S.P Kurdukar, J.— Civil Appeal No. 4484 of 1991 is filed by the appellant (plaintiff) challenging the legality and correctness of the judgment and order dated 21-12-1990 passed by the High Court in Appeal No. 122 of 1980. The dispute in this appeal is confined to a tenanted premises situated in Mattuplayam Road, Coimbatore wherein the appellant is running a hotel under the name and style “Ganesh Lodge-Ganesh Bhavan”. The brief facts necessary for disposal of this appeal may be summarised as under:
Admittedly the property in dispute was owned and possessed by the mother of Dr Mrs Thangam Vergeese (Respondent 15 herein). Narayana Rao Kubevoor (Respondent 2 herein) took the suit premises as a tenant from the mother of Dr Mrs Thangam Vergeese and started running hotel business therein. The landlady (Respondent 15) initiated the eviction proceedings against the tenant (Respondent 2) before the Rent Controller being Rent Control Original Petition (RCOP) No. 250 of 1972 on the ground that the tenant had sub-let the premises without obtaining her consent. This eviction petition was filed only against the tenant (Respondent 2). The appellant made an application for being impleaded as a party since he was vitally concerned with the conduct of the proceeding and the result thereof. This application was, however, rejected by the Rent Controller and resultantly the appellant was not impleaded as a party to RCOP No. 250 of 1972.
2. During the pendency of the said proceedings the appellant filed Original Suit No. 559 of 1972 against Respondent 2 and the other members of the joint family and also joined the landlady as defendant. This was a suit filed by the appellant for partition and accounts. The suit property was also included in the said suit. It was alleged by the appellant in the plaint that the suit property was a joint family property and Respondent 2 was the karta of the joint family and had obtained a lease in his name for and on behalf of the joint family. Respondent 2 denied that the suit property was a joint family property and pleaded that the tenancy was in his name in which other members of the joint family had no concern. During the pendency of Original Suit No. 559 of 1972 RCOP No. 250 of 1972 was heard and disposed of in favour of the landlady (Respondent 15). It is true that Respondent 2 filed the consent statement and suffered a decree for eviction. This decree is final between the parties. Sometime in 1973 Original Suit No. 119 of 1973 came to be filed by Respondent 2 in the civil court for recovery of arrears of rent for the past and future and possession of leasehold articles valued at Rs 15,000 from the appellant. This suit was on the premise that the appellant is a sub-lessee.
3. Another suit bearing Original Suit No. 212 of 1973 was filed by the appellant on 23-3-1973 in the civil court for declaration of his leasehold right in the tenanted premises and hotel business and for restraining the landlady from executing the eviction order passed in RCOP No. 250 of 1972. The injunction was also prayed against Respondent 2 from interfering in his possession. Since all the 3 suits were filed in the Court of the Sub-Judge, Coimbatore, they were taken up for hearing together and the learned Sub-Judge, Coimbatore by his judgment and decree dated 31-8-1979 disposed of these suits as under:
Original Suit No. 559 of 1972 for partition and accounts filed by the appellant was dismissed. Original Suit No. 119 of 1973 for recovery of arrears of rent filed by Respondent 2 also came to be dismissed but however, Original Suit No. 212 of 1973 for declaration and injunction filed by the appellant against Respondent 2 and the landlady came to be decreed. Aggrieved by the common judgment and decree passed by the Sub-Judge, Coimbatore the appellant filed Appeal No. 1099 of 1979 (arising out of OS No. 559 of 1972); Respondent 2 filed Appeal No. 958 of 1985 arising out of the judgment and decree passed in OS No. 119 of 1973. The landlady also filed Appeal No. 122 of 1980 challenging the legality and correctness of the decree passed by the High Court in OS No. 212 of 1973. All these appeals were filed in the High Court of Madras.
4. These appeals were heard by the Division Bench of the High Court of Madras who by its judgment and decree dated 21-12-1990 dismissed Appeals Nos. 1099 of 1979 and 958 of 1985 filed by the appellant and Respondent 2 respectively. However, the Division Bench allowed Appeal No. 122 of 1980 filed by the landlady and consequently dismissed Original Suit No. 212 of 1973 filed by the appellant. All these appeals were disposed of by a common judgment.
5. The net result, therefore, is that the appellant's Original Suit No. 559 of 1972 and Original Suit No. 212 of 1973 stood dismissed. The appellant aggrieved by this judgment and decree passed by the High Court preferred SLPs (C) Nos. 6760-61 of 1991. This Court vide its order dated 26-4-1991 dismissed SLP (C) No. 6760 of 1991 (arising out of Original Suit No. 559 of 1972). This Court granted leave in SLP (C) No. 6761 of 1991 arising out of Appeal No. 122 of 1980 on the file of the High Court (arising out of Suit No. 212 of 1973). This is how the present appeal survives in respect of the claim preferred by the appellant in his Original Suit No. 212 of 1973.
6. The High Court in its exhaustive judgment has dealt with all the contentions raised by the appellant and come to the conclusion that the tenancy in the name of Respondent 2, the elder brother of the appellant was not for and on behalf of the joint family but he had obtained the said lease for his own business with which the appellant had no concern. The High Court further held that the eviction decree suffered by Respondent 2 (original tenant) was neither collusive nor obtained by fraud by the landlady. The appellant had failed to produce reliable and convincing evidence to hold that the eviction order in RCOP No. 250 of 1972 was either collusive or fraudulent. The High Court further found that Respondent 2 (original tenant) had sub-let the suit property to the appellant without the consent of the landlady and, therefore, the decree cannot be declared as collusive or fraudulent. The High Court allowed Appeal No. 122 of 1980 filed by the landlady.
7. Mr K. Ram Kumar, learned advocate appearing in support of this appeal strenuously urged that the High Court had totally misread the evidence on record and resultantly recorded an unsustainable finding as regards the tenancy rights possessed by the joint family. He also urged that mere reading of an order passed in RCOP No. 250 of 1972, it is ex facie clear that Respondent 2 (tenant) had consented to the decree for eviction being passed against him and in view thereof no further evidence was required to prove that the said eviction order was the outcome of collusive and fraudulent conduct of Respondent 2. As against this Mr V.R Reddy, learned Senior Counsel for the landlady supported the judgment passed by the High Court.
8. We have gone through the judgments of the courts below and also perused the material evidence on record. We are unable to persuade ourselves to accept the contentions raised on behalf of the appellant. Once it is found that the tenancy was exclusively in the name of Respondent 2 and it was not a tenancy for and on behalf of the joint family, in our opinion, this being a finding of fact cannot be assailed in the present appeal. In the circumstances the appellant was rightly held to be a sub-tenant without the consent of the landlady and consequently such a sub-tenancy was rendered illegal. If this be so the order of eviction passed in RCOP No. 250 of 1972 cannot be assailed by the appellant on any ground.
9. In the result there is no merit in this appeal and the same is dismissed. Parties are directed to bear their own costs.