Second appeal challenging dismissal of eviction suit. HC held appellant failed to prove landlord-tenant relationship; preliminary issue was valid; allegations regarding Will influence did not justify disturbing findings. Appeal dismissed.
The second appeal was dismissed, upholding the judgment and decree below.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 251/2017
----Appellants
Versus
Ranjeet Singh Kumpawat Advocate, Resident Of Quarter No. 7, Plot No. 485, 4Th, B Road, Sardarpura, Jodhpur.
----Respondent
| For Appellant(s) | : | Mr. Narendra Thanvi. Mr. Mahendra Thanvi. |
|---|---|---|
| For Respondent(s) | : | Mr. N.M. Lodha, Sr. Advocate assisted byMr. V.D. Dadhich. |
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
16/02/2021
This appeal is directed against the judgment and decree dated 24.08.2012 passed by Additional Civil Judge (Junior Division), No.4, Jodhpur and judgment and decree dated 24.05.2017 passed by Additional District Judge No.5, Jodhpur Metro, whereby, the suit and appeal filed by the appellants have been dismissed.
The suit for eviction and arrears of rent was filed by plaintiffs - Krishna Kumar and Laxmi Kumar, sons of Brij Mohan Lal, however, Laxmi Kumar was given in adoption to one Makkhan Lal inter-alia with the submissions that a bungalow and certain quarters were situated at 4th B Road, Sardarpura, Jodhpur,
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wherein, the defendant was in possession of quarter No.7 as tenant @ Rs.300 per month.
The property in question belonged to late Brij Mohan Lal, regarding which during his life time one suit was filed by Raj Kumar against deceased Brij Mohan Lal before the District Judge, Jodhpur on 07.04.1978. During pendency of said suit Brij Mohan Lal came in contact with defendant – an Advocate, who started giving advice pertaining to the said litigation, he filed his Vakalatnama in the said case which led to the creation of the relationship.
Averments were made that the suit property i.e. quarter No.7, was in possession of one Bhugro Mal against whom suit for eviction was filed which was vacated in June 1983, whereafter, premises were let out to the defendant, the tenancy was oral regarding which no documents were executed or receipt was issued.
It was claimed that the accounts of rent and litigation expenses were kept oral only, certain other litigations were initiated pertaining to the property, wherein, also the defendant filed Vakalatnama on behalf of late Brij Mohan Lal.
It was claimed that on account of ill health of Late Brij Mohan Lal, the defendant advised him to execute a Will based on which, 7 stamps of Rs.5/- each (non-judicial) were purchased on 05.09.1998 by plaintiff No.1 and were handed over to the defendant, who prepared 7 similar Wills and got the same signed by Brij Mohan Lal without his reading them.
The signatures were got on the Wills at house only. The counsel Basant Raj Mehta and Notary V.D. Purohit had come with him. Basant Raj Mehta had identified. It was claimed that the
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defendant kept all the 7 Wills with him and after one month, informed that two witnesses were required to sign the same, based on which, he got signatures of his son and one Vinayak Rai, his friend on the Will.
Thereafter, the Wills were kept with defendant. Brij Mohan Lal died on 11.11.1999 and for the first time in December 1999, the Will was produced indicating that the defendant was owner of the disputed quarter.
It was claimed that the Will was void against the plaintiffs.
It was further indicated that the indications made in the Will pertaining to the agreement to sale were also incorrect.
Ultimately following reliefs were claimed in the suit:-
Written statement was filed by the defendant denying the landlord-tenant relationship between the parties and indicating that the deceased Brij Mohan Lal was being advised by other Senior advocates and the applicant was engaged only for the purpose of taking dates.
Whereafter, from time to time other advocates were also appointed in the litigation regarding which the averments were made in the plaint.
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It was denied that in 1983 after the eviction of Bhugro Mal from the disputed quarter, the same was let out to the defendant. It was indicated that legal representatives of Bhugro Mal vacated the premises on 30.07.1984, after the same being vacated, a part of it was let out to Purshotam and another part was let out to Govind Singh regarding which the receipts have been produced in the suit filed by Raj Kumar.
It was also indicated that the defendant till the year 1985 was staying at some other place, sisters of the plaintiff filed suit for partition in which also the property was not included as the same had already been transferred. It was further indicated that the plaintiffs themselves are beneficiaries of the Will, the allegations pertaining to the defendant actively participating in the execution of the Will and rather getting the same executed were specifically denied.
Ultimately it was prayed that as there was no tenant-landlord relationship, the suit be dismissed.
After the pleadings were complete, the trial court by its order 10.11.2005, while deciding the application filed for determination of provisional rent under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, looking to the averments made in the pleadings, framed a preliminary issue as under:-
“vk;k oknxzLr ifjlj ds fy;s oknhx.k ,oa
izfroknh ds e/; ekfyd edku o fdjk;snkj ds laca/k LFkkfir gS \”
On behalf of the plaintiffs one witness i.e. plaintiff No.1 was examined and five documents were exhibited.
On behalf of the defendant he alone was examined and exhibited 28 documents.
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After hearing the parties, the trial court came to the conclusion that the plaintiff had failed to establish landlord-tenant relationship between the parties and dismissed the suit.
While dealing with the said aspect, the trial court, essentially relied on the fact that the Will (Ex.1) was relied on by the plaintiff, which contained the bequest of the quarter in favour of the defendant and the Will was repeatedly being used by the plaintiffs. Further the aspect of letting out the property to the defendant, was not established.
Feeling aggrieved the appellant filed first appeal.
The first appellate court, after again scrutinizing the entire evidence available on record, reiterated the finding that the landlord – tenant relationship was not established and as no relief was claimed with regard to the Will in question, negated the various submissions made in this regard by the plaintiffs and consequently dismissed the appeal.
Learned counsel for the appellants vehemently submitted that the both the courts below were not justified in dismissing the suit and appeal. Submissions were made that it was established on record that the defendant was representing the deceased Brij Mohan Lal in various litigations and was in a position to influence in executing the Will in his favour and, therefore, the defense raised based on the Will in favour of the said defendant could not have been accepted by the courts below.
Further submissions were made that the plaintiffs have exhibited Ex. 2 to 5 which established the relationship of client and advocate between the father of the plaintiffs and the defendant, which have not been dealt with by the trial court and
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the first appellate court and, therefore, on that count also the judgments impugned are vitiated.
Attempts were made by learned counsel to contend that the part of the Will where bequest has been made in favour of the defendant, is outcome of the influence exercised by the defendant and that to the said extent the Will is surrounded by suspicious circumstances and, therefore, the suit was liable to be decreed and both the Courts fell in error in dismissing the suit and the appeal.
Feeble submissions were made that the trial court should not have decided the suit based on preliminary issue and it should have decided the same in entirety.
Learned counsel appearing for the respondent made submissions that the both the courts below after thoroughly scrutinizing the evidence oral and documentary which came on record has recorded findings of fact pertaining to lack of landlordtenant relationship between the parties and the same does not give rise to any substantial question of law and, therefore, the appeal deserves to be dismissed.
Submissions were made that the trial court was justified in framing preliminary issue pertaining to landlord-tenant relationship looking to the nature of averments made in the plaint as well as the written statement and no fault can be found qua deciding the suit based on the finding on the preliminary issue.
Further submissions were made that the suit was based on tenant-landlord relationship and the plaintiff has miserably failed to prove the said relationship qua the property in question and as such the suit has rightly been dismissed by the trial court and the decree upheld by the first appellate court.
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It was also submitted that the Will (Ex.1) dealt with the entire properties of deceased- Brij Mohan Lal of which the plaintiffs No.1 and 2 were major beneficiaries, they themselves relied on the said Will in several litigations and as such now to claim that the Will to the extent of a portion of it was surrounded by suspicious circumstances is wholly incorrect.
Submissions were made that admittedly, the attesting witnesses to the Will were son of plaintiff No.1 and his close friend and, therefore, the allegations that the Will to the extent of the defendant was outcome of influence on account of the client – Advocate relationship are preposterous.
It was submitted that the entire transaction which happened between Brij Mohan Lal and the defendant is reflected in the Will and, therefore, there was no question of the respondent in any manner using his purported influence on deceased – Brij Mohan Lal. It was submitted that the appeal deserves to be dismissed with costs.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
So far as the plea regarding the trial court deciding the suit, based on preliminary issue, is concerned, a perusal of the record indicates that the preliminary issue was framed on 10.11.2005, whereafter, the parties led evidence on the said issue and ultimately, the trial court decided the suit on 24.08.2012. The appellant had sufficient time to question the validity of the order framing preliminary issue and directing the parties to lead evidence on the same. However, no steps were taken in this regard.
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Besides the above looking at the nature of relief claimed and the defense raised by the defendant, it was apparent that the landlord-tenant relationship was at the heart of the suit, which was required to be first established, for the court to proceed further in the matter and, therefore, framing of preliminary issue cannot be faulted.
A perusal of the plaint though indicates that the plaintiffs have made a lot of hue and cry pertaining to the bequest made in the Will (Ex.1) in favour of the defendant, however, in the relief clause of the plaint, the relief of eviction has been claimed only as a tenant against the defendant. No relief, whatsoever, has been claimed qua either the portion of the Will, wherein, bequest was made to the defendant and/or the agreement to sale regarding which reference was made in the Will.
In view thereof, the entire submissions sought to be made in the plaint and evidence sought to be led alleging exercise of influence by the defendant against deceased – Brij Mohan Lal without any consequential relief are, therefore, wholly meaningless.
The entire evidence led, despite the preliminary issue confining it to landlord-tenant relationship, the plaintiffs except for claiming that though the rent was fixed at Rs.300/- per month, further attempted to allege that the same was got adjusted against the litigation expenses (fees) of the defendant, however, failed to establish the same in any manner.
No material, whatsoever, was produced regarding the relationship of landlord and tenant between the parties besides the fact that the defendant was able to establish that the preliminary facts alleged in the plaint regarding letting out the
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property in the year 1983 were incorrect based on documents, which were exhibited pertaining to the point of time of eviction of Bhugro Mal and subsequent letting of the property to one Purshotam and Govind Singh till the year 1985 and that the defendant was resident of some other place till that point of time.
In view thereof, the finding of the trial court and the first appellate court regarding failure with regard to the landlord-tenant relationship, cannot be faulted on any ground.
However, as the allegations made in the plaint on first blush appeared serious, some explanation on part of the defendant was required.
A bare look at the Will, which contains the bequest in favour of the defendant, reads as under:-
“esjs bl IyksV ua0 485 ij esjk DokVj ua0 7 fuEu iM+kSl dk vk;k gqvk gS %&
if”pe esa % 22 QhV dk jkLrk
iwoZ esa % esjs caxys dk fgLlk
mRrj esa % esjs IyksV ua0 485 dk Hkkx
nf{k.k esa % esjh tk;nkn Fkh tks eSaus csp nh gS eSaus vius Lo;a dh vksj ls o vius iq= d’.kdqekj dh vksj ls mlds eq[R;kj dh gSfl;r ls bl DokVZj ua0 7 dks 35]000@& esa cspus dk bdjkj Jh j.kthrflag dqEikor ds lkFk fnukad 4-7-83 dks fd;k Fkk o mlh jkst Jh j.kthrflag th us eq>s lkbZ ds :i;s 10]000@& fn;s Fks o bl bdjkj cspku dh vkaf”kd ikyuk esa eSaus bl DokVZj ua0 7 dk okLrfod o ekfydkuk dCtk Jh j.kthrflag dqEikor dks lkSai fn;k FkkA blds ckn Jh j.kthrflag dqEikor us fnukad 20-4-85 dks cdk;k pqdrh jde eq>s vnk dj nhA pwafd Jh jktdqekj us bl DokVZj ds eqrkfyd U;k;ky; esa nkok dj j[kk Fkk rRi”pkr~ izFke vihy py jgh Fkh vc mPp U;k;ky; esa vihy dj nh blfy;s eSa bldk cspku Jh j.kthrflag dqEikor ds gd esa ugha dj ldkA mPp U;k;ky; ls Qslyk gksus esa bZ”oj tkus fdruk le; yxsxk o rc rd eSa cspku djs ds fy;s ftUnk jgwa ;k ughaA blfy;s esjk ;g uSfrd drZO; curk gS fd eSa bl DokVZj ua0 7 dh olh;r Jh j.kthrflag dqEikor ds i{k esa dj nwa rkfd esjh eR;q ds ckn bl olh;r dh :g ls Jh j.kthrflag dqEikor
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ekfyd gks tk;A blfy;s bl DokVZj ua- 7 dh olh;r eSa Jh j.kthrflag dqEikor ds i{k esa djrk gwaA”
A bare look at the above bequest indicates that an agreement to sale dated 04.07.1983 was executed between Brij Mohan Lal and the defendant and as a litigation filed by Raj Kumar reference whereof, was given by the plaintiffs in their suit, was pending and deceased Brij Mohan Lal was not able to execute the sale deed, he made the said bequest qua quarter No.7 in favour of the defendant.
Further its an admitted case that the plaintiff No.1 himself had purchased 7 stamps and it is indicated in the Will that 7 copies of the Will were made as there were 7 beneficiaries, 6 children i.e. 2 sons and 4 daughters and 7th was the defendant and, therefore, the said chain of evidence supporting the plea raised by the defendant is apparently complete and it cannot be said by any stretch of imagination that the defendant, came in possession under any other status as claimed by the plaintiff.
In so far as the plea raised by the learned counsel for the appellant regarding the two courts not dealing with documents Exhibits 2 to 5 is concerned, the courts have dealt with Exhibits 2 & 3, however, irrespective of the fact that the defendant was counsel in certain cases, by itself cannot prove the case of the plaintiffs that he was tenant in the quarter in question. As already noticed, despite making allegations of influence against the defendant, the plaintiffs could not gather enough courage to seek any relief qua the bequest made in favour of the defendant in the Will executed by their father.
Besides the above, the plaintiff in his cross-examination admitted signatures of his father on the agreement to sale relied
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on by the defendant in continuation of the Will, as such the plea sought to be raised has absolutely no substance.
In view of the above discussion, the concurrent findings of fact recorded by the two courts below cannot be said to be perverse on any count so as to give rise to any substantial question of law.
The appeal has no substance, the same is, therefore,
dismissed.
(ARUN BHANSALI),J
62-pradeep/-
3 issues framed by the court
Whether the dismissal of the eviction suit was justified due to failure to prove landlord-tenant relationship.
Whether setting aside the trial court’s decision based on a preliminary issue was warranted.
Whether the allegations of influence regarding the Will created a substantial question of law.
Legal Representatives Of Dr. Krishna Kumar @ Jyoti Prakash S/o Late Shri Brij Mohan Lal Bhargava
Dr. Laxmi Kumar Bhargava Adopted Son Of Shri Makkhan Lal Bhargava
Ranjeet Singh Kumpawat
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
