Neera Kheti vs Sadhu Singh on 2 April, 2012

[Cites 12, Cited by 2]

Punjab-Haryana High Court

Neera Kheti vs Sadhu Singh on 2 April, 2012

1. The present revision petition is filed against order dated 21.12.2011 passed by the Rent Controller, Phagwara whereby the ejectment petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the 'Act') filed by the NRI landlord has been allowed after full-fledged trial and the tenant had been ordered to be evicted and directed to hand-over the vacant possession of the premises in question within a period of 3 months. The landlord filed the petition for ejectment of the tenant from the building known as 'Atwal Building' shown in red colour in the site plan and the boundaries of which were depicted in the ejectment petition.

2. The landlord-respondent, in his petition, pleaded that he had purchased the property along with his sons, Gurmajor Singh and Jasbir Singh and his wife, Nasib Kaur vide registered sale deed dated 27.05.1971 and Nasib Kaur died on 06.04.2002, and therefore, the petitioner was the co-owner of the said property along with the other joint owners from 27.05.1971. It was alleged that the landlord was a non-resident Indian and temporarily settled in England and the other co-owners are the sons of the CR No.1524 of 2012 2 non-resident Indian, copy of the passport was appended with the petition. The possession was, accordingly, sought on the ground that he requires the premises in question for opening a hospital in the name of his wife, Nasib Kaur. It was contended that his daughter-in-law was running a nursing home in the name and style of "Raj Nursing Home, 31-35 Osterley Park Road, Southhall, Middx, UB2 4 BN (England)". The landlord wanted to open a hospital in the property in dispute and since there was suitable space for hospital the landlord required the property for himself and his family members for residence purpose and for starting a big hospital for which he had good capacity to spend foreign exchange. It was also contended that the landlord had already filed a petition for ejectment against the tenants of 3 shops which were part and parcel of the building in question and he had filed no other petition under Section 13-B of the Act.

3. The leave to contest having been granted, the written statement was filed by the tenant and it was pleaded that the landlord does not fall under the ambit of Non-Resident Indian and he was a citizen holding a British passport and was not a citizen of India and could only visit India after obtaining Visa, and therefore, he could not get the premises vacated for his daughter-in-law and was estopped by his act and conduct as he has shown his desire to dispose of the property in dispute. Reference was made to letter dated 28.11.1978 wherein he has written a letter to his 5 tenants to enhance the monthly rent of the respective portions in their possession in the building known as Atwal Building and that he would not ensue any legal proceedings against them. The relationship of landlord- tenant was also contested on the ground that he was not the owner of the suit property and he should prove the same whether the suit property falls in CR No.1524 of 2012 3 khasra No.3826 bearing khewat No.1 khatauni No.78 as the said khasra number fell to the Provincial Government and the landlord had no right and title in the said khasra number. It was pleaded that the sale deed propounded by the landlord did not relate to khasra No.3826. It was, however, admitted that the daughter-in-law of the landlord was running a nursing home in United Kingdom but it was denied that the landlord wanted to open a hospital in the premises in question.

4. The landlord filed a replication and denied the factum of letter dated 28.11.1978. The allegation that khasra No.3826 fell to Provincial Governant was denied by alleging that jamabandi is not a document of title and the landlord had rented out the disputed property and the tenants used to pay rent. The sale deed vide which the landlord purchased the property in question was a registered document and the property was a few yards from the office of SDM and Patwari Halka and no official had raised any objection that the property was the ownership of Provincial Governant. Accordingly, it was pleaded that the Provincial Government had no concern with the disputed property and the landlord was the owner cum landlord on the strength of a registered sale deed and he required the premises for his own use and occupation.

5. On the basis of the said pleadings, the Rent Controller, Phagwara framed the following issues:

1. Whether the petitioner is owner of demised property for the last 5 years before filing the present petition?

2. Whether the respondent No.1 is N.R.I. and has returned back to India? OPA

3. Whether the petitioner requires the demised premises for his own personal use and occupation? OPA

4. Whether the petition is bad for non-joinder of other CR No.1524 of 2012 4 alleged co-owners? OPA

5. Relief?

6. Thereafter, 3 witnesses were examined by the landlord and 2 witnesses were examined by the tenant.

7. The Rent Controller, Phagwara, on the basis of the evidence on record, came to the conclusion that the landlord was a Non-Resident Indian as provided under Section 2 (dd) of the Act and in view of the observations in Baldev Singh Bajwa Vs. Monish Saini 2005 (2) Supreme Court Cases 778 and Sohan Lal Vs. Swaran Kaur 2003(2) Rent Control Reporter 407.

The ownership of the landlord was held to be proved on the strength of the sale deed, Exhibit P1 to P4 and the site plan, Exhibit P5. It was noticed by the Rent Controller, Phagwara that originally the tenant had admitted that the landlord was not the absolute owner and was a co-owner in para No. 4(b) and subsequently in the amended reply, had also amended para No. 4(b) for which no permission had been granted to deny the ownership. In the earlier written statement filed in civil suit No.44 dated 08.04.1994, the ownership of the premises had been admitted by the tenants, and therefore, it was held that the report of Sodhi Singh, Patwari was of no help to the tenants. The submission of the counsel for the tenant regarding the use of property for residential purposes whereas it was used as a school and was being used for a non-residential purpose and that there was a violation of Section 11 of the Act was also rejected in view of the right under Section 13-B of the Act to get ejectment by the NRI landlord of a residential building or a scheduled building or a non-residential building. The bona fide requirement was also up-held and it was observed by the Rent Controller, Phagwara that under Section 19 (2-B) and Sub-clause (3) of Section 13-B of the Act, there was sufficient protection granted to the tenant CR No.1524 of 2012 5 in case the landlord did not occupy the premises and did not use it for the purpose for which he got it vacated and after taking into consideration the present case of the landlord from the Visa and the passport, it was held that he had been visiting India often and thus, fulfilled all the requisite conditions prescribed under Section 13-B of the Act. The observations of this Court in Inderjit Sharma Vs. Moti Lal 2009 (2) Rent Control Reporter 553 regarding the right of the co-owner to seek ejectment, was also taken into consideration and accordingly, the ejectment petition was allowed. Resultantly, the present revision petition has been filed.

8. Counsel for the tenant-petitioner has contended that the Rent Controller, Phagwara has not conclusively held that the landlord was the owner of the property and there was a report of the Patwari on the record to show that the land belonged to the Provincial Government, and therefore, once the ownership was in dispute, the ejectment under Section 13-B of the Act had to fail because under Section 13-B of the Act, the pre-condition is that the person has to be the owner of the property for more than 5 years. The said submission, on the face of it, is not acceptable in the present case. The landlord has appeared and submitted his affidavit and appended the sale deed, Exhibits P1 to P4 to show that he along with his wife, Nasib Kaur and sons, Gurmajor Singh and Jasbir Singh were co-owners of the property purchased on 27.05.1971. He had also produced on record the death certificate of Nasib Kaur, Exhibit P7 and Gurmajor Singh, Exhibit P8 and deposed that he wanted to open a hospital in the name of his wife and for residence purpose.

9. Counsel for the petitioner referred to the photostat copies of the record to press-forth his case. The pleadings show that initially there was CR No.1524 of 2012 6 an admission regarding the tenancy in the written statement filed by the tenant. Para No.4(b) of the petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 reads as under:

"4. That the petitioner is entitled to the immediate possession of the premises in dispute on the following ground:

(b) That the petitioner is owner of the building in dispute since 27.05.1971 (Copy of sale deeds attached) i.e., the petitioner is having ownership rights of the property in dispute from the last more than five years from the day of filing the present petition."

Reply to the same reads as under:

"(b) That in reply to sub clause (b) of Para No.4 of the petition, it is submitted that petitioner is not absolute owner but he is co-owner."

Amended reply reads as under:

"(b) That in reply to sub clause (b) of Para No.4 of the petition, it is submitted that petitioner is not absolute owner of the property in dispute rather provincial government is the owner of the suit property. The detailed reply is given above."

The Rent Controller, Phagwara has noticed that initially, in the reply dated 19.11.2004, the stance was taken that the landlord was not the absolute owner but a co-owner. Thereafter, permission to amend the written statement was taken but para No.4 (b) was also amended though there was no specific permission granted and since an admission had already been made regarding the ownership but in spite of that, the ground was taken that the Provincial Government was the owner in the second reply dated 23.04.2007.

10. The tenant, in her cross-examination, relied upon demarcation report, Exhibit R2 and contended that the sale deed did not pertain to khasra No.3826 and the landlord is not the owner of the property. In cross- CR No.1524 of 2012 7 examination, she admitted that she was a widow of Rajiv Kheti who she married in 1981 and was residing in the house at Model Town, Phagwara and her father-in-law had taken the property in dispute on rent but she did not know as to when and from whom her father-in-law took the property on rent and she also did not know as to who was the owner of the property in dispute at that time. Subsequently, she clarified that the Government was the owner of the property in dispute and that one Gurinder Singh used to collect rent from her but she could not tell on whose behalf he used to collect the rent. She denied that the landlord-Sadhu Singh had filed an application for ejectment against her father-in-law and whether Sunder Kheti widow of Ram Murti Kheti had filed civil suit which was decided on 24.11.1994. She did not know whether the building was known as Atwal Building but now it is known as 'New Public School'. The letter, Exhibit PX was claimed to be of her father -in-law and she had no personal knowledge of the letter and she did not know the date and month when the marriage of her sister-in-law took place and whether the landlord, Sadhu Singh had filed any ejectment petition against Smt.Sunder Kheti and her in 1996. She, however, in her cross-examination, admitted that she had filed written statement in rent case bearing No.44 dated 08.04.1994 and the certified copy was Exhibit R1/A1 and she denied that she had tendered the rent in the said ejectment petition. Specific Court question was put to her which reads as under:

Question: Is it correct that you always admitted the ownership of the petitioner in the earlier ejectment application filed by Sadhu Singh against me?

Answer: I never admitted the ownership of Sadhu Singh qua the property in dispute against myself being landlord and tenant. I admitted Exhibit R1/A1 to be correct. Ram Murti CR No.1524 of 2012 8 Kheti was my father-in-law. The tenancy was agreed as Ram Murti Kheti. It was wrong to suggest that the petitioners are the owners of the disputed property.

11. Thus, from the cross-examination of the tenant, it would be clear that there was earlier a dispute between the landlord-tenant and Sadhu Singh, the landlord had filed an ejectment petition bearing No.44 dated 08.04.1994 on various grounds in which, in the rent petition, he pleaded that Ram Murti Kheti, now deceased since 17.05.1981 and represented by his LRs had taken portions of the Atwal Building situated at Bank Road, Phagwara at a monthly rent of Rs.500/- per month on March, 1966. Ram Murti Kheti died in the year 1981 and on his death, his legal heirs became tenants by operation of law. In the said petition, the present tenant, Neera Kheti was also arrayed along with her minor sons as respondents No.4 to 6.

In the written statement filed, defence was taken that in New Public School, Principal Ram Murti Kheti was tenant and he had paid the rent as Principal of Ram Murti High School and after the death of Ram Murti Kheti, the Principal was Smt.Sunder Kheti, widow of Ram Murti Kheti. It was specifically pleaded that the premises were given on rent for the purpose of running a school. The landlord had pleaded specifically in para No.2 that the building was purchased by the applicants and this fact was admitted in the written statement. The relevant pleadings are reproduced as under:

"2. That the said building was purchased by the applicant in due course after the creation of the said tenancy and therefore, Shri Ram Murti Kheti attorned the applicants as his landlords and himself as a tenant under the same terms and conditions."

The same was replied as under:

"2. That para No.2 of the petition is admitted to the extent that the premises has been purchased by the applicants. The CR No.1524 of 2012 9 rest of the para is denied. As has been stated above, it is the New Public School & its Principal, Sh.Ram Murti which is the tenant and throughout, it was being so admitted even by the petitioners. He i.e. Ram Murti paid the rent and received the receipts as Principal, New Public High School."

12. Therefore, keeping in view the earlier litigation into account between the parties and the factum that there was admission of the ownership in the written statement filed in the earlier ejectment petition, the submission made by the counsel for the tenant that the landlord had failed to prove his ownership and the ownership of Provincial Government is of no help. Section 116 of the Indian Evidence Act, 1872 specifically provides that a tenant is precluded from denying the title of a landlord and in the present case, the tenancy relates way back to 1966 and created in favour of the father-in-law of the tenant and it would be clear from her cross- examination which has been discussed in detail above that the stand taken by her was totally contrary to the one taken by her inter se the parties. The Hon'ble Apex Court in Anar Devi Vs. Nathu Ram 1994 (4) SCC 250 & in E.Parashuraman (D) by Lrs.Vs. V.Doraiswamy (D) by Lr. 2006 AIR (SC) 376 has held that a tenant cannot be permitted to deny the title of the subsequent landlord. The relevant paragraphs of judgment passed in Anar Devi's case (supra) is reproduced as under:

"11. "Doctrine of tenant's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them, is well settled. Jessel, M.R., who adverted to that doctrine in Stringer's Estate Shaw v. Jones-Ford, LR 6 Ch.D.1, explains it thus:

".......Where as man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title, as, for instance, if he takes for CR No.1524 of 2012 10 twenty-one years and he finds that the landlord has only five years' title, he cannot after five years set up against the landlord the jus tertil, though, of course, the real owner can always recover against him. This is a perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well-established doctrine. That is estoppel by contract."

12. Indeed, the said doctrine of tenant's estoppel, finds statutory recognition in Section 116 of the Indian Evidence Act, 1872, for short 'the Evidence Act', in that, it states that '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.'

13. This Court in Sri Ram Pasricha v. Jagannath and others, AIR 1976 SC 2335, has also ruled that in a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Krishna v. Barabani Coal Concern Ltd., AIR 1937 PC 251, when had occasion to examine the contention based on the words 'at the beginning of the tenancy' in Section 116 of the Evidence Act, pronounced that they do not give a ground for a person already in possession of land becoming tenant of another, to contend that there is no estoppel against his denying his subsequent lessor's title. Eversince, the accepted position is that Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot CR No.1524 of 2012 11 be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."

Section 116 of the Indian Evidence Act, 1872 reads as under:

"S. 116. 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 immovable property; and no person who came upon any immovable property by the license 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 license was given."

Admittedly, in her cross-examination, she herself has stated that the landlord is not the owner of the property and that Provincial Government is the owner of the property relying upon the report of Patwari. The same is of no help since in the cross-examination of the Patwari, it has come on record that he did not go to the spot to demarcate the spot and no person was called from the locality and he was not aware whether there was any sale deed in favour of the landlord with regard to the disputed property. It was also come in evidence that in the absence of the permission from the Financial Commissioner, Phagwara, he was not competent for demarcation being junior to the Kanungo. He also did not know who has got constructed the building Ram Murti Public School and he had no knowledge whether there was any sale deed executed in favour of the landlord. In the report, he admitted that he had not given any details of any pucca points. Thus, the report of Patwari relied upon by the tenant is of no help to him. Therefore, the submission made by the counsel for the petitioner that the respondent is not the owner of the property is without any basis. Once inter se between the parties, specific stand has been taken and the ownership had been admitted in an earlier rent petition, the tenant could not, in a subsequent petition, turn-around and deny the title and was estopped from her own act CR No.1524 of 2012 12 and conduct.

13. The Rent Controller, Phagwara has also discussed in detail the other mandatory requirements of Section 13-B of the Act which have been fulfilled. It has been proved and brought on record that the landlord is holding a British passport bearing No.094085774 issued by the United Kingdom of Great Britain and Northern Ireland and his place of birth is Village Birk, District Jalandhar, and therefore, he is a person of Indian origin. He has shown his intention to come back to India for starting a hospital in the name of his deceased wife and it is pleaded that his daughter- in-law is also running a hospital in United Kingdom. He also wants the premises for residing and thus, his intention to come back to India is clear. The ownership of 5 years prior to the filing of the ejectment petition is clear from the record and there is a presumption that the premises were required for the personal use and the bona fides under Section 13-B of the Act is proved as noticed by the Rent Controller, Phagwara. The observations of the Hon'ble Supreme Court in Baldev Singh Bajwa's case (supra) have been rightly kept in mind and reproduced in detail in the impugned order passed by the Rent Controller, Phagwara which need not be repeated.

14. Keeping in view the facts and circumstances, no illegality or irregularity can be found in the order of the Rent Controller, Phagwara allowing the petition under Section 13-B of the Act. Accordingly, the present revision petition is dismissed in limine and the order of the Rent Controller, Phagwara is up-held. However, the petitioner is given 3 months time to vacate the said premises from today.


02.04.2012                                         (G.S.SANDHAWALIA)
sailesh                                                  JUDGE

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