cannot say that the tenancies stood earlier terminated, particularly termination of tenancies are made by notices which amounts waiver of the earlier notices, if any.

#14. For the reasons as discussed above this Court finds no error of law committed by the courts impugned Accordingly all petition No. 1209 (MS) 2003, writ petition No. the seven writ petitions orders. (writ (MS) 1210 (MS) 2003, writ petition No. 1211 2003, writ petition No. 1212 (MS) 2003, writ petition No. 1213 (MS) 2003, writ petition No. 1214 (MS) 2003 and writ petition No. 1171 (MS) 2003) are liable to be dismissed. The same are dismissed. The petitioners month’s time from today to vacate the premises and hand over the possession to the landlord/ are allowed failing which the decree passed by respondent the trial court may be got executed. No order as to costs. (Prafulla C. Pant, J.) Dt:10.05.2010