Punjab-Haryana High Court
B.R. Gupta vs Vikas Kumar on 24 February, 1997
Equivalent citations: (1997)115PLR769
JUDGMENT V.K. Jhanji, J.
1. This revision petition is directed against order dated 25.7.1996 of the executing Court whereby application filed by the petitioner to execute the ejectment order passed by the Rent Controller has been ordered to be consigned to record-room sine-die.
2. In brief, the facts are that Shop-cum-flat No. 7, Sector 22-D, Chandigarh, is owned by petitioner and one Kaushal Kumar, petitioner is owner to the extent of 3/4th share, whereas Kaushal Kumar is owner of 1/4th. Petitioner let out a portion of the premises to Vikas Kumar (respondent herein) who also happens to be son of Kaushal Kumar, other co-owner. Since respondent made a default in payment of rent, petitioner filed an ejectment application on 30.11.93 against the respondent on the ground of non-payment of rent. Application was resisted by the respondent and finally on 25.3.1995 the Rent Controller passed an order of ejectment against the respondent. The operative part of the order reads as under:-
"As per. my findings on the above stated issues the petition of the petitioner succeeds and the same is hereby allowed with no order as to costs. The respondent is directed to put the petitioner into vacant possession within two months from today. Memo of costs be prepared and the file be consigned to records."
Respondent having felt aggrieved of the order of the Rent Controller, filed an appeal before the appellate Authority. Ejectment of the respondent was stayed by the appellate Authority subject to his depositing the arrears of rent which was more that Rs. one lac. Respondent failed to deposit the arrears of rent. He also did nor appear on 17.7.1995 when the appeal was called for hearing and thus, the appeal was dismissed in default, meaning thereby that ejectment order dated 25.3.1995 assumed finality. Since respondent failed to deliver the possession pursuant to the order of ejectment passed by the Rent Controller, petitioner filed an execution application on which executing Court on 22.5.1996 ordered that possession be got delivered to the petitioner by breaking open the lock of tenanted premises. In order to defeat the claim of petitioner to execute the ejectment order which he had lawfully and validly obtained, the respondent filed objections to the execution on 1.6.1996 alleging that he has purchased half share of l/4th share owned by Kaushal Kumar vide registered sale-deed dated 23.5.1996. In his objection petition, he stated that by purchase of property he has become co-owner and as such, order of ejectment cannot be executed against him. He submitted that ejectment order dated 25.3.1995 has become redundant and inexecutable. In reply to the objections, petitioner submitted that respondent took the premises on rent from him and not from Kaushal Kumar and the relationship of landlord and tenant existed only between him and the respondent. Petitioner submitted that Kaushal Kumar never inducted the respondent as a tenant. He also brought to the notice of executing Court that Kaushal Kumar had made an application under Order 1 Rule 10, Code of Civil Procedure, in the rent application, for being impleaded as a party which was dismissed. Thereafter, Kaushal Kumar filed a civil suit and obtained an exparte order of injunction, but subsequently the same on contest was vacated. He further submitted that in a suit for recovery of rent filed by the petitioner against the respondent, Kaushal Kumar moved an application for impleading him as a party respondent, but that application too was dismissed by the Sub Judge Ist Class, Chandigarh. He prayed that decree being executable be got executed and possession be got delivered to him. The learned executing court relying on a Division Bench judgment of this Court in Banarsi Dass v. Devi Dayal and Ors., (1967)69 P.L.R. 417 has consigned the execution application to record-room sine-die by holding that respondent having purchased 1/8th share from the other co-owner is not bound to surrender possession to the petitioner and the decree has become inexecutable. The present revision petition has been filed against the order of the executing Court.
3. Challenging the order of the executing Court, learned counsel for the petitioner has contended that respondent is estopped from denying the relationship of landlord and tenant and setting up a tile in him without delivering possession to the petitioner who had inducted him as tenant. Against this, counsel for the respondent has contended that the executing Court has rightly held that decree has become inexecutable on the basis of Division Bench judgment of this Court in Banarsi Dass v. Devi Dayal and Ors., (1967)69 P.L.R. 417. Counsel contended that the respondent having acquired a paramount title, it is open to him to resist eviction. Counsel also contended that the order of the executing Court being one under Order 21 Rule 97, Code of Civil Procedure, the present revision petition is not competent as an appeal lies against that order.
4. After hearing the learned counsel for the parties at some length, I am of the view that the order of the executing Court is not sustainable and is to be set aside and the revision petition filed by the petitioner deserves to be allowed.
5. Estoppel between the landlord and tenant grows out of injustice of permitting a possession, obtained for a specific purpose, to be witheld after that purpose has failed or has been fulfilled. It is applicable whenever an attempt is made to retain possession of the property in violation of good faith and to the injury of a person to whom it rightfully belongs. Rule of estoppel is contained in Section 116 of the Indian Evidence Act. It provides that no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had title to such possession at the time such licence was given. From a reading of this provision, it is clear that during the continuance of tenancy, tenant or licensee is precluded from saying that his landlord or licensor had no title at the commencement of the tenancy. It means that the person taking the property on rent from one of several co-owners would be precluded from disputing his landlord's exclusive title to receive rent or sue for an ejectment unless he surrenders possession to a person from whom he had taken the property on rent. Reference in this regard be made to a decision of the Privy Council in Chadrika Prosada v. Bombay Baroda & Central India Ry. Co., AIR 1935 Privy Council 59, wherein it has been held that a tenant cannot dispute his lessors' title so long as he remains in possession under an agreement which he has made with them. The Privy Council held that where, after the expiry of the period fixed in a lease the tenant continues in possession as tenant on same terms expressed in the lease, he cannot claim adverse possession and the lessor can recover the property back. This rule was reiterated by the Privy Council in Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd. and Ors., AIR 1937 Privy Council 251. The Privy Council held that Section 116 of the Evidence Act does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. The Section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that particular landlord had at that date a title to the property. The section applies against the lessee, any assignee of the term, any sub-lessee, or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. In Sri Ram Pasricha v. Jagannath and other, AIR 1976 S.C. 2335, an argument was raised before the Apex Court by Sh. V.M. Tarkunde, counsel for the tenant, that unless the landlord is also the absolute owner of the premises, he cannot evict the tenant. He had argued that landlord means landlord under the appropriate General Clauses Act and therefore, since there are other co-sharers the plaintiff alone could not file the suit for eviction. This submission was not accepted by the Apex Court. The Apex Court held that the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The Court observed:
"The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such."
It has thus, been settled by the Privy Council and the Supreme Court that if the tenant wishes to dispute the title of the person with whose permission he had come in possession, he must go out of possession and only then he may have his title, if he has one, tried in a suit for ejectment of the person restored to possession.
6. In Avtar Singh v. Sant Lal, 1981(1) R.L.R. 312, a learned Single Judge of this Court had taken the view that section 116 of the Evidence Act does not debar or estop the licensee or a tenant from pleading a paramount title disentitling his landlord or licensor to claim his eviction. In that case, plaintiff took on lease for 10 years some plot of land for his auto-mobile service from the owner. Defendant took from the plaintiff on licence for one year disputed shed on rent for carrying out repairs of motors etc. Since defendant did not vacate the shed after the expiry of licence period, plaintiff terminated the licence and filed a suit for mandatory injunction directing the defendant to vacate the premises. Defendant contended that plaintiff had sub-let the land and the suit for mandatory injunction was maintainable. Trial Court dismissed the suit, but the first appellate. Court decreed the suit. In second appeal before this court, defendant produced sale-deed as additional evidence whereby he claimed to have purchased the entire property from its original owner. Licensee contended before the High Court that because of purchase he is not liable to be evicted. On these facts, question arose as to whether plaintiff who allowed the defendant to occupy the premises as a licensee is entitled to a decree for mandatory injunction directing his licensee to vacate the premises. The learned Singh Judge held that plaintiff would not be entitled to relief of mandatory injunction as he ceased to be his licensee because of transfer of title in his favour. The learned Single Judge allowed the appeal and restored trial Court's decree dismissing the suit. However, the view of the learned Single Judge did not find favour with the Apex Court when the matter was taken up in appeal. Their Lordships of the Apex Court, in this case (Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857) while setting aside the decision of the High Court held that defendant was a licensee and he must be deemed to be always a licensee. "It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him in which case there would be clear merger." As the defendant in that case had not surrendered possession of the property to the plaintiff after the termination of licence and institution of the suit, their Lordships of the Supreme Court held that plaintiff is entitled to recover possession of the property. In the instant case, respondent is neither claiming that he has acquired title from the petitioner or some one claiming under the petitioner nor he has so far surrendered possession to the petitioner and, therefore, is not entitled to resist possession in execution of the decree obtained by the petitioner. As regards the judgment of the Division Bench in Banarsi Dass's case (supra), upon which strong reliance has been placed by respondent's counsel and on the basis of which the trial court has consigned the execution application to record-room, it is only to be noticed that the Division Bench judgement had taken the same view as had been taken by learned single Judge of this Court in Avtar Singh's case (supra) which however, did not find favour with the Apex Court. In this view of the matter, the decision of Division Bench in Bansarsi Dass's case is of no help to the case of respondent. Counsel for the respondent has also cited some more judgements, but it need not burden this judgement by noticing the same as the case in hand is squarely covered by decision of the Supreme Court in Sant Lal Jain's case (supra) except, that in the present case the relationship between the parties is that of landlord and tenant while in that case relationship was that of licensor and licensee.
7. The other contention of counsel for the respondent that revision petition is not competent as the order impugned therein was passed under Order 21 Rule 97, Code of Civil Procedure, and an appeal lies against that order, is without any merit. Rule 97 comes into play only when the officer entrusted with warrants of delivery goes to the spot to give actual delivery and the delivery of the possession in execution of a decree is resisted or obstructed and not prior to that. In this case, objections were filed before the officer had gone to the spot to deliver possession by breaking open the lock of the tenanted premises and thus, the objection filed by the respondent would be one under Section 47, Code of Civil Procedure, relating to execution discharge or satisfaction of the decree. Against the order under Section 47, Code of Civil Procedure, only revision petition is maintainable and that has rightly been preferred by the petitioner.
8. For the reasons recorded above, this revision petition is allowed with costs, and the order of executing Court is set aside and the executing Court is directed to issue warrants of possession forthwith and if need be, police assistance be also provided. Costs are quantified at Rs. 5,000/-.