KAN SINGH, J. - (1.) THIS is second appeal arising out of a suit for eviction.
(2.) THE suit premises are situate at Chowk Panigraha. Ajmer (house No. 19/ 477 ). THEy were taken on rent by one Shri Harjamal for Rs. 20. 50 per month. THE tenancy was oral and commenced from the 1st of each calendar month. THE plaintiff-respondent terminated the tenancy of Harjamal and then filed a suit against him for arrears of rent and eviction in the court of Munsif, Ajmer City (West), Ajmer, on the ground of bona fide personal necessity. THE suit was later on transferred to the court of Munsif, Ajmer District, Ajmer. THE learned Munsif dismissed it on 5-9-1967. Aggrieved by the judgment and decree of the learned Munsif, the landlord went up in appeal to the court of District Judge, Ajmer. THE learned District Judge transferred the appeal to the the Civil Judge, Ajmer. During the pendency of the appeal Harjamal died on 27th February, 1968. THE appellant landlord before the Civil Judge, however, filed an application for impleading the legal representatives of deceased Harjamal on 1st July, 1968, that is, beyond the period of limitation and the appeal was accordingly treated as one that had abated (vide order of the Civil Judge dated 18th August, 1969 ). On 20th of January, 1970, the landlord filed the second suit against the legal representatives of Harjamal for arrears of rent as well as for eviction. It was pleaded that the suit premises were required for the family needs of the landlord. The landlord further took the stand that on the death of Harjamal, his legal representatives were not entitled to the protection under sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called 'the Act' ). The defendants Mst. Gauri, wife of Harjamal and others contested the suit. It was pleaded by them that the tenancy rights that Harjamal had in the suit house devolved upon them as heirs and legal representatives in accordance with Hindu Law, with the result that the defendants were entitled to continue on the property on the same terms and conditions on which Harjamal was residing there. The bona fide personal necessity of the landlord was also denied. The defendants further denied that the rent had been in arrears. The learned Munsif, Ajmer City (West), Ajmer, before whom the suit was filed, decreed the suit for eviction against the defendants. Aggrieved by the decree of the learned Munsif the defendants went up in appeal to the court of learned District Judge, Ajmer, who transferred the appeal to the learned Additional Civil Judge. The learned Additional Civil Judge affirmed the findings of the learned Munsif and dismissed the appeal. It is in these circumstances that the defendants have come in further appeal to this Court. Learned counsel for the appellants has raised a question of law and put it in the forefront. He submits that Harjamal being a statutory tenant the defendants could not be sued as tenants or statutory tenants, but only a title suit could be brought against them on payment of the necessary Court-fee as trespassers. The question, therefore, arises whether the legal representatives of a deceased tenant whose tenancy had been determined according to law could be sued for eviction in the same manner as the deceased tenant, if alive, could have been sued for the recovery of property.
(3.) SO far as the question whether the protection available to a statutory tenant under section 13 of the Act could be claimed by his heirs after his death or not is con-cerned their Lordships of the Supreme Court have held in a number of cases, and I need cite only one, namely, J. C. Chatterjee vs. Shri Sri Kishan Tandan (l) that the heirs of the deceased tenant whose tenancy had been determined cannot claim the statutory protection. Also the question whether on the death of a tenant whose contractual tenancy had already been determined during the pendency of a suit for eviction filed by the landlord the possession of the premises against the legal representatives of the deceased tenant could be claimed in the same suit has been settled by a Division Bench of this Court in an un-reported case Damodar Das vs. Badri Narain (D. B. Civil Special Appeal No 3 of 1965, decided on 7th April, 1966 ). The relevant observations may be read in extenso: "we have not been impressed by Mr. Agar-wal's argument that the landlord will have to file a separate suit against the present respondents if he wants to evict them Mr Agarwal has candidly conceded that under the general law a suit for eviction commenced against a tenant could be continued on the death of the tenant against his legal representatives and on a decree being given they can be evicted from the premises occupied by them. Mr. Agarwal seeks to draw a distinction in the case of a statutory tenant. He submits that the cause of action against such a person arises only under the Act and once that right of the statutory tenant under the Act has come to an end with his death no right remains subsisting against his heirs. We however find ourselves unable to bifurcate the cause of action so as to limit it to be one under the Act alone. As already observed by us, a landlord seeking eviction has to show that he has fulfilled the requirements of the Transfer of Property Act and thereafter he has also to show that he satisfies the conditions laid down in sec. 13 of the Act, so that the immunity granted by that section to the tenant is not available. As such we are not convinced that cause of action should be narrowed down only to the facts necessary to be established for getting over the ban created by sec. 13 of the Act. The term cause of action will comprise a bundle of all essential facts necessary for the plaintiff to prove before he can succeed and it will be as much necessary for the plaintiff to prove that he has properly determined the tenancy in accordance with sec. 111 of the Transfer of Property Act, as it would be to show that the ban imposed by sec. 13 of the Act against his getting the relief stands removed. If by operation of law the ban imposed by sec. 13 of the Act stands lifted against the landlord then in such a situation his cause of action will be founded only on the existence of the tenancy and its determination according to the provisions of the Transfer of Property Act. Such a right of action, to our mind, will survive against the legal representatives of a deceased tenant. Right to get possession of ore's property is not in the nature of a personal right, but it relates to property and hence can be enforced against the legal repre sentatives of an adversary after his death, It is true the legal representatives will be able to raise all the defences which were open to the deceased tenant under the general law, but as the Rent Control Act does not provide for any devolution of such right claimable under sec. 13 of the Act in favour of the legal heirs of a deceased tenant, as per dicta of their Lordships of the Supreme Court in Anand Niwas Pvt. Ltd. vs. Anandji Kalyanji's Pedhi and others such immunity cannot be claimed by the present respondents. As we have already observed that on 1-2-1961 Damodardass had given a notice to Radha Vallabh that the shop should be vacated and it is not contested before us that tenancy was not terminated according to law by this notice. We are, therefore, unable to accept Mr. Agarwal's contention as sound. " In a recent case, a Full Bench of Delhi High Court has held likewise in the case reported as K. G. Malhotra vs. Vijay Kumar (2 ). The learned Judges, inter alia, referred to Order 21, rule 35 Civil Procedure Code which Jays down that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. The legal representatives of a tenant claiming through him are undoubtedly bound by the decree. The learned Judges of Delhi High Court went on to observe that any person in occupation of the premises is liable to be evicted in execution of the order for eviction on the presumption that he is claiming through the deceased tenant. From this premise they came to the conclusion that the civil court can, therefore, pass a decree for the possession of the premises against the legal representative of the deceased tenant in the same proceedings in the suit. I ought to mention that as pointed out by the learned Judges if, however, the legal representatives have an independent title, that is, a title to occupy the premises not through the deceased tenant but in their own right or through someone other than the deceased tenant, then they cannot be evicted in execution of the order for eviction. Here the question is in a slightly different form. The statutory tenant had not died during the pendency of the suit but the present suit was filed when the statutory tenant was already dead. There is no manner of doubt that the immunity available to the deceased tenant under sec. 13 of the Act would not be available to the legal representatives of such tenant. The limited question is whether the plaintiff landlord will have to bring the suit against the legal representatives as trespassers or as he could have sued the deceased tenant. This matter, in my view, should be governed by the provisions of the Civil Procedure Code. ;