Himachal Pradesh High Court
Narinder Kumar And Anr. vs Ramesh Kumar And Anr. on 11 March, 1994
Equivalent citations: AIR1995HP87
JUDGMENT Devinder Gupta, J.
1. This is defendants' second appeal against the judgment and decree passed on 15th December, 1988 by the Additional District Judge, Solan dismissing their appeal and thereby confirming the judgment and decree passed on 7th December, 1985 by the Senior Sub-Judge, Solan decreeing the suit of the plaintiff-respondents. The appeal was admitted for hearing on the following questions of law:
1. Whether the appellants who were residing with Rattan Chand and Bhagwanti Devi at the time of their death are entitled to inherit the tenancy rights under the H.P. Urban Rent Control Act, 1987?
2. Whether the appellants were trespassers in the premises and the decree for possession passed by Civil Court is sustainable in law?
2. I have heard the learned counsel for the parties at length and gone through the record.
3. The plaintiffs claimed a decree for possession by way of ejectment of defendant-appellants from a residential premises comprising two rooms, kitchen, bath, latrine, verandah and open courtyard, situate in the ground floor of the building known as Mukand Bhawan bearing Municipal Committee No. 61 in Ward No. 2, The Mail, Solan. It was alleged that one Rattan Chand was a tenant under them on payment of monthly rent of Rs. 30/- and on his death, by operation of law, his widow Smt. Bhagwanti Devi became a statutory tenant under them. Her eviction was sought by them by taking out proceedings for ejectment under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1971 (Act No. 21 of 1971) (hereinafter referred to as '1971 Act') inter alia on the grounds of non-payment of the arrears of rent and bona fide personal requirement etc. An order of eviction was passed against her by the Rent Controller, Solan on 30th April, 1980 on the ground of non-payment of arrears of rent. Other grounds were turned down. The arrears of rent were duly paid thereafter within a period of 30 days by her, thus this ground became redundant. Feeling aggrieved, the plaintiffs carried the matter in appeal before the Appellate Authority, Solan. During the pendency of appeal, Smt. Bhagwanti Devi died. It was further averred that since on the death of Smt. Bhagwanti Devi, the statutory tenancy had come to an end, the appeal was withdrawn by them. With this background, it was alleged in the civil suit that the defendants, who are the sons of Rattan Chand had no right to continue in occupation of the premises. Their possession is unauthorised. A decree for possession by way of ejectment was sought.
4. The suit was contested by the defendants, who took up a plea that Rattan Chand in the capacity as Karta of Hindu undivided family, comprising himself, his sons and wife was a tenant in the premises. Tenancy thus was in favour of Hindu undivided family and not in his individual capacity. On the death of Rattan Chand. they being members of the Hindu undivided family were entitled to continue in occupation of the property as tenants. It was pleaded that during the pendency of appeal preferred by the plaintiffs against Smt. Bhagwanti Devi, an application was made, after the death of Smt. Bhagwanti by the plaintiffs for impleading the defendants as party-respondents in which an order was made by the Appellate Authority, Solan, impleading them as respondents. Thus, otherwise also the defendants will be deemed to have been conferred with the status of tenants under the plaintiffs. With these pleas; defendants sought dismissal of the suit alleging that the plaintiffs had no right to seek possession by filing a civil suit against them. They can be ejected only by taking out proceedings under the Rent Control legislation, since premises are located within the urban area of Solan.
5. The trial Court held that Rattan Chand in his individual capacity was a tenant and on his death, Smt. Bhagwanti Devi alone was rightly treated as a statutory tenant by the plaintiffs. After death of Bhagwanti, defendants had no right to inherit the tenancy rights and thus they had no right to hold back the possession of the premises. Their plea that Rattan Chand had taken the premises in the capacity as Karta of joint Hindu, family was also negatived. Suit was decreed The appeal by the defendants before the lower appellate Court also met the same fate. It is this judgment and decree, which is under challenge in the instant appeal.
6. Learned counsel for the appellants has submitted that during the pendency of litigation 1971 Act has been repealed and replaced by the Himachal Pradesh Urban Rent Control Act, 1987 (Act No. 25 of 1987) (hereinafter referred to as '1987 Act'). By virtue of definition of tenant, as contained, therein, which has a retrospective effect, the appellants, who were ordinarily residing with their father Rattan Chand in the premises, succeeded to the tenancy simultaneously with their mother Smt. Bhagwanti Devi. As such, they are neither in unauthorised possession, nor are liable to be dispossessed, otherwise than in due course of law, namely, on the basis of an order passed by the Rent Controller only.
7. Mr. C.B. Barowalia, learned counsel for the plaintiff-respondents has tried to support the decrees passed by the Courts below by submitting that the definition of tenant in 1987 Act is not retrospective. Rattan Chand died somewhere in the year 1972 and as per the law prevalent, only his widow was entitled to succeed to the tenancy. She remained in occupatibn only as a statutory tenant and on her death, which took place before coming into force of 1987 Act, the defendants had no right to succeed. Thus, no interference is called for in the judgment and decrees of the Courts below.
8. After having heard the learned counsel for the parties, the defendants' plea, which they took in their written statement that Rattan Chand was inducted as a tenant in the capacity as Karta of Hindu undivided family is not capable of acceptance. Both the Courts below have rightly concluded that Rattan Chand was a tenant in his individual capacity. Negativing this plea, the other undisputed facts are that Rattan Chand was a tenant under the plaintiffs, who admittedly died after coming into force of 1971 Act. The evidence on record is also to the effect that Rattan Chand was residing in the premises along with his wife Smt. Bhagwanti Devi, two sons, namely, defendand-appellants and the daughters, who admittedly are now married. On the death of Rattan Chand, his wife Bhagwanti Devi and his two sons, namely, defendants were ordinarily residing with him. It is also the admitted position that Smt. Bhagwanti Devi expired on 5th January, 1981. In the light of these facts, which otherwise stand proved on record and are disputed, the questions framed deserve to be answered.
9. The Himachal Pradesh Urban Rent Control Act, 1987 (Act No. 25 of 1987) is a rent control legislation providing for the control of rents and evictions within the limits of urban areas of the State of Himachal Pradesh. Though the Act was passed by the State Legislature on 14th September, 1987, it received the assent of the President of India on 20th October, 1987 and published in the Rajpatra also on 20th October, 1987, 1971 Act was repealed and substituted by 1987 Act. Section 34 of 1987 Act deals with the repeal and savings and says:
"(l) The Himachal Pradesh Urban Rent Control Act, 1971, is hereby repealed.
(2) Notwithstanding such repeal, but subject to the provisions contained in Sub-Section (3), all suits, appeals and other proceedings, including execution proceedings, under the said Act, pending before any court or appellate or revisional authority, on the appointed day shall be disposed of in accordance with the provisions of this Act, as if the provisions contained in this Act were, at the relevant time, in force.
(3) Nothing contained herein shall authorise any court or authority or tribunal to reopen any suit or proceedings in which the orders passed have already become final and executed."
10. Sub-Section (2) aforementioned expressly provide for the disposal of all pending suits, appeals and other proceedings on the appointed day in accordance with the provisions of 1987 Act notwithstanding the repeal of 1971 Act. In view of Sub-Section (2) of Section 34 of 1987 Act, this appeal also is required to be disposed of in accordance with the provisions of this Act and not 1971 Act.
11. For certain purposes, the Act has been made retrospective from the appointed day, namely, 18th August, 1987 and for other purposes, the same is deemed to have come into force on 17th November, 1971. As regards the date of the coming into force of the Act, Sub-Section (3) of Section 1 reads as under:
"This Act shall and shall be deemed to have come into force on the 17th day of November, 1971, but --
(i) provisions contained in clauses (h) and (i) of Section 2; Section 4; Section 5; Sub-Section (2) of Section 15; Section 17; Sub-Section (3) of Section 30; Section 34 and Schedule-I of this Act shall be deemed to have come into force on the appointed day;
(ii) provisions contained in Clause (d) of Section 2; Sub-Sections (1) and (3) of Section 15; Section 16; Section 27; Section 28 and Schedule-II of this Act shall and shall be deemed to have come into force from the day on which the corresponding provisions were inserted in Clause (d) of Section 2; Section 14-A; Section 14-B; Section 23-A and Section 23-B of the Himachal Pradesh Urban Rent Control Act, 1971;
(iii) provisions contained in Section 4 and Section 29 of the Himachal Pradesh Urban Rent Control Act, 1971 shall be deemed to have remained in force during the period reckoned from the day on which these were substituted or inserted, as the case may be, in the said Act, till the appointed day; and
(iv) provisions contained in Section 35 shall come into force at once."
12. Tenant in 1987 Act has been defined in Clause (j) of Section 2, which provisions, as per Sub-Section (3) of Section 1 shall be deemed to have come into force on 17th November, 1971. Thus, by a deeming fiction, retrospective effect has been given to the definition of the tenant in 1987 Act. Tenant in 1987 Act has been defined to mean:
"(j) 'tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after termination of the tenancy and in the event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and Explanation-II to this clause, but does not include a person placed in occupation of a building or rented land by it tenant, except with the written consent of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a municipal corporation or a municipal committee or a notified area committee or a cantonment board;
Explanation-I: The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows --
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
(c) thirdly, his parent(s), if there is no surviving spouse, son, daughter or any of them, did not ordinarily live in the premises a member of the family of the deceased person up to the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his pre deceased son, if there is no surviving spouse, son, daughter or parent(s) of the deceased person or if such surviving spouse, son daughter or parent(s), or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death;
Explanation-II: The right of every successor, referred to in Explanation-I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs ....."
13. Before 1987 Act was enacted, it was 1971 Act, which was in force. In the said Act by virtue of the Himachal Pradesh Urban Rent Control (Amendment) Act 1973 (Act No. 22 of 1974), Section 4 was amended providing for tenancy to the widow/widower of the minor children of the tenancy. In view of the repeal of 1971 Act and by giving retrospective effect to the definition of tenant in 1987 Act and requiring disposal of all suits, appeals etc. under 1987 Act, the definition of tenant as given in 1987 Act will be deemed to have come in force ever since 1971 Act came into force, namely, 17th November, 1971.
14. There is nothing on record as to the status of Rattan Chand, tenant, as to whether he was a contractual tenant or a statutory tenant, since there is nothing stated in the plaint to this effect. The plaintiffs pleaded that on the death of Rattan Chand tenant, Smt. Bhagwanti Devi succeeded as a statutory tenant. Status of Rattan Chand whether as statutory or contractual tenant for the purposes of present appeal will in my view is immaterial since consequences in both the eventualities in so far as the present appeal is concerned are likely to be the same.
15. A single Judge of this Court in Rajesh Dhawan v. Darshan Singh Sethi, ILR (1985) Him Pra 129, while dealing the provisions of 1971 Act held that for the purpose of the said Act, there was no distinction between a statutory tenant and contractual tenant as regards the heritabitity to the rights of a tenant in occupation of the tenanted premiseSection It was so held on following the ratio of the judgment in Damadilal v. Parshram, AIR 1976 SC 2229.
16. On the death of the contractual tenant admittedly the tenancy right held by him would be heritable by his heirs. In the instant case even assuming that Rattan Chand was a statutory tenant, it cannot be disputed and has not been so disputed by the respondents that his rights were also heritable. According to the case pleaded by the plaintiffs, it was the widow also who succeeded to such rights under the definition of the tenant as contained in 1971 Act, and as amended by 1974 Act. But according to the submissions made by the learned counsel for the appellants, widow alongwith the two sons, who admittedly were residing with Rattan Chand at the time of his death also succeeded to such tenancy rights, since retrospective effect has been given to the definition of tenant in 1987 Act.
17. A Full Bench of this Court in Smt. Satya Devi v. Ravinder Kumar, AIR 1990 Him Pra 43, noticing the definition of tenant, as given in Clause (j) of Section 2 of 1987 Act, has held that the statutory tenant has an estate, which is heritable, subject to restrictions, which may be imposed by the Rent Controller legislation. In Satya Devi's case (supra), the tenant therein was held to be a statutory tenant, who had died on 12th January, 1970, i.e. much prior to coming into force of 1971 Act, when the East Punjab Urban Rent Control Act, 1949 (Punjab Act No. 3 of 1949), as applied to Himachal Pradesh was in force. It was held that his estate was heritable by his heirs. The Full Bench also held that by virtue of Sub-Section (3) of Section 1 of 1987, it will be deemed to have come into force on 17th November, 1971. The submission of the learned counsel for the respondents that retrospective effect cannot be given to the definition of tenant as contained in 1987 Act cannot be accepted. In view of the ratio of Full Bench in Satya Devi's case (AIR 1990 Him Pra 43) (supra), which was decided after following the dicta of Supreme Court in Damadilal's case (AIR 1976 SC 2229) (supra) and that of Smt. Gian Devi Anand v. Jeevan Kumar, AIR 1985 SC 796, it has to be held that Rattan Chand had an estate, which was heritable subject to the restriction imposed by the Rent Control legislation, which in this case would be as provided in Section 2(j) of 1987 Act.
18. Since the death of Shri Rattan Chand took place after coming into force of the 1971 Act, his estate had become heritable and by virtue of the definition of tenant as given in Clause (j) of Section 2, the persons mentioned in Schedule-I of 1987 Act, who were ordinarily residing with him at the time of death, subject to order of succession and conditions specified in Explanations I and II of Clause (j) of Section 2 will be entitled to retain possession as statutory tenants.
19. In an another decision of this Court in Indra Vati v. Devki Devi (1989) 1 Sim LC 36, a learned Single Judge had an occasion to deal exhaustively with the definition of a tenant as contained in Clause (j) of Section 2 of 1987 Act. It was held that on the death of a statutory tenant his estate would become heritable simulatenously by such of the heirs as are mentioned in Schedule-I, who ordinarily were residing with him at the time of his death. It was also held that the order of succession appears to have been provided in Expalanation-I with the object of a practical point of view, namely, the persons with whom the landlord may be in a position to deal at a particular point of time. The meaning which must be given to the expression 'order of succession' is the sequence amongst the various heirs, whom the landlord shall treat as a particular heir to be the tenant for the purpose of his dealings with those whose irremovability is provided by the legislature even after the death of a tenant, whose tenancy had been terminated. In other words what has been held in Indra Vati's case (supra) is that it is one time succession, which has to take place on the death of a statutory tenant. His rights would be heritable simultaneously by such of his heirs, who are mentioned in Schedule-I, subject to the condition that they were ordinarily residing with him at the time of his death.
20. From the above, it is to be held that on the death of Rattan Chand, his widow, and two sons, namely, defendant-appellants were the heirs ordinarily residing with him, who are also the heirs mentioned in Schedule-I. They simultaneously inherited the tenancy rights by virtue of Clause (j) of Section 2 of 1987 Act. The landlord rightly started dealing with only one of them, namely, Smt. Bhagwanti Devi, who also died on 5th January, 1981. On her death, the other two heirs of Rattan Chand, who had already inherited the tenancy simultaneously with Bhagwanti Devi continued to be tenants in the premises in question and the plaintiffs had no right to seek possession of the premises from them by filing Civil Suit since the defendant-appellants can be ejected only by having resort to the proceedings for ejectment under the provisions of the Rent Control legislation.
21. In view of the above, question No. 1 deserves to be answered in affirmative and question No. 2 in the negative. No other point was urged or agitated.
22. In the result, the appeal succeeds. Judgment and decrees passed by the Courts below are set aside and the suit of the plaintiff-respondents is dismissed leaving the parties to bear their respective costs.
23. While parting with this judgment, it may be observed that any amount paid or deposited by the appellants towards use and occupation charges or mesne profits will be liable to be adjusted towards the rent due from them.