Bawa Daswanda Singh vs Saswant Singh and Others

R.L. Anand, J.—This is a civil revision and has been directed against the judgment and decree dated 1.10.1980 passed by the Appellate Authority, Ambala, who affirmed the order dated 24.8.1979 passed by the Rent Controller, Jagadhri, who dismissed the application of Bawa Daswandia Singh u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act'') read with Haryana Urban (Control of Rent-Eviction) Act 1973.

The pleadings of the parties can be summarised in the following manner:-

Bawa Daswandha Singh petitioner (landlord) filed an application u/s 13 of the Act for ejectment of respondent Nos. 1 to 8 from the premises situated in the Yamunanagar as described in the heading of the petition and it was alleged that he was the owner and landlord of the premises consisting of residential quarters and vacant land situated near Bharat Starch and Chemicals Ltd., Yamunanagar, as shown in the plaint attached with the petition. Mana Singh father of the respondent took on rent one room, kitchen and a small kothri for one year at a rental'' value of Rs. 200/- per month. Later on he took three quarters along with the vacant land lying there from the petitioner at a rental value of Rs. 100/- per month besides water tax and house tax which had not been assessed by that time. The quarters were meant for the residence and were leased out for residence alone. The tenant was not to raise permanent or temporary construction on the demised premises without the previous consent in writing of the landlord. Said Mana Singh died long back leaving behind the respondents, who are his sons and daughters, as legal representatives. A'' though all the respondents are not in possession of the demised premises, yet in order to avoid all complications and remove all doubts they have been served with notice u/s 106 of the Transfer of Property Act terminating the tenancy in their favour with effect from 31.8.1972 and the respondents were requested to vacate the demised premises by 31.8.1972. Respondents Nos. 2 to 4 in their reply pleaded that the demised premises had been taken for the purpose of business and not for the purpose of residence and that the owners are merely residing for the purpose of guarding the factory. The construction over the demised premises was raised with the consent of the landlord. Ejectment of the respondents has also been sought on the ground that the premises were leased out to Mana Singh for the purpose of residence and he was not allowed to alter or construct any permanent or temporary structure on the demised premises. The respondents and their father have without the consent in writing constructed permanent building on the demised premises and have thus changed the user of the property. It was also pleaded by the landlord that the respondents and their father have constructed godowns and quarters and thus have converted the vacant land into building. It has also been pleaded that the respondents have impaired the value and utility of the property. The respondents have further separated themselves inter se and it amounts to subletting or transfer of the rights in each parcel of the property. The landlord also pleaded that he requires the premises for his personal use and occupation. The ground of non-payment of rent was also pressed into service and it was pleaded that the respondents had neither paid nor tendered arrears of rent with effect from 1.4.1970. It may be mentioned here that the main petition u/s 13 of the Act was filed on 3.4.1973.

Notice of the petition was given to the respondents. It was contested by respondents Nos. 2 to 4 who pleaded in their written statement that the petitioner was the landlord and Sarvshri Bachan Singh, Jaswant Singh and Jeet Singh and Man Mohan Singh were the tenants. Deceased Mana Singh along with his sons in the year 1950 or 1951 occupied the premises as a tenant under the petitioner for the purpose of running a factory at the rental value of Rs. 100/- per month. It was denied that there was any agreement of paying the rent of Rs. 200/- per month. It was further pleaded that the tenants were given the right to use the premises for their factory and making the construction as might be necessary. It was also pleaded that the tenants started the factory and raised construction at the expenses of Rs. 40,000/-. It was denied specifically by the respondents that the premises in question were taken on rent for residential purposes, rather these were taken on rent for manufacturing purposes and for installation of the flour and oil mill. Also it was pleaded that the tenants made all the construction over the demised premises to the knowledge of the landlord, who never objected to the same. The petitioner had been issuing receipts in the name of M/s. Manna Singh Mangat Singh and he accepted the rent from M/s. Manna Singh Mangat Singh as tenant. After the death of Mana Singh the landlord had been receiving rent from the partners of the said firm and it is now not open to the landlord to urge that there has been separation between the sons of Manna Singh. The respondents filed application in the Municipal Committee with the consent of the landlord, who granted sanction and thereafter the construction was raised and as such the landlord is legally estopped from alleging that the utility of the premises was impaired. It was also pleaded by the respondents that the landlord has acquiesced in the construction.. Other respondents were proceeded against ex parte in the trial Court.

The landlord filed rejoinder to the written statement in which he reiterated his allegations made in the petition and denied those of the written statement.

From the above pleadings of the parties, the trial Court framed the following issues :-

"1. Whether the respondents are liable to be ejected on the ground of non-payment of rent and other dues as alleged? O.P.A.

Whether the respondents and S. Mana Singh have changed the user of the land in dispute and are using the suit property for a different purpose other than the purpose for which the same was let out, as alleged in para 7(i) to (iii)? OPA.

Whether the respondent has impaired the value and utility of the premises in dispute? OPA.

Whether the respondents have subletted or transferred the rights in the property by way of separation, as alleged in para 7 (V) ? OPA.

Whether the premises in dispute are required by the applicant for his bona fide use and occupation, as alleged?

Whether the tenancy has not been legally terminated? OPR.

Relief."

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, the petition was dismissed. Under issues Nos. 2 and 3 it was held that neither the respondents nor their father Mana Singh had changed the user of the property in dispute, which was let out for commercial purpose. It was also held under Issue No. 3 that the respondents had neither impaired the value or utility of the property. The ground of subletting under issue No. 4 was also decided against the landlord. It will be useful for me to incorporate the reasons given by the Rent Controller while deciding issues Nos. 2 and 3 and those reasons are contained in paras Nos. 7 and 8, which are reproduced as under :-

"7. Both these issues are discussed together as they are interconnected. Applicant''s case is that the premises in dispute were rented out to Mana Singh for residential purposes. His case is that in the first instance one room, kitchen and small Kothri was rented out at a rental value of Rs. 200/- per annum but later on three quarters along with the vacant land lying there had been given on rent of Rs. 100/- per month. His further case is that now residents have changed the premises as business premises and have installed a flour and oil mill and a crusher therein. As against it, case of the respondents is that the premises have been taken for the purposes of running factory at the rent of Rs. 100/- per month and these were never taken for the residential purposes. In order to prove his case applicant has mainly relied on Ex. A.6, the rent note. Through it Mana Singh had taken on rent one room, kitchen and a Kothri along with the Sahan at a rental value of Rs. 200/- per annum from 1.5.1949 to 30.4.1950. It is argued by the counsel for the applicant that this rent note shows that the premises were not rented out as business premises but for residential purposes. Now applicant''s own case is that in the beginning one room, kitchen and small kothri was rented out at a rental value of Rs. 200/- per annum but later on Mana Singh took three quarters along with the vacant land lying there at a rental value of Rs. 100/- per month. So this rent note Ex. A-6 cannot determine that the three quarters along with the vacant land were earlier taken for residential purposes. The applicant has himself appeared as A.W. 6. In his cross-examination dated 8.8.1979, he slated that the quarters which were earlier with the respondents were given by him to Starch Mill. He has further stated that at the time the premises in dispute were given on rent at the rate of Rs. 100/- per month, no rent deed was executed. From this it appears that the premises which were given on rent by him to Mana Singh vide Ex. A-6 were different from the premises in dispute and these were later on transferred by him to Starch Mills.

Mana Singh had filed site plan in the Municipal Committee, Yamunanagar which shows that he wanted to construct flour and oil mill in the premises in dispute. Along with this plan are Ex. A-2 and A-3. Ex. A-2 shows that construction was to be made by Mana Singh for installing engine Chaki and Kohlu. R.W. 1 Paras Ram Record Keeper, Municipal Committee, Yamunanagar has staled that this plan v as sanctioned by their committee by Sarvshri Om Parkash Verma, Avtar Singh, Bawa Dasandha Singh and Raj Pal Nanda. It has not been denied that the applicant who was office bearer in the Committee had sanctioned the plan, what has been argued is that in his capacity as Vice President of the Committee, applicant might have sanctioned the plan in routine. There seems to be no force in this contention. Had the premises been let out for the residential purposes, it appears doubtful that the applicant would himself have sanctioned the site plan authorising tenants to raise construction and install flour and oil mills in his premises. Not only this, M/s. Khazan Singh, Mana Singh had been issued licence Ex. RW2/1 for installing a husking factory. This firm was registered under the Factory Act on 15.4.1955. R.W. 4 R.K. Sharma has produced license Ex. RW4/1. This shows that Khazan Singh, Mana Singh were appointed as Rice Millers with effect from 5.11.1952. There is no dispute that rice husking factory and kohlu etc. are on the premises in dispute. From all this I hold that the premises in dispute were given for purposes of business and not for the purposes of residence. Even if for the sake of arguments it is held that these premises were let out for residential purposes, the applicant is now estopped from raising this plea. He himself sanctioned the plan filed by Mana Singh permitting him to raise construction for installing Kohlu and thrasher etc. in premises in dispute. Construction was made on the premises by Mana Singh more than 20 years back. Applicant''s own witness A.W. 2 Tej Bhan has stated that at the time he made plan in 1966 the construction was about 15 or 16 years old. The applicant who as per his own version, was previously the M.L.C. Vice President of the Committee, Secretary of the Mukand Lal College and of Gurdawara Singh Sabha Committee, cannot now plead that he just sanctioned the plan in routine. In view of this, I hold that the respondents have not changed the user of the land in dispute and as such by raising construction they have not impaired the value and utility of the premises in dispute and on the other -hand all the constructions were made by them with the consent of the applicant. These issues are, therefore, decided against the applicant."

The landlord filed appeal u/s 15 of the Act in the Court of Appellate Authority, Ambala, who vide the impugned judgment dated 1.10.1980 dismissed the appeal and aggrieved by the judgments of the Courts below, the present revision petition by the landlord, which I am disposing of with the assistance of Shri M.L. Sarin, Senior Advocate, appearing for the petitioner, and Shri Harbhagwan Singh, Senior Advocate, appearing for the respondents.

Before me learned counsel for the petitioner has advanced arguments only on issue Nos. 2, 3 and 4 and I shall also confine my discussion on these issues.

The first contention which has been raised by the learned counsel for the petitioner is that it has been proved on the record that the property in dispute was let out for residential purposes and the respondents and/or their father have used the demised premises for the purposes other than for which the premises were leased out, without the written consent of the petitioner and, therefore, the respondent are liable to be evicted from the demised premises. The argument is devoid of any merit because it is not proved on the record that the demised premises in question were let out for residential purposes. Rather it is established that right from the very beginning the demised premises were let out for commercial use and the respondents raised the construction thereon with the consent of the landlord who always acquiesced to the said construction. In support of his contention Shri M.L . Sarin has placed reliance on Exhibit A-6, which was executed on 15.5.1949 and as per this rent note the tenancy was to start with effect from 1,5.1949. The case set up by the landlord in the ejectment petition is that the demised premises were let out on two occasions-firstly one room, kitchen and a small Kothri were given on rent at the rate of Rs. 200/- per month, and thereafter three quarters besides some vacant land was given on rent at the rate of Rs. 100/- per month. This document firstly has not been connected with the demised premises and secondly, it is not established from this document that the property was let out for residential purpose. The rent note Exhibit A-6 only established that Mana Singh took on rent one room, kitchen and a kothri along with the court-yard at a rental value of Rs. 200/- per month with effect from 1.5.1949. There is no rent note with regard to the second alleged tenancy through which three quarters besides some vacant land was leased out to Mana Singh at the rate of Rs. 100/- per month. In these circumstances it cannot be said that Ex. A-6 determines the character of the tenancy. It is also not established that the rent note (Ex. A-6) pertained to the demised premises. The petitioner has himself admitted in his cross-examination that the quarters which were earlier with the respondents were given by him to run the business of starch mill. He further stated that at the time when the premises were given on rent at the rate of Rs. 100/- per month no rent deed was executed. In these circumstances it has been rightly concluded by the Rent Controller that the premises given on rent by the landlord to Mana Singh deceased were different premises and later on transferred by him to starch mill. It is not established on the record that immediately after the letting out of the premises, Mana Singh had been using this property for residential purposes. Rather it is established by documentary evidence that Mana Singh applied to the Municipal Committee for raising construction of the mid premises, as he wanted to install engine, Chakki Kohlu etc. and this site plan was sanctioned. The application by Mana Singh was moved in the month of January, 1950. Once it is established that the demised premises in question were taken on rent for commercial use, it will not be open for the landlord to say that the respondents or their father Mana Singh have changed the user of the properly within the meaning of Section 13(2)(ii)(a) of the Act.

It was then argued by the learned counsel for the petitioner that it is proved on the record that the respondents have committed such acts as are likely to impair the value or utility of the demised premises and, therefore, he is liable to be evicted. The learned counsel also submitted that the respondents or their father Mana Singh did not seek any prior permission of the landlord before making the construction over the property and as such the respondents are liable to be evicted from the premises. This argument of Mr. Sarin is again misconceived because the ground of material impairment or utility of the premises is an independent one and no written consent is required, as argued by the learned counsel for the petitioner and the owner ought to have established whether the respondents have actually impaired the value or utility of the property so as to make him liable for eviction from the demised premises. In this regard it may be submitted that there is not an iota of averment in the rent petition as to when the tenant started his acts, which were likely to impair the value or utility of the property. On the contrary, the case of the respondents throughout was that the demised premises were let out for commercial purposes. They raised the construction to the knowledge of the petitioner and the petitioner had acquiesced to the construction and in this regard the tenants had successfully proved their case. It is established from the site plans A1, A2 and A3, coupled with the statement of R.W. 3 Paras Ram that the constructions were raised by the tenant in the year 1950/1951. There is a corroboration from the statements of Nanak Singh and Jaswant Singh. As I have just said, no written consent was required on the part of the landlord and it is established that the petitioner-landlord himself was the Municipal Commissioner of the Municipal Committee and he passed the necessary orders for sanctioning the plan which clearly suggests that the premises in question were let out for non-residential purposes. Immediately after its letting out, the tenant moved the Municipal Committee for sanctioning of the plans, which plans were approved by the petitioner who himself was the Vice-President of the Committee. In this view of the matter I affirm the findings of the Courts below on issues Nos. 2 and 3.

Faced with this situation, Shri Sarin then submitted that the respondents arc liable to be evicted from the demised premises on the ground of sub-letting. Supplementing his argument, Shri Sarin submitted that after the death of Mana Singh his sons have divided the tenancy premises by mates and bounds. Though the tenancy, according to Mr. Sarin is inheritable, yet it is not divisible. With the division of the tenancy premises by the heirs of Mana Singh, each heir is in exclusive possession of the demised premises and as such sub-tenancy stands proved. The argument is again devoid of any merit. It is a settled law that the tenancy rights of a tenant are heritable. The respondents are the legal heirs of the original tenant. It is the mode of enjoyment inter se between the heirs of the tenant with respect of the demised premises. No case law has been cited by the learned counsel for the petitioner in support of his argument. So long as the heirs of Mana Singh are in possession and in control of the demised premises, they cannot be held to be sub-tenants.

Learned counsel for the petitioner has relied upon Dharam Raj and another Vs. Roshan Lal and another, , and submitted that the premises in question were let out to Mana Singh for residential purposes and now the said premises are being used for running a factory, therefore the respondents are liable to eviction irrespective of the fact that such change of user is to the knowledge of the landlord as knowledge cannot be equated with the written consent. This citation is not applicable. It is not established on the record that the premises in question were let out for residential purposes; rather it is proved from the site plans A-1, A-2 and A-3 coupled with other documentary and oral evidence that the demised premises were initially let out for commercial use and right thereafter the same were being used as such. In these circumstances the citation relied upon by Shri Sarin is not applicable to the facts in hand.

Reliance was then placed on Shrinavas Kasherlal Palod v. Vital Shivagir Gosavi, 1996(2) All India Rent Control Journal 126, and it was submitted that long acquiescence on the part of the landlord would not save the tenant from the order of ejectment. The cited case is also not helpful to Mr. Sarin, because the basic requirement has not been proved by the landlord that the demised premises were ever let out for residential purposes. Reliance was also placed on Shambu Datt v. Balwant Mal (1968) 70 P.L.R. 790; Jagdish Chander v. Rulia (died) (1977) 79 P.L.R. 711 and Yogdheyan Singh and Others Vs. Devki Nandan and Others, , in order to supplement the case law referred to above, but the basic fallacy lies in the argument of Mr. Sarin as the landlord has failed to discharge his initial onus that the demised premises were let out for residential purposes. At no point of time it has been established that Mana Singh earlier used to reside in the demised premises or that thereafter he converted the user without the written consent of the landlord or without obtaining orders from the Rent Controller u/s 11 of the Act. The ground of material impairment of the demised premises also is not proved on the record. Rather it is established that the construction was raised by the tenant in order to run the factory. He submitted the plans right from 1951 before the Municipal Committee and those plans were also approved by the landlord-petitioner when he was the Secretary of the Municipal Committee, and in that regard his conduct become very relevant. The demised premises are also in the possession of the heirs of Mana Singh tenant.

No other point was urged before me.

Resultantly I am of the considered opinion that this petition is without any merit and the same is hereby dismissed leaving the parties to bear their own costs.