Punjab-Haryana High Court
National Flour Mills Pvt. Ltd vs Ram Sarup Son Of Shri Telu Ram Vaish ... on 30 August, 2012
Author: K. Kannan
Bench: K. Kannan
C.R. No.5383 of 1999 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.5383 of 1999
Date of Decision.30.08.2012
National Flour Mills Pvt. Ltd., Novelty Road, Karnal (Haryana through Sh.
Harbans Lal, Director and others .....Petitioners
Versus
Ram Sarup son of Shri Telu Ram Vaish Aggarwal, resident of Novelty Road,
Karnal (Haryana) .....Respondent
Present: Mr. Roshan Lal Batta, Senior Advocate with
Mr. Sanjay Tangri, Advocate
for the petitioners.
Mr. C.B. Goel, Advocate
for the respondent.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ?
Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.(ORAL)
1. The revision petition is against the order of ejectment passed by the Appellate Authority reversing the decision rendered by the Rent Controller. The issue that is brought before the Court in revision is purely on law and I would not detain the case by setting out elaborately on facts.
2. The tenant, who is the revision petitioner, took the property on rent from one Ram Sarup, who was his landlord. His landlord himself had taken the property on lease originally for a period of 20 years on 15.07.1965. In an action for eviction brought at the instance of his landlord, the contention in defence by the tenant was that his (landlord's) own lease was only for a period of 20 years and after the expiry of said period, he had lost his status as landlord. His further C.R. No.5383 of 1999 -2- contention was in relation to an event of purchase of half share from the original land owner. It was brought in evidence that his own landlord had purchased the remaining 50% from the original land owner. The contention consequently was that there was a change in his character of possession being a co-owner in possession of the property and therefore, he cannot be evicted.
3. The learned Senior Counsel appearing on behalf of the petitioners would contend that after the termination of lease period on completion of 20 years at the time of commencement on 15.07.1965, his own landlord was liable for eviction in terms of the rent deed and therefore, the tenant has no compulsion to recognize him as his landlord. According to him, the tenancy in his (landlord's) favour stood extinguished by efflux of time and consequently, the operation of the bar of denial of landlord-tenant relationship as provided under Section 116 of the Evidence Act does not arise. Learned Senior Counsel refers me to a decision of the Delhi High Court in Rajiv Srivastava Vs. Sanjiv Tuli and another AIR 2005 Delhi 319 to contend that where a tenant (defendant in that case) continued to be in possession even after expiry of lease and when he had admitted rate of rent of premises, his own status as tenant would stand extinguished by efflux of time and when a suit had been filed after the termination of tenancy by notice, the decree passed by the Court would be taken as proper. This decision, in my view, has absolutely no application. Where a suit is been filed by his landlord for recovery of possession after service of notice when the period of lease had expired, the tenant could not plead his right to continue in possession. We are now confronted with the situation where C.R. No.5383 of 1999 -3- the lease was in respect of an urban land with building to which the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 are applicable. The provisions of the Act are not notwithstanding any law to the contrary and Section 13 protects a tenant in possession of a building or a rented land against eviction, except in accordance with provisions of that Act. The determination of lease that could took place by efflux of time under Section 111 has no applicability at all to cases which are governed by the respective State legislation and the landlord, who was himself a tenant of the premises, could not have been evicted by his landlord otherwise than in accordance with provisions of Section 13 of the Act. On efflux of time, the tenant will become a statutory tenant and the landlord, who was a statutory tenant cannot lose his status as such by the mere fact that the period of lease has expired. The tenant in this case, who was a sub lessee cannot, therefore, contend that his landlord's right can be denied since the landlord's own lease had expired by efflux of time. The subtenant's right to possession owes its origin only to the right of his landlord and if his landlord were to lose his right to possession, a fortiorari, the sub-tenant's right could no longer subsist. Such an argument is untenable and without any substance.
4. Learned Senior Counsel also contends that he had purchased half the share from the original landlord directly and therefore, his own status has also changed and he could not be ordered to be evicted. Learned counsel relies on a decision of this Court in Thakar Dass Vs. Surjit Singh and others 2010(3) RCR (Civil) 315 to contend that a tenancy in respect of which the sub-tenant had become a co-owner of C.R. No.5383 of 1999 -4- the property by a purchase would result in extinguishment of his status as a tenant. The above case was in the context of a tenant who purchased 1/3rd share of the land from the owners to which the provisions of Rent Restriction Act were applicable and having purchased the property, he had sought for partition of the land between co-owners and on such partition, the status of tenant as a co-owner was found to have been extinguished. The issue, therefore, is not that the tenant buying the property of fractional share of the property could obtain a higher status as a landlord himself. If the decision were ever to make a meaning that a tenant on acquiring a fractional share of the property could defy the jural relationship itself then I am afraid it is not stating a correct proposition. The principle is governed squarely by Section 116 of the Evident Act, which is reproduced as under:-
"116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
5. The Evidence Act enacts a fundamental principle of estoppel in that it bars the tenant from denying the tenancy during the subsistence of the tenancy. This Section is clear in its import that a tenant cannot be permitted to deny the landlord's status. The expression landlord found in the tenancy enactment itself does not require the person to be a land owner of the property. Ownership in land is not a sine qua non for creating a tenancy. They are two different concepts. It is irrelevant to test the subsistence of jural relationship by C.R. No.5383 of 1999 -5- reference to a question of whether the landlord was also owner of the whole property or a tenant has obtained any right of ownership in relation to the property. Even a plea of jus tertii shall be possible for a tenant to contend only when a paramount owner ejects his own landlord and the person in possession is afforded an occasion to attorn to the actual owner/paramount title holder. The tenant without surrendering possession of the property to his own landlord will be estopped from contending by operation of Section 116 of the Indian Evidence Act that he had acquired larger right and therefore, he cannot be evicted. The duty of the tenant is to surrender possession and work out his right for partition of his share on the basis of ownership claim. This has been dealt with in the decision of the Supreme Court in Huidrom Konungjao Singh v. State of Manipur,(2012) 7 SCC 181:
"the rule of estoppel between landlord and tenant continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord. The estoppel would cease to operate only on the tenant openly restoring possession by surrender to the landlord."
6. This was in the context of tenant resisting an action for eviction filed under A.P.Rent Control legislation on the ground that he had himself purchased a share in the property form one of the co- onwers. Raising the question whether a purchase of a share from the owner of the property by a tenant could cause a merger of interest as co-owner of the property, the Supreme Court referred to the above judgment said in Pramod Kumar Jaiswal v. Bibi Husn Bano, (2005) 5 SCC 492:
"On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same C.R. No.5383 of 1999 -6- time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continues and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision."
7. The learned senior counsel appearing for the tenant contends in the alternative that the original landowner has recognised him as his tenant and that he had been collecting rent from him. A land owner without ejecting his own tenant, who is a landlord in this case, cannot make possible for a sub-tenant to contend that he has become his tenant, nor indeed could he by making him a co-owner empowering him to resist an action for eviction.
8. Learned Senior Counsel pleads that in the demised premises, he has incurred lot of expenses and he had established an oil mill. This fact itself is disputed by the counsel for the respondent but I am not prepared to examine this at all, for no equity can exist beyond the realm of law (Lakshminrayan R.Bhattad v State of Maharashtra (2003) 5 SCC 413). If there is ever a conflict between law and equity, law must prevail. Learned counsel appearing for the respondent states that the case has been going for more than two decades and the landlord is out of possession. In Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689, the Supreme Court has expressed the anguish about how execution process takes a long time and judgment debtors C.R. No.5383 of 1999 -7- scuttle the process of law by wily ways. The Supreme Court has underscored the fact that even execution petition is unnecessary in the scheme of Civil Procedure Code. The Court was pleading for a seamless procedure from the stage of original institution to the stage when decree is executed. The Court has observed that many Courts believe that rendering of the decision constitutes a terminus quo of litigation. On the other hand, it is the daily experience that it is only after the grant of decree that commences a fresh start of litigation process. The Supreme Court's pronouncement was in the context of a final decree in a partition action where a person, who was entitled to possession was kept out of possession from the property for more than 20 years and it was directing the Executing Court to allow for the process to be taken up on its own motion and deliver possession of the property at the earliest. I will sensitize the parties and Court below to the observations made by the Supreme Court in the aforesaid case and ensure a meaningful conclusion to this proceeding, which has started more than two decades back by ensuring the fruits of the decree to be rewarded to the decree holder without undue delay.
9. The order of eviction passed was perfectly justified, for the points of law urged by the learned Senior Counsel have absolutely no application to the case and the tenant is liable to be evicted. The civil revision is accordingly dismissed.
(K. KANNAN) JUDGE August 30, 2012 Pankaj*