Punjab-Haryana High Court
Jeet Kumari vs Girdhari Lal on 2 April, 2003
Equivalent citations: (2003)135PLR605
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
ORDER Satish Kumar Mittal, J.
1. This judgment shall dispose of two Regular Second Appeals bearing Nos. 1242 of 1995 (Jit Kumari v. Girdhari Lal) and 1360 of 1995 (Girdhari Lal v. Jit Kumari) and Civil Revision No. 4929 of 1998 (Girdhari Lal v. Jit Kumari). The above Regular Second Appeals have arisen from civil suit No. 90 dated 07.05.1991, filed by Jit Kumari against Girdhari Lal for ejectment and for possession of house bearing No. 236 Dadu Majra Colony, U.T. Chandigarh (hereinafter referred to as the 'disputed house') and for recovery of arrears of rent. The Civil Revision has arisen from an ejectment application No. 176 dated 27.03.1995, filed by the aforesaid Jit Kumari under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') against the aforesaid Girdhari Lal for his ejectment on the ground of non-payment of rent. This revision petition was ordered to be listed for hearing alongwith the aforesaid two Regular Second Appeals.
2. The brief facts of the case are that the disputed house was allotted to Girdhari Lal (hereinafter referred to as 'the defendant') by Housing Board, Chandigarh. The case of Jit Kumari (hereinafter referred to as 'the plaintiff') is that she had purchased the disputed house from the defendant for a consideration of Rs. 35,000/- on General Power of Attorney. On 18.08.1986, the defendant executed various documents i.e. agreement of sale (Ex. P2), affidavit (Ex. P3)., General Power of Attorney (Ex. P4) and Will (Ex. P5). The entire sale consideration was paid by the plaintiff to the defendant and the physical possession of the disputed house was handed over to the plaintiff. On the same day, a rent agreement was also executed between the parties, vide which the defendant had taken the disputed house on rent from the plaintiff at the rate of Rs. 250/- per month for a period of six months. The case of the plaintiff is that by the execution of the aforesaid agreement of sale, General Power of Attorney and affidavit etc. by the defendant, she became owner of the disputed house and thereafter she rented out the same to the defendant for a period of six months at the monthly rent of Rs. 250/-. But the defendant neither vacated the disputed house after the expiry of the period of tenancy nor paid the rent to her after September, 1986. The plaintiff further pleaded that since the defendant did not vacate the disputed house, she requested him many a times to vacate it. Thereupon, the defendant, with the intervention of the Panchayat, had agreed to vacate the disputed house vide a written agreement dated 10.09.1990. But in spite of that, he did not vacate the disputed house. That, the plaintiff served a registered notice upon the defendant on 18.04.1991, terminating his tenancy and requesting him to hand over the vacant possession of the disputed house to her within a period of 15 days. But in spite of that, the defendant did not hand over the vacant possession of the disputed house. Then the plaintiff filed suit for ejectment of the defendant and for possession of the disputed house; and for recovery of the arrears of rent.
3. The defendant contested the aforesaid suit and pleaded that the plaintiff was neither owner nor the landlady qua him of the disputed house. He further pleaded that the aforesaid General Power of Attorney, agreement Of sale, affidavit and Will as well as the rent agreement were bogus documents and they are legally not binding on him. He further pleaded that as per the allotment letter (Ex. D1), he was not competent to sell the disputed house to the plaintiff for a period of ten years. He denied the factum of receiving the alleged sale consideration as well as paying of rent to the plaintiff. He further pleaded that he himself is the owner of the disputed house, therefore, the same cannot be rented out to him. He took the plea that actually he had borrowed Rs. 24,000/-from the plaintiff on interest, who had kept the allotment letter with her as security and fabricated the aforesaid documents on the papers on which she obtained his signatures at the tune of giving the loan.
On the pleadings of the parties, the following issues were framed by the learned trial court:
1. Whether the plaintiff is owner and landlord of house in dispute?OPP
2. Whether there exists relationship of landlord and tenant between the parties? OPP
3. Is the suit of the plaintiff not maintainable in the present form?OPD
4. Whether the plaintiff is entitled for the relief claimed?OPP
5. Relief.
4. After considering the evidence led by both the parties and hearing the arguments addressed by their respective counsel, the learned trial court found that the defendant had executed the agreement of sale (Ex. P2), affidavit (Ex. P3), General Power of Attorney (Ex. P4) and Will (Ex. P5). It has also been held that the entire sale consideration of the disputed house was paid by the plaintiff to the defendant. It was also found that on the date of execution of the aforesaid documents, physical possession of the disputed house was handed over to the plaintiff. It was further held that thereafter the disputed house was rented out to the defendant vide rent agreement (Ex. P7) at the rate of Rs. 250/- per month for a period of six months. The rent agreement (Ex. P7) has also been proved to be duly executed by the defendant. The learned trial court disbelieved the story put forward by the defendant Lhat he had taken the loan in the security thereof the aforesaid documents were got executed, It was further held that when the defendant did not vacate the disputed house after the expiry of the period of tenancy, a compromise (Ex. P1) was arrived at between the parties, in which the defendant agreed to deliver the vacant possession of the disputed house to the plaintiff on or before 10.09.1990. On the basis of the aforesaid findings of facts, the learned trial court held on issue No. 1 that the plaintiff is owner and landlady of the disputed house as the defendant, who was the original allottee thereof, had sold the same to the plaintiff by executing an agreement of sale (Ex. P2) by receiving the entire sale consideration arid by handing over ths physical possession of the disputed house to her. On issue No. 2, it was held that the disputed house was taken on rent by the defendant from the plaintiff at the rate of Rs. 250/- per month. The rent agreement (Ex. P7) was duly proved. The relationship of landlord and tenant was held to be existing between the parties. On issue No. 3, it was held that the civil suit filed by the plaintiff for ejectment of the defendant is maintainable. With these findings, the learned trial court decreed the suit of the plaintiff and the defendant was ordered to be ejected and directed to hand over the vacant possession of the disputed house to the plaintiff within a period of two months. The plaintiff was also allowed the arrears of rent from May, 1988 to April, 1991 at the rate of Rs. 250/- per month. She was further allowed an amount of Rs. 10,500/- for the use and occupation of the disputed house from May, 1991 to October, 1994.
5. Feeling aggrieved against the aforesaid judgment and decree, the defendant filed appeal before the Additional District Judge, Chandigarh. The same was allowed and the judgment and decree passed by the leaned trial court was set aside. The findings of the learned trial court regarding execution of the various documents (Ex. P2 to Ex. P7) by the defendant have been upheld. It was found that the defendant has admitted his signatures on all the aforesaid documents during the course of his cross-examination while appearing in the witness box as DW.4. The findings of the learned trial court regarding execution of the rent agreement, taking of the disputed house on rent by the defendant at the rate of Rs. 250/- per month have been upheld. The findings on issue No. 2 regarding relationships of landlord and tenant between the parties have also been affirmed. However, it was held that merely on the basis of the agreement of sale (Ex. P2), the payment of the entire sale consideration and transfer of physical possession to the plaintiff, the plaintiff cannot be said to have become owner of the disputed house. It was further held that though the plaintiff is not the owner of the disputed house but she is the landlady of the defendant. The findings of the trial court regarding execution of the rent agreement (Ex. P7) and renting out the disputed house by the plaintiff to the defendant at the monthly rent of Rs. 250/- were confirmed. It was held that even though a person may not be owner of the rented premises, but he can be the landlord for that premises. But on issue No. 3 it was held that the civil court has no jurisdiction to pass the order of ejectment in view of Section 15(4) of the Act. The aforesaid judgment and decree was passed by the learned first appellate court on 23.01.1995.
6. Both the parties felt aggrieved against the aforesaid judgment and decree of the first appellate court. The plaintiff filed Regular Second Appeal No. 1242 of 1995, whereas the defendant filed Regular Second Appeal No. 1360 of 1995 in this Court.
7. Soon after the passing of the aforesaid judgment and decree by the first appellate court, the plaintiff filed an ejectment application (Rent Application No. 176 dated 27.3.1995) against the defendant in the Court of Rent Controller, Chandigarh under Section 13 of the Act for his ejectment on the ground of non-payment of rent. In that it was alleged that she is owner and landlady of the disputed house, which was purchased by her from the defendant after paying full consideration and after receiving physical possession of the same from him. It was further alleged that the relationship of landlord and tenant is existing between the parties as the disputed house was rented out to the defendant by her at the monthly rent of Rs. 250/- as per the rent agreement (Ex. P7). The respective pleas taken by both the parties in that ejectment application are the same as they had taken in the aforementioned civil suit.
8. The said ejectment application was allowed by the Rent Controller and the said order was confirmed by the Appellate Authority. Both the authorities held that the relationship of landlord and tenant is existing between the parties and that the defendant has failed to pay the arrears of rent as claimed in the ejectment application. Against the said order of ejectment passed by both the aforesaid authorities under the Act,the defendant (tenant) has filed Civil Revision No. 4929 of 1998, which was ordered to be heard with the aforesaid two Regular Second Appeals. The plaintiff is aggrieved against the findings of the first appellate court on issues No. 1 and 3 while the defendant is aggrieved against the findings recorded by the both the Courts below on issue No. 2.
9. While assailing the finding recorded by the first appellate court on issue No. 1, learned counsel for the plaintiff submitted that it has been proved on record that the defendant had entered into an agreement to sell the disputed house to the plaintiff and had received the total sale consideration. He had also executed the various documents, acknowledging the aforesaid sale, like Affidavit (Ex. P3), General Power of Attorney (Ex. P4) and Will (Ex. P5) in favour of the plaintiff. It has also been proved that the actual physical possession of the disputed house was handed over to the plaintiff, and that after the aforesaid purchase the disputed house was rented out by the plaintiff to the defendant as owner/landlady at monthly rent of Rs. 250/- vide rent agreement (Ex. P7). Learned counsel for the plaintiff submitted that in view of the aforesaid findings recorded by both the Courts below, the plaintiff has become owner of the disputed house. Learned counsel further submitted that the agreement (Ex. P2) was not a mere agree ment to sell but it was more than that because the transaction of purchase was complete in all respects except the execution of regular sale deed and the registration thereof. He submitted that by aforesaid transaction, an interest in the disputed house was created in favour of the plaintiff and she is entitled to protect that interest under Section 3-A of the Transfer of Property Act, 1882 (hereinafter referred to as 'the Act 1882') and under Section 202 of the Indian Contract Act, 1872 (hereinafter referred to as 'the Act of 1872') in spite of the fact that no registered sale deed was executed as per the requirement of Section 54 of the Act of 1882. Learned counsel for the plaintiff further submitted that words an interest in the property which forms the subject matter of the agency" occurring in Section 202 of the Act of 1872, are of wide amplitude than the words, "any interest in or charge on, such property," in Section 54 of the Act of 1882. He submitted that it is true that mere execution of the agreement to sell without doing anything more will not create any interest in the property to be sold, but where the vendor has received the entire sale consideration and in pursuance of the agreement to sell possession has been delivered to the prospective vendee, then it could not be said on the basis of Section 54 of the Act of 1882 that no interest was created in the property. Learned counsel submitted that the findings recorded by the first appellate court in this regard on issue No. 1 are erroneous and liable to be reversed. In support of his contention, he relied upon a decision of this Court in Ramesh Mohan and Anr. v. Raj Krishan and Ors., (1984)86 PLR 211 and the decision of Delhi High Court in Shikha Properties (P) Ltd. v. S. Bhagwant Singh, (1998-3)120 P.L.R. D. 32. Learned counsel for the plaintiff further argued that the agreement (Ex. P2) was not a mere agreement to sell but it was more than that. The possession was delivered to the plaintiff after receiving the entire sale consideration, therefore, she was entitled to protect her possession like an owner under Section 53-A of the Act of 1882.
10. On the other hand, learned counsel for the defendant submitted that the agreement to sell the immovable property does not create any interest or charge on such property and it does not confer any title of ownership on the purchaser unless a registered sale deed is executed. He submitted that a person cannot become owner of a property by purchase on the basis of agreement to sell and power of attorney executed by the alleged vendor in absence of a registered sale deed. In support of his contention, learned counsel for the defendant relied upon Sujan Singh Sadhana v. Mohkam Chand Jain and Ors., AIR 1983 P&H 180, Imtiaz Ali v. Nasim Ahmed, AIR 1987 Delhi 36 and Sardari Lal Sat Pal and Ors. v. Amritsar Improvement Trust, Amritsar, (1993-2)104 PLR 362.
11. I have considered the argument raised by learned counsel for the parties on the issue as to whether in absence of the registered sale deed, the plaintiff has become owner of the disputed house on the basis of agreement to sell (Ex. P2), Affidavit (Ex. P3), General Power of Attorney (Ex. P4) and Will (Ex. P5) executed by the defendant. I am of the view that the findings recorded by the fist appellate court on this issue are correct. Even though the execution of agreement to sell (Ex. P4), receipt of sale consideration by the defendant and handing over of possession of the disputed house have been proved on record, yet these documents do not transfer the title or ownership of the disputed house in favour of the plaintiff. The provision of Section 54 of the Act of 1882 provides that sale of immovable property of the value of Rs. 100/- or more can be made only by a registered instrument. Nobody can call himself as owner by purchase on the basis of agreement to sell and the power of attorney executed by the alleged vendor in favour of the prospective purchaser/attorney in absence of a registered sale deed. Though the plaintiff has not acquired the ownership right on the disputed house as the registered sale deed has not been executed in her favour, yet it cannot be said that she has no interest in the disputed house. Since in the instant case, the plaintiff was put into possession of the disputed house as prospective vendee by the defendant after receiving the entire sale consideration; and further the defendant also executed irrecoverable power of attorney in favour of the plaintiff, an interest in the disputed house has definitely been created by the aforesaid transaction in favour of the plaintiff. Though Section 54 of the Act of 1882 provides that a contract of sale of immovable property 'does not, of itself create any interest in or charge on such property' but where a contract of sale was not a mere agreement to sell but more than that because practically the transaction was complete in all respects except the execution of the regular sale deed and registration thereof, such contract of sale definitely creates an interest in the property under the said agreement. Such an interest has been protected under Section 53-A of the Act of 1882 as well as under Section 202 of the Act of 1872. In the present case, the power of the attorney (Ex.P4) was irrecoverable. Firstly because in this document it has been mentioned that it is irrecoverable; and secondly in view of the provisions of Section 202 of the Act of 1872, this power of attorney cannot be revoked by the defendant. In the instant case, execution of the agreement to sell the disputed house in favour of the plaintiff and receipt of entire sale consideration and delivery of possession have definitely created an interest on the plaintiff in the disputed house. The provisions of Section 202 of the Act of 1872 will be applicable in the present case and the defendant cannot revoke the power of attorney executed hi favour of the plaintiff. The plaintiff is also legally entitled to protect her possession as a prospective vendee in view of the provisions of Section 53A of the Act of 1882. Moreover, it is always to be borne in mind that while administering justice, equity always plays an important part and Courts cannot lose sight of the equities and, thus, help a wrong-doer on mere technalities. Thus, I am of the opinion that though the plaintiff has not become owner of the disputed house, but she is definitely entitled to protect her possession which was handed over to her by the defendant after receiving the entire sale consideration under the agreement to sell (Ex.P2) under the provision of Section 53-A of the Act of 1882 which clearly provides that 'Notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.'
12. Now the next question arises as to whether the plaintiff is the landlady of the disputed house which is in occupation of the defendant under the rent agreement (Ex.P7) or whether the relationship of landlady and tenant exists between the plaintiff and the defendant or not? Both the Courts below have decided this issue in favour of the plaintiff by holding that the relationship of landlord and tenant is existing between the plaintiff and the defendant. In my view, the findings recorded by both the Courts below on this issue do not require any interference. Under the agreement to sell (Ex.P2), possession of the disputed house was delivered to the plaintiff after receiving the entire sale consideration. The General Power of Attorney (Ex.P4) was also executed by the defendant in favour of the plaintiff, which authorises the plaintiff to do all or any of the acts, deeds and things necessary for proper management. In the instant case, the execution of rent agreement (Ex.P7) has been proved, which establishes that the tenancy was created for a period of six months at the monthly rent of Rs. 250/-. Under the provisions of the Act, to become a landlord of a premises, it is not necessary that he must be owner of the building. Under Section 2 of the Act, 'landlord' means 'any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other persons, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, and, every person from time to time deriving title under a landlord.' According to his definition, a landlord may be either (1) any person who is receiving rent in respect of premises on his own account; (2) any person who is entitled to receive rent in respect of premises on his own account; (3) any person who is receiving rent in respect of premises on account or on behalf of or for the benefit of any person who is receiving rent in respect of premises on account or on behalf of or for the benefit of any other person; (4) any person who is entitled to receive rent in respect of premises on account or on behalf of or for the benefit of any other person; (5) any person who is receiving or is entitled to receive rent in respect of premises as a trustee, guardian or receiver for any other person. In the similar circumstances, the Delhi High Court in Imtiaz Ali v. Nasim Ahmed (supra) has held as under:-
"In an application for eviction on ground of non-payment of rent the title to immovable property is immaterial. If there is relationship of landlord and tenant between the parties it would be maintainable. It is not necessary that landlord should also be owner. Therefore observation of the Rent Control Tribunal that applicant under Section 14(1)(e) had not pleaded how he became owner or how the non-applicant was his tenant was not according to law.
X X X When the applicant who under the general power of attorney was entitled to induct tenant, realise rent and evict tenants on behalf of executor of general power of attorney was, therefore, a 'landlord' within the meaning of Section 2(e) and here being landlord was also entitled to institute the petition for eviction under Section 14(1)(a), and as there was a relationship of landlord and tenant between the applicant/holder of general power of attorney and the non-applicant, therefore, he was entitled to institute the eviction petition against tenant/respondent and the ground of non-payment of rent having been made out against tenant the application for eviction was allowed."
13. Since the plaintiff is entitled to receive the rent and issue receipt in view of the General Power of Attorney, she is held to a landlady of the disputed house and is entitled to initiate the ejectment proceedings against the defendant. Under the rent agreement (Ex.P7), the defendant had agreed to pay rent to the plaintiff and attorney his tenancy in her favour. Now, he cannot be permitted to say that actually he is the owner of the disputed house and cannot himself be a tenant in the said premises. The law as to estoppel of a tenant under Section 116 of the Evidence Act is a recognition and statutory assimilation, of the equitable principles underlying estoppel in relations to tenants. The estoppel of a tenant is primarily in relation to his landlord who had let him into possession and that, accordingly, such tenant is precluded from questioning the title of such landlord. The Hon'ble Supreme Court in Tej Bhan Madan v. II Additional District Judge and Ors., A.I.R. 1988 S.C. 1413 has observed that the estoppel of a tenant is primarily in relation to his landlord who had let him into possession and such tenant cannot be permitted to deny that the landlord of such tenant had title of such property. Therefore, I find no infirmity in the findings recorded by the Courts below regarding the relationship of landlord and tenant between the plaintiff and the defendant. Learned counsel for the plaintiff did not assail before me the findings recorded by the Courts below on issue No. 3 regarding the jurisdiction of the civil court for ejectment of the tenant from the disputed house.
14. I have heard the arguments of learned counsel for the parties in the revision petition. Since I have already affirmed the finding that relationship of landlord and tenant is existing between the plaintiff and the defendant, I find no force in the revision petition filed by the defendant against the order of his ejectment on the ground of non-payment of rent. Since in the ejectment application, the defendant has disputed the title of the plaintiff on the disputed house and denied the relationship of landlords and tenant between them, the did not tender any rent in the ejectment application. The defendant was found in arrears of rent by both the authorities below. Both the authorities have recorded a finding that no evidence was led by the defendant to show that he had ever paid rent to the plaintiff with effect from 01.10.1986. It was not the case set up by the defendant that the rent was ever paid by him to the plaintiff and not received by her.
Facing with this situation, the learned counsel for the defendant, while relying on Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors., (2002-2)131 PLR 370 (S.C.), submitted that if the defendant is held to be a tenant in arrears of rent then he should be given an opportunity to tender the arrears of rent within a reasonable time before passing an order of ejectment against him. This submission of the learned counsel is not acceptable and is of devoid of force. The judgment of the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra) is not applicable to the facts and circumstances of the present case. According to the said decision, a tenant is entitled to deposit the deficient rent only if it is found that the tender made by the tenant on the first date of hearing was short or deficient. But in the present case, the defendant has denied the relationship of landlord and tenant and claimed himself to be owner of the disputed house. He did not pay any rent to the plaintiff and took the stand that he was not liable to pay the rent. Since the defendant denied the title of the plaintiff and did not pay any rent, both the authorities below have passed the order of ejectment against him on the ground of non-payment of rent. I find no infirmity or illegality in the order of ejectment passed against the defendant by both the authorities below. Therefore, I find no merit in the revision petition filed by the defendant.
15. In view of the aforesaid discussion, I dismiss both the Regular Second Appeals bearing No. 1242 and 1360 of 1995 filed by the plaintiff and the defendant, respectively. Civil Revision No. 4929 of 1998 filed by the defendant also stands dismissed.
No order as to costs.