Punjab-Haryana High Court
Onkar Nath Jagpal R/O H.No.1318 vs Daropti Devi W/O Roshan Lal on 4 September, 2012
Author: K. Kannan
Bench: K. Kannan
C.R. No.3212 of 1994 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.3212 of 1994
Date of Decision.04.09.2012
Onkar Nath Jagpal r/o H.No.1318, Sector 15-B, Chandigarh
.....Petitioner
Versus
Daropti Devi w/o Roshan Lal, 119, South Avenue, New Delhi
.....Respondent
Present: Mr. M.L. Sarin, Senior Advocate with
Ms. Hemani Sarin, Advocate
for the petitioner.
Mr. Amit Jain, Advocate with
Mr. Jaivir Chandel, 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 tenant is the revision petitioner before this Court. The petition for eviction was founded on a claim by the land lady that the tenant had changed the user of the property for purpose other than for the purpose it was let and on the ground of subletting. The ground of subletting itself had been brought through as a subsequent event during the pendency of proceeding that the tenant had sublet the premise to his brother-in-law Nanda in the year 1987. The petition was allowed accepting the contention of the land lady. The appeal by the tenant before the Appellate Court also confirmed the judgment of the Rent Controller. The tenant, who is aggrieved by the decisions of the Courts below, is the revision petitioner before this Court.
2. Learned Senior Counsel, Sh. Sarin, appearing on behalf of C.R. No.3212 of 1994 -2- the petitioner-tenant would contend that the property had been granted on lease orally in the year 1975 and there had been no change in user of the premise at all. According to him, the property was let for his residential use as well as for the purpose of running a clinic as a doctor. The rent, which was originally Rs.600/- was gradually increased and when the first floor was also constructed, it was raised to Rs.1200/-. According to him, there was no basis for the land lady to contend that there had been any change of user. Adverting to the reasoning of the Appellate Court that there had been a change of user, the learned counsel would contend that the burden of proof was always on the land lady to contend that there had been such a change without the written consent. In this case, admittedly, the tenancy was oral and there was nothing to show that the property had not been originally let out for residence as well as for running his clinic. The initial letting itself had been for both the purposes and the land owner cannot make an issue of the fact that when a local commissioner appointed, he also found that the tenant was having a clinic in the residential premises. A change of user in order that is actionable shall be only in situations where the initial letting was for a particular purpose and there had been a conversion without the concurrence of the land lady during the course of tenancy. In this case, according to the learned Senior Counsel, the initial letting itself was both for residential as well as for running a clinic and therefore, there was no case of change of user.
3. As regards the contention that the tenant had sublet the premises, learned Senior Counsel would contend that the alleged sub tenancy was in favour of his brother in law Sh. Nanda and he merely C.R. No.3212 of 1994 -3- visited his premises now and then and he never lost exclusive possession of the property to his brother-in-law. Evidence had been let in by the land lady as regards the alleged subletting by showing a circumstance before the Court that the tenant had actually shifted to Delhi and in proof of the same, evidence was brought to the effect that he had surrendered his gas connection and had it shifted to Delhi and he had also obtained transfer certificate for his children by withdrawing them from school where they were studying at Chandigarh. The learned Senior Counsel would contend that the transfer of gas connection had no bearing at all that he had shifted to Delhi, for it was merely a case of tenant attempting to start a business in Delhi and he had never shifted to Delhi wholesale. The children were indeed taken out of Chandigarh for a short while but they did not last long and they came back to Chandigarh within a very short time. The fact that the children were put in some other school could not be a ground to suspect that the tenant had shifted base to Delhi, abandoning the property and putting it up in the hands of the sub tenant. The learned counsel would make an issue of the fact that the local commissioner who was appointed has brought out in his report that the tenant himself continued in possession, was also having a clinic in the same premises and he did not find the presence of the alleged sub tenant.
4. A third issue that obtained relevance during the course of argument was the contention that pending proceedings, the tenant had himself purchased a share from the co-owners, who was a heir at law to the land lady. The land lady had died after the filing of the civil revision and the legal representatives have brought themselves on record. One of C.R. No.3212 of 1994 -4- them had sold the property and such sale ingested in the tenant a status of co-owner of the property along with the remaining land owners and the remedy of the land lady would only be to sue for partition and filing an ejectment action in respect of the property which is allotted in partition. Substantial case law had been submitted in support of these contentions.
5. All these contentions urged by the land lady are resisted strongly by the counsel appearing on behalf of the land lady. It is contended that the proof of change in user obtained by the fact of the tenant admitting that an additional room was constructed only subsequently in the year 1977 and it was at that time, the tenant also started using the premises for the purpose of running his clinic. The landlord would contend that the tenant's conduct would show that the property had not been originally let out for the purpose of running a clinic and that it became an additional user only after the construction at the first floor. On the issue of subletting, the contention by the tenant would be that the sub tenancy is invariably a secret affair and there are sufficient materials to show that there had been such a subletting by the tenant. Joining issues on point of law with reference to maintainability of the petition for eviction and the relevance of the said relief ever after a sale by one of the co-sharers, the contention is that the tenant cannot obtain a merger of his interest so long as he is purchaser only in respect of a fractional share. These rival contentions would require further examination of specific points urged by the respective counsel.
6. As regards the contention regarding the change in user, C.R. No.3212 of 1994 -5- admittedly, there had been no written instrument for creation of lease initially in the year 1975. The tenant wanted to contend that he had been a registered medical practitioner even from the year 1973 and seeks to file the document as an additional document for consideration. This is to probablise his contention that the premises initially let out also for the purpose of running his clinic. No reasons were given as to why this document was not produced before the Courts below. The fact that he had been a legal practitioner itself is not in dispute. The point of contention is whether the letting was also for the purpose of running a clinic and when the land lady was contending that the letting was only for residential purpose and adduces evidence therefor by her assertion, the onus would shift to the tenant to refute the contention and bring to proof such of those contentions, which are capable of being proved through documentary evidence. In this case, the tenant admitted that there was a patient register. The tenant admitted that when an additional floor was constructed, he had secured a written consent of the land lady for continuing to use the premises also for the purpose of running his clinic. Neither the patient register nor the alleged written consent of the land lady said to have been given to him was produced at the trial. The land lady's assertion could have been shown to be false by a simple production of evidence that the tenant was running a clinic even from the year 1975. Running a clinic cannot be a secret affair. The doctor, who attends to patients ought to be visible to the patients in place where he conducts the profession. Attendance of patients, fee receipts, stocking of dispensing medicines, purchase of minimal medicine for dispensation would have all provided sufficient grist to the C.R. No.3212 of 1994 -6- mill for a tenant. Although I would find that the burden was always on the land lady to prove the change of user when an assertion is made that the letting had been only for residential purpose, non production of documents which are relevant for a tenant to contend that there existed a clinic even at the time of initial letting ought to be taken as a serious lapse that would require an inference to be drawn that the tenant was unable to produce certain documents which ought to have been in his custody if his contention were true. It can never be contended that the land lady herself had filed the case only in the year 1986 for an alleged different user of the property in the year 1977 and that therefore there was an acquiescence by the land lady. The requirement in law for the change of user is written consent. The tenant, therefore, cannot contend that by the fact that the land lady resorted to action for eviction only 8 years later as lending credibility to his contention that the land lady knew at all times that the tenant was using the property also for running a clinic. I affirm, therefore, the finding of the Rent Controller and the Appellate Authority that there had been a change in user of the construction without the written consent.
7. The landlord's contention regarding subletting was founded on an amended pleading brought through an application filed on 27.02.1987. The contention of the land lady at the time when application was filed was that he had let out the premises at the first floor to his brother-in-law Nanda. A local commissioner was also appointed to inspect the premises immediately. The report of the local commissioner evidenced that at the ground floor of the house, there was a clinic but at the first floor at the time of his visit, there was nobody. C.R. No.3212 of 1994 -7- The local commissioner is said to have elicited information from one J.B. Seth, who told him that Mr. Nanda was away at Rohru, Himachal Pradesh and was expected to return in the night. The report also states that Nanda had sent his family to Sector 22, Chandigarh. He found the premises at the first floor locked. The report itself can be used for no purpose other than the fact that the first floor was found locked and we will have to look to other evidence whether the land lady's contention of subletting with reference to first floor was established through other evidence. The land lady relied on certain circumstances namely that the tenant had obtained a transfer of gas connection and had withdrawn the children from the school and admitted them elsewhere at Delhi. The transfer of gas connection or the fact that the children were withdrawn from the school itself is not denied. At the time of trial, the tenant went as far as to deny completely that he had shifted to Delhi and that his children were also admitted in the school. There was, however, a halting admission on the part of Nanda as RW-3, when he said that "the respondent shifted his children to Delhi some time for 10 days. I do not know whether at any stage he shifted his children for education purpose at Delhi. I do not know whenever respondent along with his children went to Delhi, place where he stayed. He might be staying with his other brother-in-law, who lives there." He was definitely trying to conceal some truth. It is impossible that the brother-in-law, who visited the tenant regularly would not know whether he had shifted his children for education purpose to Delhi. Elsewhere in the same cross- examination, he had also stated that his gas connection was also shifted but he would volunteer information that the tenant had two-three gas C.R. No.3212 of 1994 -8- connections. Learned counsel appearing on behalf of the respondent- land lady contends that if there had been really a case that the tenant having more than one connection, it was necessary for him to show the existence of other connections. I would also find that the best evidence of what the tenant could have produced that he had other gas connections and that a temporary shift of one gas connection to another place would not be taken as material, was not placed before the Court. The same way the fact that the children were taken from school in Chandigarh and shifted to Delhi was itself not disputed by the learned Senior Counsel arguing for the tenant. He was only trying to contend that if the children were shifted for short time away and brought back to Chandigarh, it ought not to be taken as establishing a case of sub tenancy. The important ingredient for sub tenant, according to the learned Senior Counsel, would be the handing over of physical possession of the premises. So long as he continued in possession, which the local commissioner's report itself established, he could not be said to have sublet the premises to the sub tenant. The subletting of what becomes actionable under the Act is not merely the creation of sub tenancy with reference to the whole of the property, it could be also with reference to a portion thereof. Consequently, it was not necessary for the tenant to completely shift out of the premises. If he had even allowed for ceding of possession to a portion of the whole property, it will still amount to an actionable wrong that would visit the tenant with consequences of eviction. That precisely was the case of the land lady contending that the first floor of the premises had been occupied by the tenant and the tenant had vacated the premises leaving it in the hands C.R. No.3212 of 1994 -9- of the sub tenant exclusively.
8. Learned counsel appearing on behalf of the respondent shows also certain circumstances to indicate that the subtenant had surely occupied the demised premises. It was admitted by him in the evidence of the tenant himself during the cross-examination that his brother in law had been living in House No.2071 at Sector 15, Chandigarh from the year 1978-79 and vacated it in the year 1987 and perhaps in April, 1987. This was about the period when according to the land lady, the sub tenant had moved to the premises. Nanda as PW-3 was contending that after he vacated the premises in House No.2071, he shifted his residence to House No.3292 in the same sector in the month of April. There was no evidence to show that he had shifted the residence to House No.3292 and he was put to searching cross- examination of whether there was anything to show that he had taken possession of the said premises from his land lady and whether there existed any proof that he was in occupation of the said premises. When the person, who was said to be a sub tenant was shown to have vacated the previous property in his possession, the best way of calling landlady's bluff could have been to show that he was actually residing elsewhere at the relevant time. When the case goes to admission of an important fact of Nanda vacating the tenanted premises elsewhere in the year 1987 that coincided with the time when he had entered the premise as sub tenant, he ought to have produced the evidence. The tenant seeks to give an affidavit of the affidavit as additional evidence setting out details of several houses where he was living. They cannot simply be received now, especially after the witness had given evidence and his C.R. No.3212 of 1994 -10- version was put to cross examination. Learned Senior Counsel would contend that the issue of subletting would also require to be established only by the land lady and the failure of the sub tenant to show that he was residing elsewhere ought not to be understood as proving that there had been actually a sub tenancy. It is clichéd in legal parlance that a sub tenancy remains in secrecy and direct evidence is seldom possible. In this case the admitted events of the tenant's brother-in-law vacating his tenanted premises held in occupation till 1987 and shifting elsewhere made possible for the sub tenant to show that he had taken possession of some other premises during the relevant time. If he was not prepared to produce the document which he ought to have in his custody during the trial, the inference was surely possible that the tenant and subtenant were trying to conceal the truth. They were close relatives and the Rent Controller and the Appellate Authority were justified in making an inference that there had been a subletting of the premises, which was concealed by the tenant. I, therefore, confirm the finding of the Courts below that there was a case of subletting as well.
9. The maintainability of the petition by some of the legal representatives of the deceased land lady was argued by the learned Senior Counsel appearing on behalf of the petitioner contending that he had purchased a share of the property from one of the legal heirs of the deceased-land lady. This, according to him, should be understood as a possession by him of the property as a co-owner and without an action for partition brought at the instance of the co-owners out of possession, the prosecution of the rent control petition cannot be made. The learned Senior Counsel would refer me to the decision of the Supreme C.R. No.3212 of 1994 -11- Court in Jagdish Dutt Vs. Dharam Pal 1999 (1) RCR 466 where the Court held that the purchaser of an undivided share from co-owner cannot claim to be in joint possession of the property with all other co- owners. However, in a case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of possession because a joint decree holder can seek execution of a decree in the whole and not in part of the property. It was a case of a judgment debtor in possession coming by purchase of a share of the property from one of the decree holders, which the Court said would result in a situation of the decree becoming inexecutable. Learned counsel appearing on behalf of the land lady would point out to a factual case that the judgment debtor, who was possession, was referred to as a trespasser and not as lessee. Consequently, the Court's specific observation in para 6 of the judgment that the scope of Section 111(d) of the Transfer of Property Act which referred to a case of merger of interest was not required to be considered. I would uphold the objection and hold that this judgment cannot really answer the situation. On the other hand this point was specifically dealt with by the Supreme Court in M/s India Umbrella Manufacturing Company and others Vs. Bhagabandei Agarwala (dead) by LRs and others 2004(1) HRR 251. It was a case of two persons who were co-owners of the property, who had rented out the shops to tenants. One of the tenants purchased from one of the co-owners and resisted the action for eviction contending that by such purchase, he had himself become a co-owner of the property and therefore, he could not be evicted. Learned counsel appearing on behalf of the tenant Ms. Hemani wanted to distinguish this judgment by saying C.R. No.3212 of 1994 -12- that it was a case of two land lords filing an action for eviction in respect of more than one tenancy and therefore, the judgment did not apply. The point of law, which is made in this case was that where property in dispute was owned by co-owners, any one of them could file a suit for eviction against the tenant or tenants on the basis that one co- owner is an agent for the other co-owners. Such a co-owner could file a suit as an agent for the other co-owners whose consent would be presumed unless they showed their disagreement. In this case Daropti Devi was the landlord and she had prosecuted the petition in both Courts as well as in the High Court. On her death, the impleadment of all the legal representatives would result in a situation where tenant is compelled to attorn to all the legal representatives of the deceased landlord. The tenant cannot choose at his whim that he was prepared to recognize as his landlord only one of them and by purchase of a fractional share from such a person, plead a merger of interest. He cannot put an end to the status as tenant unless all co-owners consented to such course. In this case, after the death of the landlord Daropti Devi, the legal heirs were impleaded at their own instance and they were represented by the same counsel. One amongst them has sold the property to the tenant but at the time when the impleadment was made, they stepped into the shoes of the original landlord and their joint application is itself sufficient indication to hold that all the co- owners consented to the prosecution of the petition. It was not as if the person, who had sold the property to the petitioner had not joined for impleadment in the petition. On the other hand vakalatnama held by the counsel appearing for the landlord was for all the legal heirs of the C.R. No.3212 of 1994 -13- landlord as well. The transfer of property by one of them during the pendency of proceedings could not have made any difference. It is in this context that the Supreme Court held in M/s India Umbrella Manufacturing Company (supra) that where the suit was by two co- owners against firm comprised of two tenant-partners, a transfer by one co-owner of his interest to one of the tenants during the pendency of proceedings, cannot allow the transferee to withdraw the suit. This is on the principle that he had purchased only a share and not the entire property. The doctrine of merger within the meaning of Section 111(d) of the Transfer of Property itself would not be attracted. Having regard to the judgment of the Supreme Court relating to how a tenant, who is a purchaser of fractional share from one of the co-owners cannot obtain merger of a larger interest, I do not want to cite other decisions referred to by the learned counsel for the tenant regarding the continuance of proceedings by one of the co-owners for ejectment against the tenant, who had become a co-owner by purchase during the pendency of proceedings. Any other judgment must conform to the law laid down by the Supreme Court in M/s India Umbrella Manufacturing Company (supra).
10. The purchase of property by the tenant from one of the co- owners, therefore, would make no difference at all. He is bound to surrender possession of the property. The orders of eviction passed by the Courts below are maintained and the civil revision is dismissed. Time for eviction is four months.
(K.KANNAN) JUDGE September 04, 2012 Pankaj*