SB CIVIL SECOND APPEAL NO.31/1999 Smt. Umrao Bai (since deceased) through her legal representatives Laxmi Narain & Others Date of Order ::::::: 8.08.2016 HON'BLE MR. JUSTICE PRAKASH GUPTA Mr. RK Agarwal, Sr. Advocate assisted by Ms. Sonu Agarwal for the defendant appellants.

Mr. Sanjay Yadav for the plaintiff-respondent.

By the Court:- The instant civil second appeal under Section 100 CPC filed by the defendant appellant Smt. Umrao Bai is directed against the judgment and decree dated 4th December, 1998 passed by the learned Additional District Judge No.7, Jaipur City, Jaipur (for short `the learned first appellate court') in Civil Regular Appeal No.32/1996 whereby he has dismissed the appeal filed by the defendant-appellant Smt. Umrao Bai preferred against the judgment and decree dated 1st June, 1996 passed by the learned Additional Civil Judge (Jr.Div.) No.3, Jaipur City, Jaipur (for short `the learned trial court') in civil suit No.470/1974 decreeing the suit of the plaintiff respondent No.1 for eviction of the defendant appellant from the suit premises.

The facts leading to this appeal, in short, are that Shri Shyam Lal, (hereinafter referred to as `the original plaintiff') instituted a civil suit against Shri Chouthmal (hereinafter referred to as `the original defendant') pleading therein that the original plaintiff let out the suit shop situated at Johari Bazar, Jaipur City to the original defendant for 2the purpose of carrying on business. The original defendant failed to pay rent for a period of 27 months, sublet the suit premises, materially altered the suit shop and further that the original plaintiff required the suit premises for his sons Laxminarain and Babu Lal for carrying on business of Gem Traders. On the basis of the pleadings stated in the plaint, the original plaintiff sought for a decree of eviction against the original defendant as also for recovery of arrears of rent.

The original defendant filed written statement admitting the tenancy but he denied the averments made in the plaint as regards the default, subletting, material alteration and bonafide requirement and all other allegations made against him in the plaint and prayed for dismissal of the suit.

During pendency of the suit, the original defendant Chouthmal died on 23rd February, 1983 and the original plaintiff Shyamlal also died on 1st April, 1983.

Shri Laxminarain, respondent No.1 being one of the sons and legal representatives of deceased Shyam Lal, got himself substituted as a plaintiff in place of original plaintiff. Other legal representatives of the original plaintiff Shyamlal were also arrayed as Proforma defendants Nos. 2 to 8. Upon death of the original defendant Chouthmal, his daugther Smt. Umrao Bai was brought on record. In the amended plaint, it was pleaded that original defendant Chouthmal was a statutory tenant and on his death, the substituted defendant, his daughter Smt. Umrao Bai, did not have a legal right to continue in the possession over the suit premises as a tenant as she was not ordinarily carrying on business with the deceased defendant in the suit premises and she did not fall within the definition of a 'tenant' under the rajasthan premises (control of rent & eviction) act, 1950 (for short `the act of 1950'). Smt. Umrao Bai filed amended written 3statement interalia pleading that her father Chothmal, the original defendant left surviving beside her, one son Jagdish who was duly adopted by the deceased-defendant and was carrying on business in the suit premises along with the deceased, Chothmal. It was pleaded that Jagdish is a necessary party in the suit. Smt. Umrao Bai further pleaded that she was also assisting her father in the business. As regards the allegations of default, subletting, material alteration and bonafide need etc. the defendant denied the same.

On the basis of the pleadings of the parties, the trial court framed necessary issues.

Originally, it was pleaded in the suit that the premises was required for the two sons of the original plaintiff namely, Babu Lal and Laxminarain and upon death of original plaintiff, his son Laxminarain was substituted as a plaintiff who filed an application to the effect that in a partition by metes and bounds amongst the family members which had taken place on 24th October, 1978, the suit premises fell into his share and he became the absolute owner thereof to the exclusion of all others and thus, he had right to continue the suit. It was further pleaded that the need for the suit premises be confined to him only.

To prove his case, the plaintiff examined six witness and relied upon some documentary evidence. The defendant appellant No.1 also examined 6 witnesses and relied upon 69 documents.

The learned trial court, after hearing both the parties, by its judgment dated 1st June, 1996 decreed the suit of the plaintiff and ordered eviction of the defendant. While decreeing the suit of the plaintiff, the learned trial court decided the issue No.1 regarding bonafide requirement and issue No.5 regarding comparative hardship in favour of the plaintiff and against the defendant. Other issues 4regarding subletting, material alteration and default were decided against the plaintiff and in favour of the defendant.

Feeling aggrieved by the impugned judgment and decree passed by the learned trial court, the defendant appellant preferred Civil Regular Appeal and the plaintiff respondent No.1 filed cross objection under Order 41 Rule 22 CPC to the findings on the issues of subletting, material alteration etc.

During pendency of the appeal before the first appellate court, the defendant appellant filed application for framing of additional issues and for remanding the matter back to the trial court for recording of its findings on the proposed issues.

After hearing learned counsel for the parties, the learned first appellate court by its judgment dated 4th December, 1998 dismissed the appeal filed by the defendant appellant.

Hence, the present appeal by the defendant-appellant.

This Court, vide order dated 2nd February, 1999, admitted the instant appeal on the following substantial question of law:-

Whether, the suit for eviction under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, is maintainable against the defendant who has been held to be not the tenant within the meaning of the Act, and, not entitled for the protection of the Act ?

Heard learned counsel for the parties.

It is submitted by Mr. R.K.Agarwal, learned Senior Advocate appeariang on behalf of the appellant that once it has been held that the present appellant is not a tenant within the definition of Section 3(vii)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act,1950 (In short the 'Act of 1950'), the suit for eviction on the ground envisaged under Section 13 of the Act of 1950 is not maintainable since the legal representative of the deceased tenant does not come within the definition of section 3(vii)(b) provided in the 5Act of 1950 and hence not entitled to the protection provided in the Act of 1950, and as such, no decree of eviction can be passed on the grounds mentioned in the plaint.

In support of his contention he has placed reliance upon the Case of Laxmidas Morarji (Dead) by Lrs.Vs. Behrose Darab Madan, (2009)10SCC 425.

On the other hand, learned counsel for the respondents has supported the impugned judgment and decree passed by the learned Appellate Court.

Indisputably, after the death of the original tenant, the appellant was brought on record. It is also not in dispute that the appellant Umrao Bai original-appellant since deceased was never carrying on business in the suit shop with the original tenant during his lifetime till his death. It is pertinent to reproduce the definition of tenant as defined in section 3 (vii) (b) of the Act of 1950 which reads as under:- " Tenant means- (a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any permises to his landlord including the person who is continuing in its possession after the terminating of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of permises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death." The core question to be decided by this Court is whether 6the suit for eviction can continue after the death of a tenant his legal representative, who was not carrying on business with the tenant till the time of his death. The point in dispute is not Res integra as is clear from the case law cited below.

In the Case of Tarachand & Another Vs. Ramprasad 1990 (3) SCC 526 the Hon'ble Apex Court obserrved as under:- "Similarly in respect of premises leased out for commercial or business purposes, it must be established that the surviving spouse or son or daughter and the heir, as the case may be, ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premised and continued to do the business till date of the death of the tenant. In other words to avail of the statutory right under section 3 (vii) (b) there must be continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy." In the Case of Mohd. Kasam & Ors. Vs. Ghasi Lal 2003 (3) DNJ (Raj) 1477 the Co-ordinate Bench of this Court observed as under:- "I have considered the rival submissions. The facts of Tara Chand's case (supra) were that the original tenant Smt. Anandi died in September, 1966.

She was tenant of the respondent landlord from 1.5.1964. The landlord instituted the suit for eviction against the husband as well as son of Smt. Anandi, after her death on the ground that both of them were not his tenants. The trial Court dismissed that suit.

During the pendency of the appeal the provisions of section 3(vii)(b) of the Act were amended in the year 1976 by Act No.14 of 1976. Thereafter both the appellants prayed vide an application that they were carrying on business with the original tenant, hence 7they were now the tenants. Both the trial Court as well as the appellate Court did not find this fact to be proved and passed decree of eviction against the appellants. The Hon'ble Supreme Court in para 16 of the judgment reported in Tara Chand's case (supra), held that on her death, the rights to succession to an estate of the deceased owner vested immediately on his/her than (sic then) nearest heirs and cannot be held in abeyance except when a nearer heir is then in the womb. The vested right cannot be divested except by a retrospective valid law. The appellants by virtue of intestate succession under Hindu Succession Act, being Class I heirs, succeeded to the heritable interest in the lease hold right of demised premises held by Smt.

Anandi. They, thereby, stepped into the shoes of the tenant. They continued to remain in possession as on the date of the suit as statutory tenants. Thereby, they are entitled to the protection of their continue as a statutory tenant under the Act. The succession having been opened to the appellants and succeeded in September,1966 to the estate of the tenant without any hiatus and restriction on the heritable interest in the lease hold right held by the tenant Smt. Anandi, the Amendment Act being admittedly prospective in operation, does not apply to the facts of the case and does not have the effect of divesting their vested rights in the lease hold held by the tenant. They are entitled to easy the tenancy rights without any restriction of hegde put by the Amendment Act. We, thereby held that the Amendment Act does not apply to the facts of this case. But the appellants succeeded to the heritable interest in the lease hold right in the demised premises governed by the Act subject to the rights and limitations prescribed under the Act and also subject to the rights in favour of the respondent created under Section 13 (1) (a) to (k) and other provisions of the Act. But in para 3, it was held by Hon'ble the Supreme Court that in the amended definition of tenant, if one 8seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the Court that the surviving spouse, son or daughter and other heir, in respect of premises leased out for commercial or business purposes, it must be established that the surviving spouse or son or daughter and the heir ordinarily had been carrying on the business during the life time of the tenant as member of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words, to avail of the statutory right under section 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased-tenant and the spouse etc. Thus, in view of the judgment of Hon'ble Apex Court the three judgments relied upon by learned counsel for the appellants (all Supra) are not applicable to the facts of the present case. In the instant case, the original tenant died on 12.12.2001 i.e.

much after the amended definition of the tenant and thus as held by Hon'ble the Apex Court in Para 3 of the judgment, the appellants can avail of the benefit of statutory tenancy under the Act only when it is established that they were ordinarily carrying on business with the deceased-tenant in the suit shop as member of his family upto his death. This is not relevant that the present suit was filed in the year 1975." Similarly, in the Case of Ankur Sharma Vs. Smt. Darshan Bali & Others 2001(2) WLC (Raj.) 372 after considering various rulings, the Co-ordinate Bench of this Court held as under:- "Similarly once the Rajasthan Act defines 'tenant' to mean such a tenant who continues to remain in possession after termination of the tenancy till a decree for eviction is passed, either during life time or after death of statutory tenant, thus the legislative intent is explicit clear that it 9has stressed upon continuity to have an estate or interest in the tenanted premises either residential or commercial and with that intent in view the legislature has made specific provision in the Rent Act limiting the benefit of right of inheritence to be enjoyed to the heirs of the deceased tenant on the condition laid down being fulfilled, so the benefit of such protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act, itself. In other words, every heir of a deceased tenant who was not residing or carrying on business during life time of a deceased tenant as member of his family is not entitled to inherit inspite of the fact that he is one of the heirs in accordance with the personal law applicable to the deceased tenant. In my considered view also, for inheriting the tenancy right under section 3(vii)(b) of the Act, possession and user of the rented premises by surviving heirs of deceased tenant referred to in sub clause (a) during his life time is a condition precedent whether the premises is leased out for residential or for commercial purpose." In the case of Smt. Usha and Another Vs. Sukhsampatmal 1995 DNJ (Raj.) 392 has observed as under:- "The first appellate court has categorically held that the defendatns Mst. Usha and Mukesh were not carrying business in the suit shop prior to the death of the tenant Ramanna.

This finding cannot be said to be perverse or contrary to record. Admittedly, Mukesh was a minor when the suit was filed. It has not been pleaded in the written statement that he was carrying on the business of his father till his death in the suit shop. It has been averred in it that the widow Mst. Usha admitted case of the parties that the tenant was carrying on business of type- repairing in the suit shop. Mst. Usha admitted in her cross-examination that she was not knowing type repairing and she used to visit the suit shop once in a week. It is a finding of fact. It is not open to challenge in second appeal." In the case of LR's of J.R. Ansari Vs. Hariram RLW 2000(3) Raj. 195 wherein it was held as under:- "In view of the aforesaid judgment of the Supreme Court, both the conditions have to be fulfilled i.e. he must be a legal heir as well as he must carry on the business with the deceased tenant upto his death otherwise he shall not be entitled to be substituted on the death of tenant." In Chaman Lal & Anothers Vs. Narendra Kumar 1995 DNJ 563, this court while considering the said issue held that the full bench judgment of this court in Smt. Ramjeevni and Ors. Vs.

Narati Bai 1989 (2) RLR-308 was not a good law in view of the judgment of Apex Court in Tarachand (supra) and the question of substituting the legal representatives as a tenant would not rise unless they fulfil both the conditions provided in the Section.

In the case of Navneet Rai Vs. Otmal 1995 (2) WLC-190, this court restricted the substitution only of those heirs, who fulfiled both the conditions contained in section 3 (vii) (b) of the Act of 1950.

In the case of Bharat Singh Vs. Barat Kumar 2000 (3) RLR- 397, this court observed as under:- "Since it is necessary for continuation of tenancy that the person claiming to be the tenant in place of original deceased tenant should be an heir as well as a person carrying on business as member of the family with the deceased in the presmises." In the case of Mahendra Rai Baxi Vs. Smt. Laxmi Devi & Anr. this court observed as under:- "The aforesaid judgment relied upon by the learned counsel for the appellant defendant, in the opinion of this Court, does not militate agaisnt the above referred judgments relied upon by the learned counsel for the plaintiff respondents and does not lay down that such legal heirs of statutory tenant after his death would not be covered by the provisions of State Rent Control Act and besides protection available under the State Rent Control Act would not be bound by obligations and grounds of eviction establish under the State Rent Control Act. Therefore, irrespective of the heirs of the statutory tenant stepping into the shoes of statutory tenant upon his death, it is only proper to hold that such legal heirs would also be bound by all the rights and obligations of the State Rent Control Act as the original tenant was, as laid down by the Hon'ble Supreme Court in Tara Chand Vs. Ram Prasad and Smt. Gain Devi Anand Vs.

Jeevan Kumar a nd others (supra)." "In the present case, it is also worth noting that death of statutory tenant or the original tenant Mahendra Rai Baxi took place after filing of the suit, whereas, in the case involved before the Hon'ble Supreme Court in Jagdish Chandra Sinha (supra) the death of statutory tenant took place prior to the filing of the suit. Since filing of eviction suit itself amounts to temination of tenancy and as per the law laid down by the Constitution Bench in V. Dhanpal Chettier Vs. Yashodai Ammal (supra) no notice terminating the tenancy under Section 106 of the Transfer of Property Act prior to filing of the eviction suit is necessary, such an extended protection for the legal heir of the statutory tenant as canvassed by the learned counsel for the appellant defendant is neither envisaged in law nor can be otherwise given to him and such legal heir having admittedly not carried on the business with the original tenant or so called statutory tenant upto his death, is not entitled to any additional or extra privilege or protection other than the one enjoyed by the original tenant himself and the eviction decree passed against the original tenant would equally bind the said legal heir and sublettee." From above legal position it is clear that following two conditions must be fulfilled before inheriting the tenancy rights in respect of a commercial premises :- (1) User of the rented premises by a surviving heir of deceased tenant upto his death.

(2) He must be a legal heir of the deceased tenant.

It is pertinent to reproduce here the findings of the learned appellate Court recorded in para 22, which are as follows.

'' # ' / ' ' 9 '# ' ' # ' 60 9 ( 23-04-1996 60 9 '9 ) 1950 3(7)() 9 # # ' # ' ' 9 # # H / # '' " 9 '# 9 , '# '' '# # ' '' H # # # '' '' '' # # 23- 02-1983 ' # # # # # # 1950 3(7)() # 1990 (3) 9 526 ' 1996 (2) / (') ' 585 '' '' / # T ' 1950 3(7)() # # # '' The above findings recored by the first appellate Court are based on correct appreciation of the material placed on record. The said findings are findings of facts. It is not open to challenge the same in the second appeal. The finding of facts cannot be looked into and reappreciated at this stage & hence, require no interference in this second appeal.

After the decision of the first appeal, further development has taken place, which is also noticeable. This second appeal was filed by Smt. Umrao Bai. During its pendency, she also expired on 30/01/2010 and the present appellants were brought on record on 22/02/2011 and this Court passed the following directions while disposing of the application under Order 22 Rule 3 CPC :- (1) So called legal representatives, as mentioned in the application under Order 22 Rule 3 CPC, are brought on record for the purpose of prosecuting this appeal, however, it is made clear that mere substitution of their names will not confer any legal right on them and that will be subject to legal objection taken by respondents that they cannot be substituted as legal representatives of deceased-appellant as they were not carrying on business with the deceased.

(2) It will be open for the respondents to agitate all legal objections including objection to substitution of legal representatives of deceased-appellant at the time of hearing of the appeal.

(3) Similarly, it will be open for the legal representatives to satisfy this Court on merits that they are entitled to be substituted in place of deceased-appellant.

(4) All these questions will be considered and decided at the time of hearing of the appeal.

It is clear from the above that the present appellants were brought on record for the purpose of prosecuting this appeal. From the facts brought on record it appears that Smt. Umrao Bai never carried on business in the suit premises. Therefore, the present appellants, who are husband, sons and daughters of the deceased Smt. Umrao Bai have no right to get them substituted in her place. Even Smt. Umrao Bai did not satisfy the requirement of section 3 (vii) (b) of the Act of 1950 and the present appellants, who have stepped in the shoes of Umrao Bai cannot inherit the tenancy rights.

In the result, the present appeal has abated and it is ordered accordingly. The substantial question of law framed by this Court does not survive for consideration.

(Prakash Gupta),J.

M.Meena