Delhi High Court
Hem Chand Etc. vs Hari Kishan, Jayna Cc on 23 February, 1996
Equivalent citations: 1996RLR189, 1996 A I H C 2707, (1996) 1 RENCR 563, 1996 WLC(RAJ)(UC) 189, (1996) 2 RENTLR 142
JUDGMENT C.M. Nayar, J.
(1) [ED. facts : Appellants had leased out suit premises to respondents 1 to 4 by means of lease deed dt. 30.5.57. who had sub-let portions of premises per consent in deed. Alleging that some portions have been unlawfully sub-let in 1965 & 1969 to respdt, 5, they obtained permission u/S 19 of Slum Areas Act on 4.6.70 and sued respdt. for eviction u/S. 14(i) (b), (c) & (j) of Delhi Rent Control Act. Respdts. 1 to 4 alone contested and filed separate w/Ss contending that they had not sub-let any portion to respdt 5 and they had sub-let same to one MK. Bhatia who had done unlawful sub-letting to respdt. 5 and that they have applied for permission to sue respdt. 5. They also alleged that one Manak Chand was co-owner and co-landlord. Respdt. no. 5 also took the same position contending that Manak Chand was necessary party and in his absence it was a case of partial eviction. Reply of three appellants was that partition had taken place between them and Manak Chand and respdts. were tenants of their portion. Arc held that there was no evidence that Manak Chand was co-landlord and that respdt. 1 to 4 lawful sub-tenants while respdt. 5 was authorised in a portion and unlawful sub-tenant of a hall, 2 Dallas and 2 stores; that the lease of 30 5.57 was only for 11 months and it permitted sub-letting only once and it was not a case of partial eviction. Respdts. 1 to 4 and respdt. 5 filed seprate appeals Rc Tribunal upheld the finding that respdt. 5 was an unlawful sub-tenant but did not grant eviction on the ground that Manak Chand continued to be co-landlord and the portion that had fallen to his share had not been separated and there was splitting of rent, Rs. 245.00 to appellants and Rs. 25.00 to Manak Chand, there was no splitting of tenancy and no severence of tenanted premises. Appeals were allowed and landlords appealed to High Court, contending that sub-letting to respdt. 5 was unlawful being in violation of lease deed dt. 30.5 57. High Court reproduced relevant portions of the deed.] After detailing above, judgment is :
(2) The reading of the above document will indicate that the tenants were authorised to sublet any portion of the property under their tenancy only once. In the present case, respondents 1 to 4 have sub-let the hall two Dalans and two stores more than once and the letting in favour of respondent No. 5, is. therefore, unauthorised. The plea taken by respondents that they were not bound by the terms of the lease deed dated May 30, 1957 and in fact were bound by the lease-deed dated June 1, 196l.was repelled as the respondent- at no stage of the proceedings, produced the alleged document dated June 1, 1961 Therefore, the courts correctly placed reliance on lease-deed dated May 30, 1957 to establish the rights inter-se between the parties. 10. The learned counsel for respondents have half-heartedly contended that the respondents were not, in any manner, restricted by the lease-deed dated May 30, 1957 and it was open for them to sublet the premises to any one any number of times. Alternatively, it has been argued that the second or third subletting, in any manner, has not been proved as the case of Bankey Behari Lal was not even pleaded in the eviction petition. The changed stance taken by respondents, in this Court will not improve their case. The law is well settled, firstly, that there must be a specific subletting and the consent must be to such a specific subletting, secondly that the lease-deed dated May 30, 1957 was foray limited period of 11 months and after that period expired, the tenancy came to an end by efflux of time and the respondents/tenants could not sublet the portions in question to respondent No. 5. This is so held by the learned Arc as the genesis of sub-letting will then be governed by the provision of law as contained in Section 14(1)(b) of the Act, which lays down that the tenant shall not sub-let assign or otherwise part with possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. In the present case, no such consent has been established by the respondents.
(3) The Supreme Court has also settled the law in M/s Shalimar Tar Products Ltd., v. HC. Sharma ; Shantilal v. M/s Vega Trading Corp. ; M/s Bajaj Auto Limited v. Behari Lal Kohli ; Dull Chand v. Jagmender Dass 40 (1990). DLT; M/s Bhoolchand v. M/s Kay Pee Cee Inv. and Rajinder Singh v. Dalip Chand 1995(2) Rent Law Reporter 301.
(4) These judgments have held that (a) general authority given by landlord to tenant to induct sub-tenants is not sufficient in law. The previous consent in writing of landlord in respect to each sub-letting separately is essential and in absence of such consent, (b) landlord is entitled to evict the tenant; consent given by the landlord to sublet premises during subsistence of contractual tenancy cannot be available to tenant after expiry of contractual tenancy. Therefore, on the basis of the settled law, as referred to above, the only option now left with the respondents is to plead that sub-tenancy in favour of respondent No. 5 was not unauthorised and was in accordance with the terms of the lease-deed dated May 30, 1957. The Arc as well as the Rc Tribunal have. on appreciation of evidence, clearly held that respondents 1 to 4 have sublet the demised premises in favour of respondent No. 5 which implies that the sub-letting was more than once and on perusal of the evidence on record, it cannot be said that the courts have misread or misconstrued the same and the findings suffer from an error of jurisdiction which calls for interference in the findings of fact as recorded.
(5) The next question which now arises for consideration is, as to whether, the application for eviction was bad for partial ejectment as well as for non-joinder of co-landlords. The Tribunal has reversed the finding of the Arc and held that the petition was liable to be dismissed on these grounds. There is no doubt that the law is clear on the point that the Rent Control Authority can either determine the lease as a whole or dismiss the application for eviction but he cannot order eviction from a portion so as to split up the tenancy which is single and indivisible. This is so held in Shantilal v. M/s Vega Trading Corp. ; Miss S. Sanyal v. Gian Chand ; S. Mohanlal v. V.R. Kondaiah and Jagatjit Industries Ltd. v. Rajiv Gupta 18(1980) D.L.T. 434.
(6) The learned counsel for the Appellants, on the other hand, has vehemently argued that in law there has been effective partition between the brothers by metes and bounds but no walls could be constructed in view of the tenants occupying the premises. He has assailed the findings of the Rc Tribunal on the ground that when the partition decree clearly earmarked each property, there was no cause to hold that the application was only for partial ejectment as no intervening walls were put up to separate the portions of Manak Chand. The portions allocated to each co-landlord was clearly earmarked as would be indicative from a bare perusal from the site plan Ex-AW1/1. This plan clearly states as follows: "The portion belonging to Shri Manak Chand shown by vertical lines." 15. The Tribunal also found that there was no document produced by the landlords showing as to how partition of the property in question had been effected between Manak Chand on the one side and the appellants on the other side. There is misreading of evidence on record as the counsel for the appellants has correctly brought to my notice that the factum of partition was admitted as would be indicative from the plan filed Ex. AW1/1 where the portion belonging to Manak Chand had been earmarked. The property is clearly partitioned by a decree of partition dated June 11, 1965. This decree has been filed in this Court along with the plan and it is established that such a partition in fact had taken place between the appellants and Manak Chand on that date. The reading of RW1, respondent Hari Kishan Rohtagi clearly proves this fact. The following part of him testimony by way of cross- examination may be reproduced as follows ; "It is correct that when the rent became payable at Rs. 270.00 p.m. the owners of the premises under our tenancy were the petitioners, and their elder brother Manak Chand. Thereafter on 11.665 partition was effected amongst the petitioners on the one hand and their elder brother on the other hand. Thereafter the portion that fell to the share of the petitioners and is under our tenancy, the rent for the same appropriated at Rs.245/"p.m. And I have been paying rent @ Rs. 245.00 p.m. to the petitioners."
(7) The above evidence will establish that there was indeed a partition on June 11, 1965 and the said decree has also been filed now in this Court to reiterate that fact. Similarly as stated above, the plan Ex. Aw 1/2 was part of the record of the case and in this background, it cannot be under-stood as to how the R.C. Tribunal gave a finding that the appellants were unable to show as to how the partition of the property had been effected between them and Manak Chand, particularly when respondent, Hari Kishan Rohtagi has himself accepted that partition took place on June 11, 1965. The splitting of rent of Rs. 270.00 in the partition i.e. Rs. 245.00 as payable to the appellants and Rs. 25.00 to Manak Chand leaves no manner of doubt that there has bean effective partition between the parties. The mere non-construction of walls or intervening walls to separate the portion of each party would he of no consequence on the face of clear cut division of the property by a partition decree passed by a court of competent jurisdiction. The said portions have been earmarked in the plan, as referred to above and it was not correct for the R C. Tribunal to hold that the eviction order could not be executed and the application for eviction was bad for partial ejectment.
(8) The Supreme Court in Mohar Singh v. Devi Charan clearly held that there was no splitting up the integrity and unity of the tenancy when there was a partition between the co-owners and consequently his transferee became the exclusive owner of one of the premises which came to that co-owner's share. The proposition as stated in paragraph 5 of the judgment reads as follows : "It is trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But Section 109 T.P. Act, provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. This is the true effect of the words shall possess all the rights...of the lessor as to the property or part transferred... occurring in Section 109, T.P. Act. There is no need for a consensual attornment. The attornment is brought about by operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of the reversion. There is no need for the consent of the tenant for the severance of the reversion and the assignment of the part so severed. This proposition is too well settled to require any further elucidation or reiteration. Suffice it to refer to the succinct statement of the law by Wallis, C.J. in Kannyan v. Alikutty Air 1920 Madras 838 at p. 840 (FB) : A lessor cannot give a tenant notice to quit a part of the holding only and then sue to eject him, from such part only, as pointed out quite recently by the Privy Council in Harihar Banerji v. Ramashashi Roy (AIR 1918 Pc 102). Consequently, if the suit is brought by the original lessor the answer to the question referred to us must be in the negative because such a suit does not lie at all. Other considerations, however, arise where as in the present case, the original lessor has parted in whole or in part with the reversion in part of the demised premises. Under the general law- such an assignment effects a severance and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment."
(9) For the aforesaid reasons, the appeals are allowed and an order of eviction is passed in respect of the premises, as referred to at serial Nos. 7 and 8 of paragraph 16 of the eviction petition. These portions are held to be sub-let in violation of the terms of the lease as well as on the basis of settled law that the respondents/tenants have not obtained any written consent of the landlords. The respondents are, however, granted time till 31st August, 1996 to vacate the suit premises. There will be no order as to costs.