Punjab-Haryana High Court
Som Nath vs Smt. Krishna Devi Nayal on 5 March, 1997
Equivalent citations: (1997)116PLR486
JUDGMENT V.K. Jhanji, J.
1. This civil revision is directed against order dated 24.12.1993 of the Rent Controller whereby application filed by the petitioner Under Section 13-A of the Haryana Urban (Control of Rent & Eviction) Act, 1973 for the ejectment of his tenant, namely, the respondent herein, has been dismissed.
2. In brief, the facts are that the landlord (petitioner herein) filed an ejectment application Under Section 13-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (Hereinafter referred to as the Act) in the Court of Rent Controller against the respondent praying for her ejectment on the ground that he has retired on 31.12.1992 from the service of Union of India, Ministry of Department of Telecommunication as Divisional Engineer, Telegraphs from New Delhi, he has to vacate the government premises after his retirement and so he requires the premises in question for his personal use and occupation. He alleged that he neither owns nor possesses any other house in the Urban area of Shahbad and has not vacated any house in Shahbad nor he got any house vacated from his tenant.
3. Respondent contested the ejectment application inter-alia on the ground that there is no relationship of landlord and tenant and one Kalawanti widow of Dina is the owner of the premises in her occupation and she is a tenant under her for the last more than 15 years. Respondent submitted that she being not a tenant under the petitioner, application for ejectment against her is not maintainable. Learned Rent Controller, on finding that there is no relationship of landlord and tenant between the parties, dismissed the ejectment application. Petitioner preferred appeal before the Appellate Authority challenging the finding of the Rent Controller. Appellate Authority, vide judgment dated 13.8.1994 returned the appeal on the ground that the same is not maintainable and the remedy of the petitioner is by way of civil revision to the High Court. This is how the civil revision has been preferred by the petitioner.
4. At the out-set, it may be stated that the learned counsel for the petitioner has not contested the finding of the Appellate Authority in regard to non-maintainability of appeal and has fairly conceded that the appeal did not lie before the Appellate Authority. Counsel has contended that this Civil revision may be treated against the order of the Rent Controller dismissing his application Under Section 13-a of the Act.
5. Counsel for the petitioner has contended that the entries in the house-tax register maintained by the Municipal Committee clearly prove that the petitioner is the owner of the house No. 619, Ward 8 and being owner, is entitled to maintain application Under Section 13-A against the respondent. He also contended that Kalawanti was the wife of cousin brother of the petitioner and she had been authorised by the petitioner to receive the rent from the respondent and so payment of rent to Kalawanti will not create relationship of landlord and tenant between Kalawanti and the respondent. Finally, he contended that the petitioner being a co-owner of the premises in dispute, has a locus standi to maintain application against the respondent for her eviction.
6. In answer to these submissions, counsel for the respondent has contended that from the evidence brought on record, it has been proved that the premises were taken on rent by the respondent from Kalawanti and rent was being paid to her. He contended that the petitioner having failed to prove relationship of landlord and tenant between the parties, Rent Controller rightly dismissed the application.
7. I have heard the counsel for the parties at length and gone through the record. If the landlord wants to take the benefit of Section 13-A of the Act to eject his tenant, he is duty bound to prove the relationship of landlord and tenant and the Rent Controller before he proceeds in the matter, has to satisfy that the applicant before him is a landlord and the person proceeded against is a tenant as defined under the Act. If the Rent Controller comes to the conclusion that no relationship of landlord and tenant exists, he has no jurisdiction to decide the other issues. If there is a dispute about the title, the Rent Controller is not expected to examine the same and the parties are to be relegated to the Civil Court. In the present case, the petitioner made a specific averment in his application Under Section 13-A of the Act that he is the landlord/land-owner of House No. 619, Ward 8, Shahbad Tehsil Thanesar, District Kurukshetra. He stated that the respondent is a tenant in the said premises on a rent of Rs. 150/- per month plus house-tax. In the written statement, the respondent denied the relationship of landlord and tenant and took up the stand that Kalawanti widow of Dina is the owner and she is a tenant under her for the last more than 15 years. She, in para 4 of the written statement, further averred that the building in dispute is the joint property of Kalawanti, Om Parkash, Ram Chand, Jagan Nath, Hans Raj and Som Nath and she is a tenant in the portion of Kalawanti and so the petitioner has no right to file application being a specified landlord qua the property which is the share of Kalawanti. In the" replication, petitioner denied these averments and stated that Kalawanti is not the owner. Rather, petitioner is the owner of the premises. However, petitioner while giving his statement as P.W.1, in his examination-in-chief, stated that the rent was being received from the respondent by Kalawanti. He stated that he had given permission to her to receive rent on his behalf as she was widow and was dependent on him. He further stated that originally the house belonged to his grandfather and after his death, it had gone to his two uncles, namely, Des Raj and Hans Raj. He is the son of Hans Raj whereas Des Raj has five sons. Petitioner stated that there was oral partition between his father and his uncle and 1/2 of the property had gone to the share of his uncle, Des Raj and half had come to his father, Hans Raj and after the death of Hans Raj; he has become the owner. Admittedly, Kalawanti is the widow of one of the sons of Des Raj and has nothing to do with the house which had fallen to the share of the petitioner. Petitioner has not produced any authority on record to show that he had authorised Kalawanti to give the premises in dispute on rent to the respondent. Kalawanti has not been examined though it has been conceded by the learned counsel for the petitioner that at the time when petitioner gave statement, Kalawanti was alive. The case set up by the petitioner in his statement as PW-1 has not been set up by him in his pleadings. He has not stated in his pleadings that the house originally belonged to his grandfather and after the death of his grandfather, it was inherited by his father and uncle and there was a family partition between his father and uncle and the portion in occupation of the respondent, had fallen to the share of his father. In absence of pleadings in this regard, the Rent Controller has rightly not taken into consideration the alleged family settlement vide which the property in possession of the tenant had fallen to the share of the petitioner. The contention of learned counsel that Kalawanti was acting as an agent to collect rent on behalf of the petitioner, is also without any foundation. In the written statement, respondent specifically averred that Kalawanti is her landlady and she has been paying rent to her for the last 15 years but in the replication, petitioner did not come forward to say that Kalawanti had been receiving rent on his behalf. He, in fact, stated that she is not the owner. He did not state that she had been receiving rent on his behalf. In absence of the pleadings in this regard, it is not open to the petitioner to urge that Kalawanti had been receiving rent on his behalf.
8. The other contention of the counsel that in the register of the Municipal Committee, petitioner has been shown to be the owner and, therefore, he should be taken to be the landlord of the premises, is also without any merit. The entry in the assessment register may give an indication that the respondent is residing in the premises but provides no help for deciding that the respondent is occupying the premises as a tenant under the landlord. Such type of evidence cannot be used in support of the fact that any relationship of landlord and tenant exists between the persons whose name is mentioned in the register as the landlord. As regards the contention that the petitioner being one of the co-owners, is entitled to maintain the application, suffice it to say that it was never the case of the petitioner in the pleadings that he is the co-owner and has filed the application in the capacity of a co-owner. As a matter of fact, he in his statement stated that in family settlement, the portion in occupation of the respondent had come to the share of his father. The statement is in contradiction of the plea of co-owner, I am, thus, of the view that the respondent having proved on record that she has been paying rent to Kalawanti and the petitioner having failed to prove that Kalawanti was acting as his Agent, the Rent Controller has rightly come to the conclusion that there is no relationship of landlord and tenant between the parties.
9. Consequently, this civil revision being without any merit, has to be dismissed and it is so ordered. However, it is made clear that the finding given herein will not prejudice the case of the petitioner in case he chooses to seek his remedy in a Civil Court on the basis of title if he is able to establish one.