Punjab-Haryana High Court
Mahant Karam Singh And Ors. vs Shri Mulakh Raj And Anr. on 9 April, 1992
Equivalent citations: (1992)102PLR89
JUDGMENT G.C. Garg, J.
1. Petitioner sought ejectment of respondents from the premises in dispute situated in Partap Bazar Amritsar on the grounds, amongst, others, that it tuts become unfit for human habitation. It was stated that the petitioner1 purchased the premises through sale deed dated May 17, 1970 and thus, became landlord qua Devi Dass who was tenant of , the vendor,. 'An intimation of transfer of premises in favour of the petitioner was sent to Devi Dass through registered post which was received by him on June 13, 1970. Devi Dass died an February 3, 1971 and before his death, he executed a Will in, favour of the respondents and they were, therefore, in possession, of it as heirs and legal, representatives Ejectment was sought on, the ground that the , respondents have failed to pay or tender rent from May 17, ,1970 onwards- and that the premises have become unsafe and unfit for human habitation.
2. Respondents admitted possession of the premises and that Devi Dass was tenant therein under the previous landlord, but disputed the rate of rent. Execution of Will by Deyi Dass- in their favour was admitted. The validity of sale deed in favour of the petitioner conveying the property to him was, however, questioned. It was denied that the premises in dispute was in a dilapidated condition and had become unfit and unsafe for human habitation. The jurisdiction of learned Rent Controller to entertain the ejectment application was not disputed.
3. Arrears of rent were tendered at the rate of Rs. 20/- per month. The tender was accepted and the ground of non-payment of arrears of rent was given up. The pleadings of the parties gave rise to the following issues : -
1. Whether relationship of landlord and tenant exists between the parties ? OA.
2. Whether the tenancy has been terminated by a valid notice? OA.
3. Whether the demised premises have become unfit and unsafe for human habitation and the applicant requires the same for reconstruction ? OA.
4. Relief.
4. Learned Rent Controller, on consideration of entire matter, concluded that there existed relationship of landlord and tenant between the parties, tenancy had been terminated by a valid notice and that the premises have become unsafe and unfit for human habitation. Learned Rent Controller, consequently ordered ejectment of the respondents.
5. Respondents preferred an appeal before the appellate authority and only contested the findings as returned by learned Rent Controller under issue No. 1. Learned appellate authority set aside the finding of learned Rent Controller, under issue No. 1 and came to the conclusion that though there existed relationship of landlord and tenant between the petitioner and Devi Dass, yet there was no such relationship between Karam Singh on one hand and the present respondents on the other. In the result, the appeal was allowed and the order of ejectment passed by learned Rent Controller set aside.
6. Aggrieved by the order of learned appellate authority, pre- sent revision was filed by landlord Karam Singh who is now represented by his legal representatives.
7. Learned counsel for the petitioner submits that a specific allegation was made in paras 8, 9 (a) of the petition to the effect that the respondents' were in possession of the shop in dispute as heirs and legal representatives of Devi Dass and that they failed to pay or tender rent to the petitioner with effect from May 17, 1S70 and the respondents, in the written statement, admitted the allegations as made in para 8 of the petition and while replying to para 9 (a) of the petition, they--stated as under :-
"Para 9 (a) of the application is denied. Rent of the premises is Rs. 8/- per month but the present applicant is illegally demanding Rs. 20/- per month which has been tendered by the respondent-tenants, but they reserve their right to recover the ... excess realised by separate proceedings".
By reference to these pleadings, learned counsel for the petitioner submits that tenancy being heritable, relationship of landlord and tenant is clearly admitted in terms of averments made in the written statement. Learned counsel also referred to the fact that there did not exist any pleadings on the part of the respondents from which it could be inferred that they had raised a plea now sought to be raised to the effect that there existed no relationship of landlord and tenant between the parties. According to the learned counsel, learned appellate authority has erred in deciding Issue No. 1 in favour of the respondents and against the petitioner by considering as if the present ejectment was sought on the ground of sub-letting. Consent of landlord for transferring lease hold rights in favour of a third person was required only to save ejectment of transferee on the ground of sub-letting. According to learned counsel, present is a case where the respondents are in possession of the premises as heirs of Devi Dass, Jit Kaur being brother's daughter of Devi Dass. Nothing has been brought on record to show that he had a better heir than Jit Kaur available to inherit the rights of Devi Dass in preference to Jit Kaur. In any case, according to learned counsel, it will make no difference, if Devi Dass has made a Will and transferred his tenancy rights in favour of Jit Kaur, her heir. This would not be a case of transfer of lessee rights in favour of a stranger but in favour of an heir who is otherwise entitled to succeed to the estate of deceased-tenant.
8. Undisputably, Devi Dass was a tenant on the premises in question till the date of his death and thereafter, the respondents are in possession thereof. Learned counsel appearing for the respondents even admitted that the respondents are heirs of Devi Dass but contended that once the tenancy rights are bequeathed by a Will, it was necessary to obtain the consent of the landlord for creating relationship of land and tenant between the parties and in the absence thereof, there did not exist relationship of landlord and tenant and at the most, the respondents shall be treated as trespassers. Learned counsel for the respondents thus, supported the finding, as returned' by learned appellate authbrity holding that there existed no relationship of landlord and tenant between the parties.
9. In Smt. Daljit Kaur v. Smt. Rukman, 1988 (2) Rent Control Reporter 650, this Court happened to consider the competency of a statutory tenant to transfer his tenancy rights by Will and it was held that a bequeath of tenancy rights by a statutory tenant in favour of a transferee cannot but stand on a different footing than one to his legal heirs. As noticed above, in the present case, the tenancy rights have' been bequeathed in favour of an heir who would otherwise succeed to the estate of Devi Dass/deceased tenant and thus, in my opinion, written consent of the landlord to transfer the tenancy rights in favour of an heir was not required though such may be the requirement in the case of a bequeath of such rights in favour of a stranger transferee as that would otherwise be a case of sub-letting. Once it is held that Jit Kaur who is in possession of the premises, is an heir of Devi Dass, it has to be held that she is a tenant, the tenancy being' heritable.
10. Learned appellate authority noticed that there was no specific pleading in the written statement about denial of existence of relationship of landlord and tenant between the parties but allowed the question to be raised on the ground that landlord had also not specifically pleaded in the petition that the present respondents were tenants in the demised premises. It was also noticed that there was no specific mention about the tenancy rights having been bequeathed in favour of the present respondents and thus, observing that "obviously he did not make specific mention of his tenancy rights because he thought that these rights were part and parcel as his karobar i. e. business in the demised premises which he specifically bequeathed to Mulkh Raj and Jit Kaur", concluded that the respondents had made a clear plea in the written statement to the effect that they had come to occupy the premises in question as heirs and legal representative of deceased Devi Dass under a Will executed by the latter cannot now be heard to say, either that the Will did not devolve on them the testator's tenancy rights or that they had occupied the premises in any other capacity. If the respondents are in possession of the premises in view of tenancy .rights having been bequeathed in their favour and Jit Kaur who also happened to be the heir of testator, they in my view cannot in any situation be held to be in possession of the premises in any other capacity except as a tenant, the tenancy being heritable. The view of learned appellate authority that transfer of tenancy rights under the Will would amount to assignment and not devolution of interest and, therefore, such a transfer without written consent of the landlord, the transferee would not be a tenant within the meaning of Section 2 (i) of the East Punjab Urban Rent Restriction Act, in my view, is not correct. In the present case, as already noticed, assignment of tenancy rights, if any, under the will is not an assignment of tenancy rights in favour of a stranger but is in favour of an heir under the Hindu Succession Act. It is clearly proved on the record that deceased Devi Dass did not leave behind any heir of Class-I and that Jit Kaur is the brother's daughter. Provisions of Section 2 (i) of the aforesaid Act on which much reliance has been placed by learned counsel for the respondents, has no application to the facts of the present case. Jit Kaur who is admittedly, an heir of Devi Dass and in possession of the premises whether as an heir or beneficiary under the Will, will certainly be a tenant and cannot be said to be in possession in any other capacity.
11. While replying to para 9 (a) of the application for ejectment, the respondents after making a mention about tender, used the words "respondents-tenant, but reserve their rights to recover the excess in separate proceedings". This is also a clear assertion of their rights as tenants.
12. No other point was urged. The finding that the premises have become unsafe and unfit for human habitation was also not challenged.
13. In view of the aforesaid discussion, I hold that possession of the respondents over the premises in dispute was that of a tenant and there existed a relationship of landlord and tenant between the parties. The finding of the learned appellate authority under Issue No. 1 is consequently set aside. The revision petition succeeds and the order of the learned appellate authority is set aside and that of the Rent Controller restored. The respondent are, however, allowed three months time to Vacate the premises.