Judgment:
S.P. Pathak, J.
1. This second appeal under Section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 17th February, 1994 passed by the Additional Civil Judge, Jhunjhunu allowing Civil Appeal No. 21/1991 (10/1991) against the judgment and decree dated 29th January, 1991 passed by the Munisff & Judicial Magistrate, First Class, Navalgarh whereby dismissing Civil Sut No. 66/1979.
2. Briefly stated, the facts are that the plaintiff- respondent filed a suit for ejectment on 20.12.1979 against Banshidhar who died during the pendency of the suit on the ground of default and necessity for his son. It was, inter-alia, averred in the plaint that the suit shop was let-out on rent @ Rs. 16/- per month and a rent-note was executed on 1.9.1976
3. The defendant in his written statement denied the submissions made in the plaint and it was, inter-alia, averred that regular payments were made and no default was committed. It was also averred that the suit was filed to harass and there was no personal necessity accrued to the plaintiff. It was also averred that in fact ancestors of the plaintiffs Ram Buxji constructed a temple of Laxmi Nathji along with a small house and nine shops which were given to temple and out of the income of the shops the management of the temple was being done. It was also averred that the plaintiff had only 1/4th share in the alleged shop and the suit was liable to be dismissed on account of non-joinder of parties and non-joinder of Murti Mandir in the suit.
4. The learned trial court framed in all ten issues and permitted the parties to lead their evidence and dismissed the suit vide judgment and decree dated 29.1.1991. Issue Nos. 6, 8, 9 and 10 were decided in favour of plaintiff and against the defendant as no dispute was raised in relation to those issues. Issue Nos. 2 and 3 in relation to personal bonafide need and comparative hardship were decided against the plaintiff. In relation to default, issue No. 4 was framed and it was decided in favour of defendant. Issue No. 5 was the main issue in the case i.e. in relation to denial of title of the landlord. This issue was decided in favour of the defendant-appellant and the suit was
5. I have heard learned Counsel for both sides and carefully perused the impugned judgment and decree passed by the courts below and have also perused the material available on record.
6. The appeal was admitted on 23.5.1996 on the following substantial questions of law:
1. Whether from a bare reading of the written statement as a whole it can be said that a plea of denial of title was made out?
2. Whether the so-called plea of denial of title could be used as a ground of eviction in the same suit?
3. Whether the appeal had not abated due to the deceased-plaintiff Shri Ladu Ram?
7. In relation to question No. 3, it has been informed that the legal heirs of deceased plaintiff were brought on record under the orders of the court and this position of fact has not been controverted by the learned Counsel for the respondent. Thus, it appears that two substantial questions of law are to be answered in this second appeal.
8. Learned Counsel for the appellant submitted that in the instant case plaintiff has not made any averments in relation to denial of title by the tenant-appellant and further nothing has been stated by him in his statement, therefore, the appellate court committed illegality in deciding issue No. 5 in favour of the plaintiff. It is also contended that the plaintiff's suit was never amended and in case the plaintiff's suit was to be decreed on the ground of denial of title then the plaintiff was required to move an application for making necessary amendment in the plaint which has not been done, therefore, the appellate court committed illegality. It is also contended that a reading of the written statement would reveal that there has not been denial of title by the defendant-appellant, therefore, finding recorded by the appellate court in relation to issue No. 5 requires to be set aside and the suit of the plaintiff requires to be dismissed.
9. On the other hand, it has been contended that after 76th amendment in the Code of Civil Procedure in the second appeal, the court is required to formulate substantial questions of law and at the time of hearing, the parties are required to address the court on those substantial questions of law. It is contended that of course the court shall have all powers to hear the appeal on any other substantial question of law even if not formulated. It is contended that in the present appeal there does not exist any substantial question of law because as regards reading of the pleadings of the parties and denial of title are concerned, that is in fact a mixed question of law. It is contended that no rider has been put under Section 100 CPC that the findings should only be concurrent in nature which cannot be disturbed in second appeal. It is contended that in the instant case, the appellate court's finding on issue No. 5 is in accordance with law, therefore, the same is not required to be disturbed for the reason that it is a finding of fact and law as well. It is contended that the authorities cited by the learned Now, I propose to examine the questions framed above.
10. Since, question Nos. 1 and 2 are inter-related to each other, therefore, they are being decided together.
11. It is to be seen that the plaintiff has in para 2 made the description of property and stated that the property was on rent. Para 2 of the plaint was to the effect that the disputed shop was on tenancy @ Rs. 16/-per month and a rent-note was also executed on 1.9.1976 for a period of 11 months. The tenancy was to be terminated after serving one month notice.
12. In reply to para 2 the defendant appellant has stated that the contents of para 2 of the plaint are wrong and, therefore, denied. It is further stated that the shop in question
13. A perusal of para 2 of the plaint and reply thereto nowhere leaves any manner of doubt that the defendant- appellant denied the title of the suit shop. The entire reading of the written statement further go to show that it has been stated that the shop was of deity and other persons were also cosharers of the property in question, they were not made parties and the suit was not maintainable. The learned appellate court came to the conclusion that on reading of the averments made in the written statement it was amply proved that the title in relation to the suit shop was denied, therefore, the decree of eviction was liable to be passed. This is a finding of fact.
14. The decision in the case of J.J. Lal (P) Ltd. (supra) relied upon by the learned Counsel in my opinion is of no help to the appellant for the reason that in the above case landlord filed suit for eviction against the defendant appellant before the Rent Controller under the provisions of Tamil Nadu (Buildings) Lease and Rent Control) Act, 1960 (in short, 'the Tamil Nadu Act'). The ground taken was that defendant did not pay rent of the premises for several months. In the written statement filed, default was denied. It was also stated that there was dispute in relation to quantum of arrears of rent. Thus, it appears that the
15. In the case of Ram Prakash Gupta (supra), the Hon'ble Apex Court while considering the provisions of Order 7 Rule 11(d) CPC has observed that it is not proper to reject the plaint by reading only few lines or passage from here and there.
16. In the case of Syed Dastagir (supra), the Hon'ble Apex Court while considering the provisions of Order 6 Rule 1 CPC and interpreting the scope of above provision, has held that to gather true spirit behind a plea, it should be read as a whole. It has also been observed that the pleadings are required to be gone into as a whole.
17. There cannot be two opinion about the principles laid down in the above authorities by the Hon'ble Apex Court but as regards decision in the case of J.J. Lal (supra) is concerned, it is on different facts and arising in different circumstances as for the first time at appellate stage two points were framed and in the application moved, it was stated that the landlord was no more a landlord. The application was moved for the reason that the Municipal Corporation had issued a notice according to which the landlord had lost the right in the suit property.
18. In the present matter, factual position is different. It is the written statement where there is denial of title and several other reasons have been mentioned while opposing the decree of eviction but then there is no ambiguity available when para 2 of the plaint along with reply thereto is seen wherein a complete denial of title has been made. In the similar circumstances, the Hon'ble Apex Court in the case of Majati Subbarao (supra) has in para 6 observed as under:
Though normally the respondent should have applied for amendment of his plaint and incorporated the ground of denial of title therein in order to get relief on the ground which had arisen after the eviction petition was filed, but in this case the trial court, namely, the Rent Controller, framed an issue as to whether the tenant's denial of the landlord's title to the schedule property including the said premises was bonafide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bonafide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.
19. In the above case, in the written statement title was denied and subsequently an argument was raised as has been raised in the present case that the decree of eviction could not be passed against the tenant on the ground of default as nothing was stated in the plaint. The Hon'ble Apex Court rejected the above argument for the reason that the parties went to trial on a clear issue framed, therefore, there was no need to frame additional issue. It has also been observed that normally in order to get relief in eviction matter the ground is to be stated but during the course of trial specific issue seeking eviction is framed and parties went on trial on the issue framed, therefore, subsequently to raise a contention that decree could not be passed unless there is a pleading to that effect particularly denial of title.
20. After carefully examining the law laid down by the Hon'ble Apex Court in the authorities cited before me, I find that in the facts and circumstances of the present case the principles laid down in Majati Subbarao (supra) case are applicable, therefore, finding that on other issue no challenge was put by the appellant in the trial court as well as in the appellate court and in the appellate court challenge was made to the findings recorded on issue No. 5 and the appellate court decided issue No. 5 regarding denial of title in favour of land lord. The finding of appellate court is based on proper appreciation of evidence is a finding of fact.
21. It is further to be seen that Section 13(1)(f) of the Rent Act is slightly different than the Tamil Nadu Act because in the Tamil Nadu Act it is also the requirement that denial of title should be bonafide which is not available in the Rajasthan Rent Act. In the Rent Act of Rajasthan, there appears two requirements, namely the tenant has renounced his character as such, and (2) or denied the title of landlord and the letter has not waived his right or condoned the conduct of the tenant. In the instant case, the landlord has not waived his right, therefore, in view of the provisions contained in Section 13(1)(f) in the Rent Act, if the plaintiff has proved this requirement of law where title has been denied then he could obtain a decree of eviction. The learned appellate court has discussed the matter in this regard in detail. 22. As has been discussed here-in-above, answer to the questions framed is that in the facts and circumstances of the case and on perusal of the written statement as a whole and particularly para 2 thereof, it stands amply proved that the title of the plaintiff was denied and on the basis of denial of title ground of eviction was available in the same suit though was not pleaded in the plaint but in the written statement ground was taken and parties led evidence in view of decision rendered in the case of Majati Subbarao (supra), this appeal is liable to be dismissed.
23. In the result, this second appeal is dismissed.