Punjab-Haryana High Court
Jagdish Parshad vs Trilok Chand on 30 May, 2012
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
C.R. No. 5569 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No. 5569 of 2008
DATE OF DECISION: May 30th, 2012
Jagdish Parshad .........PETITIONER(S)
VERSUS
Trilok Chand ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. M.L. Sarin, Sr. Advocate,
with Ms. Himani Sarin, Advocate,
for the applicant-petitioner.
Mr. Arun Palli, Sr. Advocate,
with Mr. Divanshu Jain and Mr. Suvir Kumar, Advocates,
for the respondent.
G.S. SANDHAWALIA, J.
1. The present revision petition has been filed by the tenant, who is aggrieved against the findings recorded by the authorities below by virtue of which the ejectment application of the respondent-landlord has been allowed.
2. The ejectment application had been filed under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called 'The Rent Act') by the landlord-respondent on the ground that Jagdish Parshad was the tenant of the rented land shown by letters ABC in the site plan filed alongwith the petition at a monthly rent of `200 and the land was in the shape of a triangle measuring 10' x 7-1/2' and out of this area, the C.R. No. 5569 of 2008 2 Municipal Committee, Rewari had encroached upon 2-1/2' area for constructing a drain. The ground of ejectment was that the rent was not being paid and material alteration had been done. The rent note was dated 16.06.1987 for 11 months in favour of the previous landlady Bhagwati Devi and in the rent note, it was mentioned that the tenant would use the rented land by placing rehri and would not raise any construction on the land and the tenant had raised construction on the rented land without the prior permission of the landlord and, therefore, changed the nature of the rented land as well as impaired the value and utility of the rented land.
3. The ejectment application was contested by filing written statement and taking the stand that the landlord had no locus standi to file the petition and the same was not maintainable as there was litigation regarding title of the disputed property with the Municipal Committee, Rewari and was bad for non-joinder of parties. The petition was liable to be dismissed on the principle of res judicata and the ownership was of the Municipal Committee of land situated in Khasra No. 164/43 at Narnaul Chowk, Rewari and it was denied that the tenant had been rented out the land measuring 10' x 7-1/2' bearing red colour by Bhagwati Devi marked ABC for `200 per month and the site plan was incorrect. It was contended that the tenant after fulfilling the requisite fee and proceedings of the site plan, had constructed his own sweet shop before 26.03.1996 and the property vested with the Municipal Committee and the landlord had no concern with ownership and possession. Initially the following issues were framed by the Rent Controller:-
"1.Whether respondent has been using the demised premises for the purpose other than for which it was let out, if so its what C.R. No. 5569 of 2008 3 effect? OPA
2. Whether the respondent has impaired the value and utility of demised premises? OPA
3. Whether petition is not maintainable in the present form? OPR
4. Whether the petition is bad for non-joinder of necessary parties? OPR'
5. Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPR
6. Whether the petition is barred by principles of res-judicata? OPR
7. Relief."
4. The landlord examined as many as thirteen witnesses and closed his evidence on 10.10.1998 and the tenant was given six opportunities and his evidence was closed on 15.04.1999 by order of the Rent Controller. Eventually, the order of eviction was passed on 08.12.1999. That on 30.08.2005, the appellate authority set aside the order of eviction and remanded the case to the Rent Controller directing him to afford one effective opportunity to the tenant for adducing his evidence and to decide the eviction petition in the light of the evidence of both the parties and the parties were directed to appear on 16.09.2005 before the Rent Controller, Rewari. The said order was challenged by the landlord by way of filing Civil Revision No. 39 of 2006, in which notice of motion was issued on 09.01.2006 and passing of the final order was stayed on the ground that the appellate authority had no power to remand the case and only had jurisdiction to seek report if it was satisfied that the additional inquiry was required to be made. In the interregnum, the Rent Controller examined five witnesses of the tenant and cross examination was conducted C.R. No. 5569 of 2008 4 on 22.03.2007 but in view of the final order being stayed, the matter was adjourned from time to time. On 06.12.2007, Civil Revision No. 39 of 2006 titled Trilok Chand vs. Jagdish Parshad was decided alongwith Civil Revision No. 3778 of 2006 and this Court, keeping in view the Division Bench judgment of this Court in Raghu Nath Jalota vs. Romesh Duggal and another, 1979 (2) RCR 501 came to the conclusion that the appellate authority had either to hold further inquiry in the matter itself or to call for the report of the Rent Controller and thereafter decide the case on merits. The conclusion part of the judgment reads as under:-
"For the reasons stated above, these two revision petitions are allowed. The order passed by the learned Appellate Authority is set aside and the case is remanded back to the Appellate Authority, Hisar, to adjudicate the appeal on merits. It shall, however, be open to the Appellate Authority either to hold enquiry itself or call for the report from the Rent Controller and thereafter dispose of the appeal on merit in accordance with law.
The parties through their Counsel are directed to appear before the learned Appellate Authority, Hisar, on 21- 12-2007."
5. Accordingly, since it was directed that the appellate authority would decide the appeal on merits after either holding further inquiry itself or calling for the report from the Rent Controller and in the meantime, the evidence had already been led before the Rent Controller, the appellate authority, keeping in view the directions of this Court, ordered that it would be appropriate to summon the report from the Rent Controller on the basis C.R. No. 5569 of 2008 5 of the additional evidence adduced by the parties. Accordingly, the Rent Controller was directed to submit the inquiry report on the basis of the additional evidence led by the parties. The appellate authority accordingly adjourned the case for awaiting the inquiry report from the Rent Controller. The relevant part of the order dated 09.04.2008 is reproduced as under:-
"But in the instant case, the parties have already led additional evidence before the learned Rent Controller on which the Rent Controller has not given any findings. The Hon'ble High Court has kept it open to call for the enquiry report from the Rent Controller. It will be appropriate to summon the report from the Rent Controller on the basis of the additional evidence adduced by the parties. The record of the learned Rent Controller be sent back and the learned Rent Controller is hereby directed to submit the enquiry report on the basis of the additional evidence led by the parties. The report be submitted within a period of fortnight. Now to come upon 02-05-2008 for awaiting of the enquiry report from the learned lower Court."
6. In pursuance of the directions of the appellate authority dated 09.04.2008, the Rent Controller gave a detailed inquiry report dated 24.08.2008 and came to the conclusion that the tenant had denied the relationship of landlord-tenant. It noticed that from the rent note Ex. AW2/1 and the admission of the respondent in the rent petition of the year 1988 placed on file as Ex. AW9/4 and the statement of the tenant in the earlier proceedings between the parties and held that there was a relationship between the parties of landlord-tenant. It was also noted that C.R. No. 5569 of 2008 6 the tenant had produced evidence in the form of statements of RW-4 and RW-5 that the land falling in Rec. No. 164/43 had been got vacated by the Municipal Committee, Rewari and they had constructed 12 shops which were rented out and some portion remained vacant including the disputed premises. That the tenant had filed civil suit against the Municipal Committee, Rewari and thereafter he became directly the tenant of the premises and also of other land and thus the possession as on date of the tenant was more than the area rented out by the landlord. It was held that since the landlord had claimed eviction order from the land rented out and the Rent Tribunal could only pass the order from the premises rented out, the remedy regarding the balance land lay with the civil court. Since the tenant had never surrendered the rented land in favour of the landlord and become the tenant of the Municipal Committee, therefore, he would continue to be the tenant of the landlord and reliance was placed upon Gian Chand vs. Shakti Chand, 1986 HRR 313. It was accordingly held that on the earlier occasion in the year 1998 when a rent petition had been filed by the landlord for ejectment on the ground of non-payment of rent, he had tendered rent and had not denied the relationship. Thus there was an admission and there was no dispute about the description of the premises shown in the site plans as Ex. AW5/1, AW7/1, AW4/1 and the site plan submitted by the tenant showed the existing position in which he was having possession including the premises in question. The material impairment was admitted and well proved in view of the rent note Ex. AW2/1 that the vacant land was given to the respondent to use it to keep his rehri and there was a bar from raising any construction and there was an admission that the tenant had raised construction without the consent of the C.R. No. 5569 of 2008 7 landlord which had come in his cross examination and also in the statement of Om Parkash-RW-4. Accordingly, it was held that the act of the respondent clearly amounted to material alteration. Reliance upon the judgments relied upon by the tenant were held to be not applicable and accordingly, the Rent Controller came to the conclusion that the tenant had raised construction without the consent of the landlord and against the terms and conditions of the rent note and had neither surrendered the possession before becoming the tenant of the Municipal Committee, Rewari and, therefore, the landlord was entitled for ejectment order against the premises let out by him as shown in the site plan as Ex.AW7/1.
7. The tenant challenged the findings before the appellate authority who dismissed the appeal on 08.09.2008. That the appellate authority took into consideration the earlier rent petition between the parties bearing No. 476 of 1998 whereby, the tenant had tendered the rent and admitted the relationship of landlord-tenant and that the petition was dismissed on 21.08.1998 and the rent note was admitted in another petition in the year 1996 and the statement of the tenant was on record as Ex. AW9/1 and Ex. AX/2. The factum of rent note being proved by AW-2, Chaterbhuj, the Deed Writer, was also noticed and the fact that it was prepared on the instructions of Jagdish Parshad, the tenant himself and the attesting witness of the rent note AW-3 Lala Ram also supported the case of the landlord alongwith the statement of AW-4 Rajpal Yadav, who prepared the site plan AW4/1 in the case titled as Trilok Chand vs. Jagdish Parshad and the statement of draftsman Subhash Chander AW-5, who had prepared the site plan Ex. AW5/1 in the suit titled Jagdish Parshad vs. Municipal Committee. The fact that the tenant had constructed a pacca shop without C.R. No. 5569 of 2008 8 the landlord's permission on the vacant land amounted to materially impairing the value and utility of the rented land and reliance was placed upon various authorities by the landlord. The appellate authority took into consideration the judgments of the Hon'ble Apex Court in K.D. Dewan vs. Harbhajan S. Parihar, 2002 (2) PLR 682 to hold that the definition of landlord would entitle any person who was entitled to receive the rent in respect of the building to be the landlord and also relied upon Smt. Inderjit Kaur and others vs. Baij Nath, 2003 (2) RCR 242. Reliance was also placed upon Full Bench judgment of this Court in Ajay Kashyap vs. Smt. Mohini Nijhyawan, 2004 (1) RCR 349; Mohan Lal vs. Amrik Singh and others, 2008 (1) HRR 116 and judgment rendered by Hon'ble Supreme Court in E. Parashuraman (D) by Lrs. vs. V. Doraiswamy (D) by L.R., 2006 (1) HRR 55. Reliance was also placed upon Atma Ram (Hoshiarpur) vs. Bakshish Singh, 1986 HRR 325 to hold that once the tenant had admitted himself to be a tenant, he could not be allowed to challenge the title of the landlord and reliance was placed upon Sudama Parshad vs. Surinder Kumar and another, 1988 HRR 265. Similarly, in the proposition that the tenant could not hold that third person was the landlord without surrendering the possession of the shop to the landlord, reliance was placed upon Gian Chand vs. Shakti Chand, 1986 HRR 313 and on the issue that the tenant could not deny the title of the landlord, reliance was placed upon Smt. Anar Devi vs. Nathu Ram, 1994 HRR 427 and The Administrator, Municipal Committee, Thanesar vs. Lakshmi Chand of Thanesar, 1983 HRR 269 and accordingly appellate authority also took into consideration that there was no cross examination of AW-2, AW-5, AW-6, AW-9, AW-10 and AW-12 on the part of material alteration and, therefore, C.R. No. 5569 of 2008 9 the tenant could not deny the title of the landlord and he had materially impaired the value and utility of the rented land and was liable to be ejected on this score. The findings were accordingly upheld.
8. Aggrieved by the report of the Rent Controller and the dismissal of his appeal, the present revision petition has been filed.
9. Learned senior counsel for the petitioner Mr. M.L. Sarin, Advocate assisted by Ms. Hemani Sarin, Advocate has vehemently argued that the order of the appellate authority is a non-speaking order and only affirms the order of the Rent Controller and has placed reliance upon Balraj Taneja and another vs. Sunil Madan and another, AIR 1999 SC 3381 and Karnataka State Road Transport Corporation vs. Smt. Asmathunnisa and others, 2000 (1) PLR 234 to contend that the judgment under Order 40 Rule 4 (2) is not reasoned and the courts had only discussed the arguments of the parties and it should be self contained and there should be a process of reasoning and the appellate authority being the final Court of fact had not passed a reasoned order. Much stress was laid on the absence of relationship of landlord and tenant between the parties and reliance was placed upon the judgment of the civil court Ex. AX/4, which was a suit for permanent injunction filed by Jagdish Parshad, the tenant against the Administrator, Municipal Committee, Rewari and where the landlady Bhagwati Devi was arrayed as defendant no. 3 and it was contended that in the said judgment, it has been held that the plaintiff has failed to prove that the suit property was let out by Bhagwati Devi and an injunction had been granted against defendants no. 1 and 2 only and restraining the Municipal Committee from dispossessing the plaintiff except in due course of law. Stress was laid on the statement of RW-4 Om Parkash made before the Rent C.R. No. 5569 of 2008 10 Controller to contend that 12 shops had been given on rent in the year 1995 @ `576 (receipts Ex. RW4/1 to Ex. RW4/24) and `60,000 had been given as security and the ownership of khasra no. 164-43 was of the Municipal Committee, Rewari, who demolished the shops in 1995 and thereafter rented them out vide resolution Ex. RW4/25 and RW4/26. Accordingly, it was contended that 21.72 square yards of land had been rented out vide resolution dated 28.02.1996 which had been approved on 12.03.1996 by the Municipal Committee, Rewari and there was an order dated 23.06.1999 Ex. R-6 passed by the Deputy Commissioner, Rewari that the landlord was not the owner of the property. It was first submitted that there was no title of the respondent and, therefore, merely because in earlier proceedings tender had been made of rent, would not make the respondent a landlord and the said tender of rent was only to avoid ejectment at that stage and reliance was placed upon Mahant Sarju Dass Chela Janaki Dass vs. Jia Lal of Hoshiarpur, 1990 HRR 34. It is further submitted that in case both the respondent and the Municipal Committee were owners, permission had been given by one landlord and, therefore, once one of the landlords had granted permission and there was no challenge to the resolutions, therefore, the tenant was not liable for eviction as the other co-owner had waived his right. Reliance was placed upon Smt. Ram Piari vs. M/s. Delhi Fruit Company and others, 1980 (1) RCR 512, Ram Lal vs. Gurbax Singh, 1984 (2) RCR 14, Krishan Kumar and another vs. Kashmiri Lal, 2003 (1) RCR 690, Brijendra Nath Bhargava and another vs. Harsh Wardhan and others, 1988 (1) SCC 454. The last submission of the counsel is that the rent note Ex. AW2/1 was signed by both the parties and, therefore, had to be registered and reliance is placed upon Choeth Ram vs. Shri Deep Chand C.R. No. 5569 of 2008 11 Jain and another, 1977 RCR 499, Subhash Chand Jain vs. The Ist Additional District & Sessions Judge, Saharanpur, 1989 HRR 152, Shivala Damodar Dass vs. Ramji Dass and others, 2003 (1) PLR 225, Ali vs. Vasudevan, 1989 (2) RCR 322. Counsel for the petitioner has also submitted that connected civil revision petition No. 6174 of 2005 stands admitted and, therefore, the present petition should also be heard alongwith the said petition as it had been ordered on 07.02.2011 that the case should be heard alongwith the said case. It is also submitted that the report was wrongly sent by the Rent Controller to the appellate authority and it was the appellate authority who was to hold further inquiry in pursuance of the orders of this Court.
10. Mr. Arun Palli, Sr. Advocate assisted by Mr. Divanshu Jain and Mr. Suvir Kumar, Advocates, on the other hand, submitted that once the tenant had been inducted and continued as such, he had no right to question the title of the landlord and pointed out that there was a suit filed on 04.03.1987 in which, it was submitted that the tenancy had been created on 01.05.1986 @ `150 per month wherein the tenant could only put a rehri on the land in dispute. The statement of Jagdish Parshad as Ex. PW-2 in the civil suit for permanent injunction against the Municipal Committee recorded on 14.01.1992 Ex. AX-3 was referred to where he himself had deposed that he was a tenant in possession. Accordingly, it is submitted that the tenant had to surrender his possession before creating any other relationship with another person. The Municipal Committee had to take possession from the respondent and then give possession to the tenant which was never done. Reliance is placed upon Bal Kishan vs. Vasu Deo, 1997 (2) RCR 92. Secondly, it is submitted that even if there was no proof C.R. No. 5569 of 2008 12 of title and even if the revenue record showed that the Municipal Committee was owner, the tenant could not question the title of the landlord. It is pointed out that in the civil suit, the landlord-defendant no. 3's wife had been deleted at the own asking of the tenant which would be clear from Ex. AX/4 that Bhagwati Devi was given up on 08.12.1993 and accordingly it is contended that the findings recorded in the said judgment could not be res judicata inter se the parties. Thus, it is submitted that the Municipal Committee could take steps to file a suit for possession in case there was any dispute for title but it has never been done.
11. Reference was made to the rent note Ex. AW2/1 dated 16.06.1987 which had permitted only the use of rehri to the tenant and he could not raise any construction, whether it was permanent or temporary. Reference is also made to the cross examination of Jagdish Parshad, the tenant himself, whereby he had admitted that no permission was obtained for construction from Bhagwati Devi and that he had been in possession since 1986 but had never handed the possession back to the landlords and where he had also admitted that the rent deed was there but it had been got executed by misrepresentation and rent was being paid and had also been tendered in Court. Accordingly, it is submitted that there is no averment in the written statement regarding the alleged misrepresentation and similarly, reference is also made to the first petition filed under Section 13 of the Rent Act dated 28.10.1995 Ex. AW6/1 and the rent tendered on 29.01.1996 after assessment before the Rent Controller Ex. AX/2. Similarly, the second petition, in which the statement was recorded of Jagdish Parshad on 21.08.1998 Ex. AW9/4 wherein, he had tendered the rent and the petition was dismissed being fully satisfied to submit that he had opted to give the C.R. No. 5569 of 2008 13 rent and not to contest the petition and neither any counter claim had been filed to recover the rent of `5,420 and `349 tendered in Court. Accordingly, it is submitted that for the first time in the revision petition it had been put forth that there was a misrepresentation on the basis of which the rent note had been executed between the parties and it was not the case before the Rent Controller and neither in the written statement and in view of Section 116 of the Indian Evidence Act, 1872, he was estopped from doing so. Regarding the resolutions dated 28.02.1996 Ex. RW4/26 and regarding the payment of security of `60,000 and the resolution dated 12.03.1996 pertaining to the area of 21.72 square yards RW4/25, it is pointed out that there was a report of Naib Tehsildar on record as Ex. RW2/1 dated 22.03.1999 wherein, it was clearly mentioned that there were four persons who were in vacant possession and at Sr. No. 4, name of Jagdish Parshad was mentioned and the area also was shown of vacant land which was in his possession. The report of the Naib Tehsildar Ex. RW2/2 and the site plan RW2/3 showed that the 12 shops alongwith a hotel on top were let out by the Municipal Committee, Rewari and from the site plan it would be clear that the same were different from the triangular plot in occupation of the tenant which was shown separately apart from the 12 shops. Accordingly, it is contended that once there was an admission under Section 31 of the Evidence Act, 1872, the tenant was bound by it and he could not be allowed to turn around and reliance is placed upon Nariman Hormusji and others vs. Behram-Gore Pochkhanwala, 2005 (2) RCR 544 and Avadh Kishore Dass vs. Ram Gopal and others, AIR 1979 SC 861. Accordingly, it is submitted that the value and utility of the rented land had been materially impaired as permanent construction had been raised upon C.R. No. 5569 of 2008 14 the plot in question and reliance was placed upon Sudershan Kumar vs. Tejinder Singh, 1987 (2) PLR 44 and Shivala Damodar Dass vs. Shankar Dass and others, 2002 HRR 686. Accordingly, it is submitted that appellate authority had taken into consideration the report dated 24.08.2008 of the Rent Controller and it was to be read alongwith the judgment of the appellate authority and the revisional Court under Section 15(6) of the Rent Act could pass any such orders and reliance was placed upon J.P. Chatrath vs. Shambhu Dayal 1977 (1) RCJ 264. Reliance is also placed upon Vijay Kumar and others vs. Durga Ashram Charitable Trust etc., 2002 (3) PLR 749 to contend that under the Rent Act, the authorities could adopt any procedures contained to make a decision upon the facts and circumstances of the case to do complete justice between the parties to dispel the doubt regarding the area which was sought to be got vacated, the site plan dated 03.03.1987 Ex. AW5/1 prepared by Jagdish Parshad, the tenant in the civil suit filed earlier for permanent injunction was referred to and to point out that Subhash Chand AW-1, the draftsman had prepared it and he had been examined to duly prove the said site plan. Similarly, para no. 3 of the ejectment application, was referred to point out that 10' x 7-1/2' of rented land was the subject matter of dispute out of which 2-1/2' had been encroached upon by the Municipal Committee which was in consonance with the rent note and in which it was specifically described that the property was 10' on the East and 10' on the West and 7'6" on South and reference was made to the ejectment order which was as per para no. 1 of the plaint. The lease deed being only for 11 months, it was not required to be registered and reference was also made that it was in pursuance of the earlier lease deed already in place and there was enhancement of rent from C.R. No. 5569 of 2008 15 `150 per month to `200 per month by virtue of rent deed dated 16.06.1987 Ex. AW2/1 and accordingly reliance was placed upon Satish Kumar vs. Zirif Ahmed, 1997 (3) SCC 679.
12. That counsel for the respondent also pointed out that on 06.12.2011, the connected civil revision petition bearing No. 6174 of 2005 was admitted for hearing and the present case was ordered to be shown in the urgent list by the Co-ordinate Bench of this Court, who was hearing both the civil revisions at that point of time and, therefore, submitted that there the controversy in that case was not similar and accordingly prayed for upholding the orders of the authorities below.
13. The case was heard on various dates and with the assistance of both the counsel, the record was minutely scanned and this Court has come to the conclusion that the factual issue is very limited as mainly the tenant has sought to dispute the relationship of landlord-tenant between the parties. However, a perusal of the record shows that the stand of the tenant cannot be justified. The rent note dated 16.06.1987 Ex. AW2/1 is very specific about the property in question and mentions that the rent had been increased from `150 per month to `200 per month in pursuance of the earlier rent note dated 01.05.1986. The said rent note in the written statement filed had never been disputed by saying that it was a forged and fabricated document or that there was any misrepresentation when it was got executed. The rent note was witnessed by one Lala Ram who was examined as AW-3 by the landlord. Mr. Chaterbhuj, the document writer had been examined as AW- 2 to prove the rent note and he has deposed that the rent note was prepared on the instructions of Jagdish Parshad, the tenant and the contents of the rent note were read over and explained to him. That under Section 116 of C.R. No. 5569 of 2008 16 the Indian Evidence Act, 1872, the tenant cannot challenge the relationship of landlord-tenant. Section 116 of the Indian Evidence Act reads 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.
14. The Hon'ble Apex Court in Smt. Anar Devi's case (supra), the following has been held:-
"13. This Court in Sri Ram Pasricha v.
Jagannath and Ors. AIR (1976) SC 2355, 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. , 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. Ever-since, the accepted position is that Section 116 of the C.R. No. 5569 of 2008 17 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 attainment 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 be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."
15. This is the consistent view which would be clear from the judgment of the Hon'ble Apex Court in E. Parashuraman's case (supra). In the said case also, there was a dispute regarding title and the tenant was raising the plea that the corporation had title to the property in question. Following has been held in the said judgment:-
"16. It was submitted before us that in the facts and circumstances of this case the tenants were justified in challenging the claim of the respondent to be the landlord. It was argued that the tenancy, if any, was created at an earlier stage and thereafter certain developments took place which justified the appellants' challenge to the right of the landlord to seek their eviction. In this context it was submitted that after the court sale, though the name of Doraiswany was added in the record maintained by the Corporation, his name was subsequently deleted. Doraiswamy, thereafter, filed a suit for declaration and also a decree for cancellation of the order deleting his name. The suit was dismissed on the C.R. No. 5569 of 2008 18 ground of want of jurisdiction and the appeal preferred against the said judgment and order was also dismissed. Therefore, it was submitted, that the order of the Civil Court dismissing the suit filed by Doraiswamy attained finality. On the basis of these facts it was contended that Doraiswamy ceased to be the owner of the property and consequently could not exercise the rights conferred upon a landlord by the statute. The submission must be rejected - firstly, for the reason that the landlord under the Karnataka Rent Control Act need not be the owner of the premises. Secondly, the mere dismissal of the suit did not, as a consequence, confer title on the Corporation in respect of the property in question. In fact we have noticed that a subsequent suit filed by the Corporation for a declaration that the sale deed executed in favour of Doraiswamy was null and void was also dismissed. In these circumstances whatever may be the dispute between the Corporation and the respondent, the appellants certainly cannot take advantage thereof, once having admitted that they were inducted as tenants by Doraiswamy, the predecessor-in-interest of the respondent. It is also interesting to note that in the suit filed by the Corporation a prayer was made for a direction to the respondent as well as to the appellants herein to handover vacant possession of the premises to the Corporation. The appellants derive their right to continue in possession of the premises only through the respondent. The judgment relied C.R. No. 5569 of 2008 19 upon by the appellants in D. Satyanarayana v. P. Jagdish, (1987) 4 SCC 424 is clearly distinguishable of title of the respondent, even though there may be some dispute about it with the Corporation. It is well settled that entries in the revenue record may, at times, raise a presumption, but do not conclusively confer title.
17. We have carefully examined the decisions of this Court in D. Satyanarayana v. P. Jagdish (supra) and A.V.G.P. Chettiar and sons and others v. T. Palanisamy Gounder, (2002) 5 SCC 337 and were are of the view that the principles laid down therein are not applicable to the facts of this case. The exception to the rule of estoppel embodied under Section 116 of the Evidence Act arises if it is shown that since the date of the tenancy the title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. Such a situation has not arisen in the instant case. In this case there is no finding that the title of the landlord has come to an end. The Corporation has not established its title in any proceeding in accordance with law. In these circumstances the exception to the rule of estoppel embodied in Section 116 of the Evidence Act cannot be pleaded by the appellants."
C.R. No. 5569 of 2008 20
16. In the present case, it is to be noticed that the tenant himself had filed a suit dated 04.03.1987 for permanent injunction against the Municipal Committee, Rewari in which, he had given up Bhagwati Devi on 08.12.1993. In the said suit which was decided on 18.01.1994, the plaintiff- tenant-Jagdish Parshad had himself pleaded that he was a tenant @ `150 per month under Bhagwati Devi-deceased through Trilok Chand since 01.05.1986 and a khokha of the plaintiff was lying on the suit property in which he was doing the business of cigarettes and bidies. Since the suit had not been pressed against defendant no. 3, the Court had held that the plaintiff had failed to prove that the suit property was let out by Bhagwati Devi but held that the plaintiff was in possession of the suit property. The said findings now cannot be read in such a manner to hold that there was no relationship of landlord-tenant once it was itself held out by the tenant that there was a relationship of landlord-tenant. He is now estopped to take the plea and deny the relationship of landlord-tenant. It is also pertinent to mention that the statement of Jagdish Parshad in a suit for permanent injunction has been exhibited as Ex. AX/3 wherein, he himself deposed that he was a tenant w.e.f. 01.05.1986 @ `150 per month. Even otherwise, in ejectment petition, the tenant had tendered the rent on 29.01.1996 and 21.08.1998 and the said orders have been exhibited as Ex. AW9/1 and Ex. AW9/4 and the translation reads as under:-
"Statement of Jagdish s/o Budh Ram, aged 42 years, shopkeeper, R/o Rewari on S.A. Stated that I am ready to make the payment of rent to the tune of `4,800 for 24 months i.e. from 01.02.1994 to 31.01.1996 @ `200 per month togetherwith interest and cost as the Court may deem appropriate.
C.R. No. 5569 of 2008 21 RO & AC Sd/- Jagdish Parsad Sd/- (In Hindi) R.C. 29.01.1996 Order Ex. AW9/2 Interest 400-00 Cost 220-00 --------- 620-00 Sd/- R.C. 29.01.1996 Ex. AW9/3
Statement of Jagdish s/o Budh Ram, Shopkeeper, R/o Rewari on S.A. Stated that I tender `4,800 as rent, `400 as interest and `220 as cost i.e. total amount of `5,420 for making payment.
RO & AC
Sd/- Jagdish Parsad Sd/-
(in Hindi) R.C.
29.01.1996
Ex. AW9/4
Trilok Chand vs. Jagdish
"Statement of Jagdish s/o Budh Ram, aged 45 years, shopkeeper, resident of Rewari on solemn affirmation.
Stated that I am ready to make the payment of required rent for 14 months from 01.06.1997 to 31.07.1998 @ `200 per month togetherwith interest and cost as the court may deem appropriate to the plaintiff.
RO & AC
Sd/- Jagdish Parsad Sd/-
(In Hindi) R.C. Rewari
21.08.1998
Identified
C.R. No. 5569 of 2008 22
Sd/- (In Hindi)
Order
Interest `149-00
Cost `200-00
---------
Total `349-00
Sd/-
R.C. Rewari
21.08.1998
Statement of Jagdish, defendant on solemn affirmation. Stated that I tender rent to the tune of `2,800, interest to the tune of `149 and cost to the tune of `200 as assessed by the court i.e. total amount of `3,149 for making payment to the plaintiff.
RO & AC
Sd/- Jagdish Parsad Sd/-
(in Hindi)
R.C. Rewari
Identified 21.08.1996
Sd/- (In English)
17. In the said ejectment petitions, the tenant had never opted to contest the relationship of landlord-tenant and to plead and prove that he was not a tenant of Trilok Chand. Even if the respondent did not have title in view of the provisions of Section 2 (c) of the Rent Act, he need not be the owner of the property and that a consistent view has been taken as laid down by the Apex Court in K.D. Dewan's case (supra), the relevant paras read as under:-
"9. Having noticed the definition of the term 'landlord', it will be useful to refer to Section 13(3)(a) of the Act which reads as follows:
"Section 13(1) xxx xxx xxx C.R. No. 5569 of 2008 23 (2) xxx xxx xxx (3) (a) A landlord many apply to the Controller for an order directing the tenant to put the landlord in possession -
(i) in the case of a residential building, if -
(a) he requires it for his own occupation"
10. A plain reading of the provisions extracted above makes it clear that to claim a relief thereunder a person must be a landlord within the meaning of the terms of Section 2(c); his being owner of the premises is neither a pre-requisite nor a relevant factor.
11. Mr. Sharma relied on the following observation of this Court in M.M. Quasim Vs. Manohar Lal Sharma & others :-
"for the purposes of Section 11(1)(c) the expression 'landlord' could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. It is such a person who can seek to evict the tenant on the ground that he requires possession in goods faith for his own occupation."
xxx xxx xxx xxx xxx xxx xxx xxx xxx
15. From the above discussion it follows that such a truncated meaning of the term 'landlord' cannot be imported in clause (c) of section 2 of the Act having regard to the width of the language employed therein and there is no other provision in the Act to restrict its meaning for purposes of Section 13(3) C.R. No. 5569 of 2008 24
(a) thereof to an owner of the premises alone. The appellant has been paying monthly rent of the premises to the respondent from 1976. The respondent is thus the landlord of the premises under the Act and is entitled to seek relief under Section 13(3)
(a) of the Act. In this view of the matter, we find no illegality in the order of his High Court under challenge. The appeal is without merit and it is liable to be dismissed."
18. A Full Bench of this Court in Ajay Kashyap's case (supra) has held that the properties belonging to the Haryana Housing Board would also be governed by the provisions of the Rent Act and the allottees who had rented out the dwelling units constructed by the Housing Board, would be landlords for the said purpose and ownership is not a relevant criteria. Another important aspect which is to be taken into consideration is that once there is a relationship of landlord-tenant between the parties, the tenant could not challenge the title without first surrendering the possession. This Court in Gian Chand's case (supra) while placing reliance on a Full Bench judgment of this Court in Hari Parshad Gupta vs. Jatinder Kumar Kaushik, 1982 PLR 150, held that the tenants could not on their own without surrendering the possession of the shops, atone themselves to the tenants of the Municipal Committee. The submission of the counsel for the tenant that the shops were raised and thereafter they had paid security and rent is also without any basis as the landlord has brought on record evidence to show that there was a report of the Naib Tehsildar to show that the constructed area as put forth by the tenant was of 12 different shops with a hotel on the first floor which was not the subject matter of dispute and was only an effort to confuse the issue of the rented premises. The report which C.R. No. 5569 of 2008 25 was a part of execution proceedings in Ramji Lal vs. Municipal Committee showed that four persons were in vacant occupation of land and the tenant Jagdish Parshad had 162 square feet in his possession whereas 12 shops had been constructed for the other persons. The site plan Ex. RW2/3 which was the part of the report shows the shops are situated at a distance from the tenanted premises which is on the corner and situated abutting two roads. The rent note mentions the specific dimensions and the boundaries of the plot in question and the same is in consonance with the site plans on record which are Ex. AW5/1, Ex. AW7/1 and Ex. AW4/1. The ejectment order is specific and ejectment has been ordered as per para no. 1 of the plaint which is in consonance with the description given in the rent note and, therefore, no prejudice is caused to the tenant, as agitated before this Court. Regarding the material impairment, there is no dispute that vacant land was rented out as per the rent note and construction has been raised on it without written consent of the landlord and, therefore, the tenant has held himself liable to be evicted. This Court in Sudershan Kumar's case (supra), has held as under:-
"6. It is common case of the parties that according to the terms of the rent note, Exhibit RW-1/10, the tenant was not authorised to raise any permanent construction on the vacant land, in question. In spite of that, he raised permanent construction on the vacant land for which the landlord has to file a civil suit for the grant of the permanent injunction against him. It was in execution of the civil Court decree that the said construction was removed by the tenant. In these circumstances, it could not be successfully argued on C.R. No. 5569 of 2008 26 behalf of the tenant that it had not materially impaired the value and utility of the rented land. Om Parkash's and Sadhu Ram's case (supra) relied upon the learned counsel for the tenant have no applicability to the facts of the present case. In Om Parkash's case (supra) it was held by the Supreme Court that the material alteration means substantial change in character, form and structure of building without destroying its identity. The very fact that the tenant raised permanent construction over the vacant land without the permission of the landlord as well as against the terms of the rent note, is itself sufficient to prove that the tenant had materially impaired the value and utility of the rented land. It was held by this Court in Siri Ram's case (supra), that where on the land rented out by the original owner the petitioner was permitted to construct a shop thereon but he constructed a new room along with an incomplete bala khana and a contention was raised that the Courts below were not justified in ordering eviction by raising unauthorised construction on the side, the value and utility of the building had been impaired. As a matter of fact, it will depend on the facts and circumstances of each case as to whether a particular alteration or construction had impaired the value and utility of the building or the rented land, as the case may be, materially or not. On the fact and circumstances of the present case, it has been rightly held by both the authorities below that by raising permanent construction over the vacant C.R. No. 5569 of 2008 27 land, the tenant had materially impaired its value and utility.
19. Similarly, in Shivala Damodar Dass's case (supra), the following has been held:-
"11. A perusal of the clause 13(2) (iii) would show that if the acts of the tenant have impaired materially the value or utility of the building or rented land, then tenant is liable to ejectment. Since the tenanted premises in the present case is a rented land, the construction thereon will impair materially the value and utility of the land. It is not the case of the tenant that they were permitted under the instrument of tenancy to raise construction. Since raising of construction was not permissible, therefore, the raising of construction of 4 rooms itself would prove material impairment of the value and utility of the vacant land. A vacant land can be put to use to many purposes whereas after construction is raised not only it restrict the user but also effect the surface of land apart from light and air. The landlord has not permitted the tenant to raise any construction, therefore, raising construction on a vacant land itself, in my opinion, will make tenants liable for ejectment under the above said clause. In Ram Singh v. Banarsi Dass,2 (1989-2)96 P.L.R. 119 raising of construction in respect of rented land has been found impairing the value and utility of the building. In Kharar Saw Mill Industry & furniture Production Industrial Co-op Society Ltd. Kharar v. Smt. Prem Kaur, (1995-3)111 P.L.R. 345 (supra) it was held as C.R. No. 5569 of 2008 28 under:
"11. No doubt, these words are not pleaded by the landlord that by constructing these rooms these persons have done acts which are likely to impair materially the value or utility of the demised land, but nevertheless the fact remains that when the premises were leased out, there was only one room constructed thereon. Now they have constructed five big rooms thereon. Even in the absence of pleading to that effect that this construction is likely to impair materially the value or utility of the rented land, it can safely be concluded that this construction is likely to impair materially the value or utility of the rented land. Hence, on this ground also the Courts below have rightly held so."
20. The submission of the learned senior counsel for the petitioner that the order passed by the appellate authority is non-speaking and is not reasoned and the matter should be remanded back, cannot be accepted. This Court has examined the issue in detail and record was summoned. Under the revisional jurisdiction, this Court has power to pass any order to do complete justice between the parties and to decide the issue at the earliest rather than prolonging the agony between the parties when there is no dispute regarding the facts. Regarding the revisional jurisdiction of the High Court, Section 15(6) of the Rent Act provides that after satisfying itself to the legality or proprietary of the order, this High Court may pass such orders in relation thereto as it may deem fit and such orders are to be passed obviously in consonance with justice, equity and good conscience and for sub-serving the interest of justice. This Court in M/s. Uttam Chand Inderjit Singh vs. Ram Gopal Kala, 1982 PLR 86 while exercising powers of revision against an ex parte order of ejectment, decided the case on merits by holding that the landlord had failed to make out a case for grant of ejectment of the tenant on the ground of non-payment of rent and after C.R. No. 5569 of 2008 29 finding that the tender was valid, dismissed the ejectment application of the landlord and restituted the tenant into possession. The Hon'ble Apex Court in T. Sivasubramaniam vs. Kasinath Pujari, 1999 AIR (SC) 3190, while dealing with the provisions of the revisional jurisdiction of the High Courts, upheld the power whereby the High Court called for and examined the record in satisfying itself regarding the findings recorded by the Courts below. Para no. 5 of the said judgment reads as under:-
"5. So far as the second submission is concerned, the language employed in Section 25 of the Act, which confers revisional jurisdiction to the High Court, is very wide. Under Section 25 of the Act, the High Court can call for and examine the record of the appellate authority in order to satisfy itself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or orders passed therein. The words 'to satisfy itself' employed in Section 25 of the Act no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the Courts below. It is also true that power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the Courts below. But where a finding arrived at by the Courts below is based on no evidence, the High Court would be justified interfering with such a finding recorded by the Courts below. In the present C.R. No. 5569 of 2008 30 case what we find is that, neither the landlord has not set out his need or requirement for the premises for his occupation in his petition nor he led any evidence to show that his need is bona fide. In the absence of such evidence, the Rent Controller and the First Appellate Authority acted contrary to low in allowing the petition of the landlord by directing the eviction of the tenants. In such circumstances, the High Court was fully justified in interfering with the findings of the Courts below. We, therefore, reject the second submission of learned counsel.
21. Similarly, in Hardev Singh and another vs. Balwant Singh, 2004 (1) PLR 685, G.S. Singhvi, J. as his Lordship, while adorning the Bench of this Court, held as under:-
"21. The ratio of the propositions laid down in the above noted decisions is that the revisional jurisdiction of the High Court under Section 15(5) of the Act is much wider than its revisional jurisdiction under Section 115 of the Code of Civil Procedure, but the same has to be exercised subject to well known limitations inherent in all revisional jurisdictions and cannot be equated with an appellate jurisdiction. In other words, the High Court can in exercise of its power under Section 15(5), call for and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality of propriety of such order or proceedings and interfere with the same if it is convinced that the Rent Controller and/or the Appellate C.R. No. 5569 of 2008 31 Authority has committed any jurisdictional error or exercised jurisdiction illegally or with material irregularity or the finding/conclusion recorded in the impugned order is perverse or is such which a reasonable man could have not recorded in the facts and circumstances of the particular case. However, the High Court cannot interfere with the finding/conclusion recorded by the Rent Controller and/or the Appellate Authority simply because on a re-evaluation of the evidence, it forms a different opinion on the particular issue."
22. The judgment referred to in Karnataka State Transport Corporation's case (supra) pertains to facts where the High Court had heard the first appeal and dismissed it in four words by saying "Heard. No grounds. Rejected" and it was in such circumstances the Hon'ble Apex Court had said that the first appellate court had not given a reasoned conclusion. In the present case, the appellate authority has noticed the evidence on record in the form of statements of parties and documents while maintaining the order of eviction passed initially and in pursuance of the report given by the Rent Controller. Reliance upon Choeth Ram's case (supra) regarding the lease deed being not registered is without any substance as, admittedly, in the present case, the first rent note is dated 01.05.1986 and the subsequent rent note dated 01.06.1987 which acknowledges the earlier one and it is only for a period of 11 months and, therefore, not required to be registered under the provisions of The Registration Act, 1908. The Honble Supreme Court of India in Satish Kumar vs. Zarif Ahmed and others, (1997) 3 SCC 679 has held as under:- C.R. No. 5569 of 2008 32
"7. The question, therefore, that arises is whether a lease of immovable property from month to month or for 11 months is a compulsorily registrable document, though it was reduced to writing as an instrument defined under Section 2(14) of the Stamp Act. A conjoint reading of the first part of Section 107 read with Section 17(1) (d) of the Registration Act, as extracted hereinbefore, does indicate that a lease of immovable property from year to year, or for any term exceeding one yeaer or reserving an yearly rent should be made only by a registered instrument and all other instruments, though reduced to writing and possession is delivered thereunder, are not compulsorily registrable instruments.
8. Section 49 of the Registration Act prohibits receiving in evidence certain types of documents. It reads as under:
"49. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall--
(a) affect any immovable property
comprised therein, or
* * *
(c) be received as evidence of any transaction
affecting such property or conferring such power;
unless it has been registered:"
9. The proviso is not applicable to the facts in this C.R. No. 5569 of 2008 33 case and, therefore, it is not necessary to look into the exceptions engrafted vis-a-vis receipt of a document comprising of three circumstances mentioned therein, namely, unregistered document used for enforcement of specific performance under the Specific Relief Act or used as an evidence of part performance of the contract under Section 53-A of the TP Act or using evidence for collateral transactions. The combined effect of all the provisions is that an unregistered lease deed executed from month to month, for a period not exceeding 11 months, though reduced to writing and possession is delivered threunder to a tenant, is not a compulsorily registrable instrument and, therefore, the prohibition contained in Section 49 of the Registration Act is inapplicable. Therefore, the document is admissible in evidence to consider the effect of the immovable property contained therein or to receive as an evidence of any transaction vis-a-vis such property.
10. The High Court, therefore, was not right in reaching the conclusion that an unregistered document is inadmissible in evidence and cannot be looked into for the purpose of effecting the rights as landlord and tenant created under the document."
23. The judgment in Shivala Damodar Dass's case (supra) pertains to one rent deed which is for unlimited period and therefore, was rejected being not admissible as it was required to be compulsorily registrable. The judgment in Smt. Ram Piari's case (supra) pertains to a petition which was C.R. No. 5569 of 2008 34 filed on account of personal necessity and the issue was as to whether the landlord has to be the owner in property in question in such case and it was accordingly in such circumstances the Court had held that there was a dispute between the person who inducted the tenant and the person who claims himself to be the owner, the matter may be referred to the civil court. In Ram Lal's case (supra), also matter was pertaining to question of bona fide requirement and arrears and the tenant had been inducted by the son of the owner. Similarly in Shri Madan Lal vs. Shri Hazara Singh, 1977 (2) RLR 641, this Court has held that the son was entitled to maintain ejectment petition against the tenant who had been inducted by his father. The judgment of Brijendra Nath Bhargava's case (supra) pertains to the construction of a wooden balcony and since there was a long lapse of time, the Hon'ble Apex Court had held that there was an implied consent and the landlord had decided to waive his objection to it and it would not constitute to a material alteration. In Ved Parkash vs. Darshan Lal Jain, 1986 (2) PLR 90, the matter pertains to where the tenant had removed the intervening wall and in such circumstances, it was held that there was an acquiescence in waiver by the landlord and he had been receiving rent for more than four years thereafter. The judgment rendered in Mahant Sarju Dass Chela Janaki Dass vs. Jia Lal of Hoshiarpur, 1990 HRR 34 pertains to a finding that a relationship of landlord-tenant cannot be made out on the basis of the house tax register maintained by the Municipal Committee. The judgment of the Division Bench in Bhupinder Singh's case (supra) supports the case of the landlord that it is the material impairment which is to be seen from the facts and circumstances of the case and where there is a new construction by the tenant, it itself amounts to material impairment. In C.R. No. 5569 of 2008 35 Waryan Singh vs. Baldev Singh, 2002 (2) RCR 594, the Hon'ble Apex Court had held that putting a shutter would not amount to material impairment and in the present case, the tenant has raised construction on the vacant land in spite of the fact that it has been mentioned in the rent note that it could be used only for running a rehri. The last submission made by the counsel for the petitioner that the matter should have been heard alongwith connected Civil Revision No. 6174 of 2005 once it has been ordered is without any substance. The record of the said case were called for and it has been noticed that on the same day, the two petitions were segregated by a Co-ordinate Bench of this court on 06.12.2011. One case was admitted and the present case was to be heard in the urgent list. Since the proceedings pertain to a dispute between landlord and tenant and the tenancy in question of the premises are different, the grounds of ejectment also being different, reliance upon Bir Bajrang Kumar vs. State of Bihar, AIR 1987 SC 1345 and Subrata Acharjee vs. Union of India, (2002) 2 SCC 725 is of no use.
24. Resultantly, keeping in view the fact that it has been proved that there is relationship of landlord-tenant between the parties and it was admitted so in earlier litigation and it is a settled law that the tenant cannot deny the title of the landlord without surrendering possession and in view of the fact that construction has been raised on the vacant land inspite of the condition to the contrary in the rent note, the ejectment order passed against the tenant, the report submitted by the Rent Controller and upheld by the Appellate Authority are liable to be maintained and accordingly the present revision petition is dismissed.
C.R. No. 5569 of 2008 36
25. The tenant is given three months' time to hand over the land in question as per the ejectment order.
30.05.2012 (G.S. SANDHAWALIA)
shivani JUDGE
1. Whether referred to the Reporters? Yes/No
C.R. No. 5569 of 2008 37