Amarjit Kaur and Another vs The Muktsar Co-operative Marketing-cum-Processing Society Limited and Others

Satish Kumar Mittal, J.—The tenants have filed this revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949, challenging the ejectment order dated 30.3.2006, passed by the Appellate Authority, whereby the order dated 9.11.2004, passed by the Rent Controller, dismissing the ejectment application of the respondent-landlord, has been set aside.

In this case, the respondent Society filed the ejectment application against the petitioners, who are the legal representatives of Harnek Singh, on the ground of non-payment of rent and the demised premises having been unfit and unsafe for human habitation.

In the petition, it was alleged that the respondent Society is the owner of the demised premises and the same was rented out to Harnek Singh on a monthly rent of Rs. 60/-. The said Harnek Singh had expired and after his death, his legal representatives (petitioners herein) came in possession of the demised premises as tenants, but they did not pay the arrears of rent. The ejectment application was filed against them on the ground of non-payment of rent, and the demised premises have become unfit and unsafe for human habitation.

The petitioners contested the said ejectment application on the ground that the demised premises is not owned by the respondent Society. Rather the same was owned by Harnek Singh and after his death, they came into possession of the demised premises as owners. It was alleged that they are in possession of the demised premises as owners. It was alleged that they are in possession of the demised premises for the last more than 22 years and they have also become owners of the same by way of adverse possession, as their possession is hostile, open and adverse to all, including the respondent Society.

Since the petitioners denied the ownership of the respondent Society and asserted their ownership on the demised premises, they did not tender the rent on the first date of hearing.

On the pleadings of the parties, various issues were framed, including issues No. 2-A and 2-B, to the following effect:

2A. Whether there is a relationship of landlord and tenant between the parties? OPA

2B. Whether the respondents have become owners of the demised portion by way of adverse possession? OPR

After considering the evidence led by both the parties, the Rent Controller held on the aforesaid issues that relationship of landlord and tenant exists between the respondent Society and Harnek Singh and after the death of Harnek Singh, between respondent Society and the petitioners. It was held that the respondent Society was owner of the demised premises and the plea taken by the petitioners that their predecessor Harnek Singh was owner of the suit property was rejected. It was also held that the petitioners cannot be held to be owners of the premises by way of adverse possession, because possession of the tenant is permissive and the same cannot be converted into adverse possession, unless the person in possession first surrenders the possession to the owner of the property and thereafter enters into the property to claim hostile title. After recording the said finding, it was observed that the respondent Society has not led any evidence showing that the building is unfit and unsafe for human habitation. Therefore, the petitioners-tenants are not liable to be ejected on the said ground. Regarding non-payment of rent, the petitioners were directed to make payment of arrears of rent to the respondent Society with effect from 1.3.1980, within a period of three months from the date of passing of the order.

The said order was challenged by the respondent Society in appeal. The Appellate Authority has set aside the order of the Rent Controller on the ground that when the petitioners-denied the relationship of landlord and tenant and pleaded their ownership by way of adverse possession and even did not tender the arrears of rent on the first date of hearing, then at the time of final adjudication, they are not required to be given fresh opportunity to make payment, in view of the decision of the Supreme Court in Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors. (2002) 131 P.L.R. 370. The Appellate Authority came to the said conclusion on the basis o the decision of this Court in Hukama Devi and Others Vs. Bhagwan Dass, , wherein it was held that if the tenant denies the relationship of landlord with him and claims ownership over the demised premises, then the tenant is not entitled for the protection under the rent laws. In that judgment, it has also been observed that in such situation the protection provided to the tenant under the decision of Rakesh Wadhawan''s case (supra) for providing second opportunity to the tenant to make payment of deficient arrears of rent at the time of final adjudication of the matter, will not be available.

Against the aforesaid order of the Appellate Authority, the present revision petition has been filed by the petitioners-tenants.

Learned Counsel for the petitioners contends that both the courts below have erred in law as well as facts, while recording the finding that the respondent Society is owner of the demised premises and while further holding that Harnek Singh, predecessor of the petitioners, was not owner of the demised premises.

After going through the orders passed by the Rent Controller as well as the Appellate Authority, and hearing counsel for the parties, I do not find and ground to interfere in the finding of fact recorded by both the courts below on the issue of ownership of the demised premises. While referring to the documentary evidence, it has been held by the Appellate Authority that vide resolution dated 20.10.1976, the demised premises was rented out by the respondent Society to Harnek Singh on monthly rent of Rs. 60/-. The payment of rent by Harnek Singh has also been proved, as various receipts were issued in this regard. The audited account of the respondent Society, placed on record, also indicates that the demised premises was on rent with Harnek Singh.

Learned Counsel for the petitioners could not point out any illegality or perversity in the said finding of fact. It is well settled that in the revisional jurisdiction of this court, the findings recorded by the courts below are not to be interfered, until and unless the same are totally perverse and contrary to the evidence on record. In the instant case, I do not find any such perversity in the finding of fact recorded by both the courts below. Since in this case, the petitioners have categorically denied the ownership of the respondent Society and put their claim to be owners of the demised premises, they are no more entitled for the protection provided under the rent laws or under the decision of the Supreme Court in Rakesh Wadhawan''s case (supra). In Hakama Devi''s case (supra), this Court has observed as under:

Therefore, an unscrupulous tenant like the petitioner cannot first be permitted to take the stand that he is not the tenant under the landlord and then to claim that he is a tenant but he should be permitted to deposit the assessed arrears of rent. If such an interpretation is given to Section 13(2) then many tenants may take the stand that there is no relationships of landlord and tenant. In such a case a tenant would successfully delay the payment of rent. Therefore, there cannot be any obligation on the Rent Controller to make an assessment about the arrears of rent once such a stand has been taken by the tenant. The objection of making assessment of the arrears of rent, interest and cost by the landlord is that in case there is a dispute with regard to rate of rent or the period of rent, house tax, cost and interest etc. then he may not suffer because of short tender. But in a case where the tenant refuses the liability to pay the rent, the question of assessment would not at all arise. For the afore-mentioned proposition, reliance can be placed on the judgment of the Supreme Court in Sheela v. Firm Prahalad Rai Prem Prakash, (2000) 131 P.L.R. 6 (S.C.). The Supreme Court considered the provisions of Section 11(g) of the Transfer of Property Act, 1882 read with Section 116 of the Evidence Act, 1872 for the purpose of finding out whether the right of a landlord could be adversely affected u/s 12 of the M.P. Accommodation Control Act, 1961. Holding that a disclaimer by the tenant would affect adversely and substantially the interest of the landlord.

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The protection of rent laws has also been denied to a tenant who has denied relationship of landlord and tenant because such a tenant can never be considered to have claimed protection of the rent laws. This proposition has been laid down in the case of Sultan v. Ganesh (1998) 1 S.C.C. 664. Similar view appears to have been taken in the case of Sankaran Pillai(dead) by Lrs. Vs. V.P. Venuguduswami and Others, .

No contrary judgment has been cited by learned Counsel for the petitioners. Thus do not find any ground to interfere in the impugned order, passed by the Appellate Authority.

Dismissed.