Bhaiya Ram vs Mahavir Prasad

P.C. Pandit, J.—This is a tenant''s petition u/s 10 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) against the order of the Appellate Authority confirming on appeal the order of the Rent Controller evicting him from the premises in dispute.

One Nand Ram was the owner of the house in dispute which is situate on Jhajjar Road in Rohtak. He had given it on a monthly rent of Rs. 8/- to Bhaiya Ram. On 11th of June, 1965. he entered into an agreement of sale of this house with Bhaiya Ram for Rs. 2,000/-. Rs. 100/- was taken by him as earnest money and it was stipulated that the sale deed would be executed and registered within two months on the receipt of the balance of Rs. 1,900/-. If Bhaiya Ram did not pay the balance of the purchase money within the period fixed, then Nand Ram was authorised to forfeit the amount of the earnest money. If, on the other hand, Nand Ram did not get the deed executed and registered on the payment of Rs. 1.9000/- by Bhaiya Ram, then the latter would be entitled to get back Rs. 100/- paid by him as earnest money and Rs. l0()/- more by way of penalty. It was further mentioned in the agreement that it was the responsibility of Nand Ram to satisfy Bhaiya Ram about his title to the house in question by showing him necessary papers. Instead of executing the sale deed in favour of Bhaiya Ram, Nand Ram, however, sold the house in dispute by a registered deed on 21st of July, 1965, to Mahavir Prasad for Rs. 2,500/. After having purchased this house, Mahavir Prasad, on 26th of July, 1965, sent a notice to Bhaiya Ram to pay the arrear of rent and vacate the house within one week and hand over its possession to him. as it was needed by him for his personal accommodation. On 3rd of August, 1965, Bhaiya Ram issued a notice to Nand Ram calling upon him to execute the sale deed regarding the house in his favour, as he was willing to pay the balance of the purchase money. Since Bhaiya Ram did not vacate the house Mahavir Prasad, on 27th of August, 1965, filed an application u/s 13 of the Act for ejectment against him before the Rent Controller on two grounds, viz. non payment of rent and requirement of the premises for his own personal occupation.

Bhaiya Ram, on his appearance in Court, paid the arrears of rent together with interest and costs, but contested the ejectment application alleging that before the house was sold to Mahavir Prasad by Nand Ram, the latter had entered into an agreement with him for the sale of that very house, on 11th June, 1935, as mentioned above. After the execution of the agreement, he was in possession of the house not as a tenant of Nand Ram, but in part performance of that agreement u/s 53-A of the Transfer of Property Act, about which fact Mahavir Prasad had full knowledge. It was also pleaded by him that Mahavir Prasad had no personal need of the premises in dispute.

On the pleadings of the parties, the following issues were framed:

Whether there exists relationship of the landlord and tenant between the parties ?

Whether the respondent is liable for ejectment for grounds other than non-payment of rent mentioned in the application ?

Whether section 53-A of Transfer of Property Act is a bar to the filing of present application and this can be gone into by the Rent Controller ?

The Rent Controller came to the conclusion that there was relationship of landlord and tenant between Mahavir Prasad and Bhaiya Ram and section 53 A of the Transfer of Property Act did not, in any way, stand in the way of Mahavir Prasad in moving the ejectment application. It was further held by him that the landlord bona fide required the premises for his personal occupation On these findings, the application of ejectment was granted and Bhaiya Ram was directed to vacate the premises within three months.

Against that decision, Bhaiya Ram went in appeal before the Appellate Authority, which confirmed the findings of the Rent Controller and dismissed the appeal. Bhaiya Ram has filed the present revision petition against that order.

Learned Counsel for the petitioner has raised the following two contentions before me:

(1) That both the Rent Controller and the Appellate Authority had erred in law in holding that there existed the relationship of landlord and tenant between Mahavir Prasad and Bhaiya Ram and further that section 53-A of the Transfer of Property Act was no bar to the filing of the present ejectment application by Mahavir Prasad, and

(2) that in any case, since no notice u/s 106 of the Transfer of Property Act terminating the lease in favour of Bhaiya Ram had been issued by Mahavir Prasad before filing the ejectment application, no order for the eviction of the tenant u/s 13 of the Act could be passed against him.

As regards the first contention, it is true that an agreement of sale had been executed by Nand Ram in favour of Bhaiya Ram regarding the house in dispute on 11th June, 1965, before it was sold to Mahavir Prasad, but that agreement by itself did not create any interest in or charge on that property in favour of Bhayia Ram. The submission made on his behalf, however, was that by virtue of the principles of part performance as contained in section 53 A of the Transfer of Property Act, Mahavir Prasad was debarred from enforcing any right in respect of the house in dispute against Bhaiya Ram. In other words, he could not file an application for ejectment against Bhaiya Ram. According to the petitioner, after 11th of June 1965, he remained in possession of the house hot as a tenant But under the agreement of sale executed by Nand Ram in his favour. He ceased to be a tenant with effect from 11th June 1965 and no order of ejectment could, therefore, be passed against him under the provisions of the Act.

The question for decision, therefore, is whether the provisions of section 53-A of the Transfer of Property Act are attracted in the present case or not.

Section 53-A of the Transfer of Property Act says:

Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract taken possession of the property or any part thereof, of the transferor being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee Ins performed or is willing to perform his part of the contract, then, notwithstanding that the contract though required to be registered has not been registered or where there an instrument of transfer that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract;

Provided that nothing in this section shall effect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." Admittedly, Bhaiya Ram was already in possession of the house when the agreement for sale was executed. In order to avail of the provisions of section 63-A, therefore, he had to show that he continued in possession of the house in part performance of the contract and had done some act in furtherance of the contract. It is significant to mention that Bhaiya Ram, when appearing in the witness box as R W. 6, never stated that he ceased to be a tenant in the house after the execution of the agreement of sale on 11th June, 1935 or that he continued in possesion of the house in part performance of the agreement. No evidence had been produced by him to show that after the agreement he did anything which could indicate that his status as a tenant had ceased. It was not even alleged by Bhaiya Ram that he had stopped paying rent to Nand Ram after the agreement of sale in the agreement itself also, it is not mentioned that from that date Bhaiya Ram would ceased to be a tenant of the premises or that he would continue in possession of the house in part performance of the contract. I would, therefore, hold that the petitioner had failed to prove that he continued in possession of the house in part performance of the agreement.

It was contended by the Learned Counsel for the petitioner that Bhaiya Ram had paid Rs. 100/- as earnest money and issued a notice to Nand Ram to execute the sale deed within the stipulated time and these acts of his were in furtherance of the agreement. As I have already said, Bhaiya Ram bad to prove two things, (1) that he continued in passions of the house in part performance of the contract, and (2) that he had done some act in furtherance of the contract. Since as already held by me above, he has not been able to establish that he continued in possession of the house in part performance of the contract, it is needless to determine as to whether he did some act in furtherance of the contract.

Regarding the second contention, the facts are that in paragraph 3 of the ejectment application, Mahavir Prasad had stated that he had issued a notice by post on 26th of July, 1965, to Bhaiya Ram for vacating the house, but the latter had refused to receive the same. In reply to this averment in the application, Bhaiya Ram stated that the allegations were incorrect and that no notice was given to him. On the record, a notice dated 26th of July 1965 issued through a lawyer had been produced. Therein Bhaiya Ram was asked to vacate the house within one week, since it was needed by Mahavir Prasad for his personal use No issue was, however, framed on this point, and from the judgments of both the Rent Controller and the Appellate Authority, it is apparent that this point was not taken by the tenant in any of the Courts below. Even in the grounds of revision filed in this Court on 20th November, 1967, this point does not find any place. During the course of the arguments, however, it was pointed out by the Learned Counsel for the petitioner that a Division Bench of this Court consisting of Shamsher Bahadur and R.S. Narula, JJ. in Sawaraj Pal v. Shri Janak Raj (1968) 70 P.L.R. 720-1968 Cur. L.J. 607, had held that no order for the eviction of a tenant u/s l3 of the Act could be passed against him without proof of service on him of a proper notice envisaged in section 106 of the Transfer of Property Act, in spite of the fact that the statutory provisions of that Act were not applicable to the Punjab State. He, therefore, contended that in the instant case, since no valid notice u/s 103 of the Transfer of Property Act, had been issued by the landlord, the tenancy bad not been determined, with the result that the Rent Controller had no jurisdiction to pass an order of ejectment against the petitioner. He also submitted that since this was a law point and went to the root of the case, it could be taken by him even at the revision stage for the first time Learned Counsel for the landlord, on the other hand, referred to another Bench decision of this Court consisting of Falshaw and J. L. Kapur, JJ in Bawa Singh and another v. Kundan Lal (l952) 51 P.L.R. 358, which had held that the East Punjab Urban Rent Restriction Act was a complete code by itself and its provisions superseded the provisions of the Transfer of Property Act, Hence liability to ejectment was governed by the provisions of the Rent Act and not by the provisions of the Transfer of Property Act and, therefore, no notice terminating the tenancy u/s 106 of the Transfer of Property Act was necessary. It is unfortunate that this authority was not brought to the notice of Shamsher Bahadur and Narula. JJ. when they decided Sawaraj Pal''s case. Counsel for both the parties conceded that there was a direct conflict between the two Bench decisions of this Court on this point and there was no Supreme Court Authority dealing with the provisions of the East Punjab Urban Rent Restriction Act, 1949, in this respect. In order to settle this controversy, therefore, it was necessary that this point should be referred to a larger Beach.

It might be mentioned that Learned Counsel for the landlord submitted that since the tenant had not taken up the point regarding the absence of the issue of a notice u/s 106 of the Transfer of Property Act to him, it should be held that he had waived the objection on that score. According to him this, objection could be waived in the same manner in which the Government could waive the objection regarding the non receipt of a notice u/s 80 of the Code of Civil Procedure. He further argued that it has been proved on the record that a notice had, in fact, been issued to the tenant on 26th July, 1965. Even if that was not a valid notice u/s 106 of the Transfer of Property Act, the tenant, at any rate, had waived the objection regarding the validity of that notice.

Counsel for the tenant, on the other hand, argued that the petitioner could not waive the objection regarding the non-issue of a notice u/s 106 of the Transfer of Property Act. There could be no waiver in such a case, because the tenancy had to be determined in the first instance by issuing a notice u/s 106 of the Transfer of Property Act, before an application for ejectment could be made by the landlord. He also contended that a tenancy could not be determined by a defective notice which was no notice in the eye of law.

Since the point regarding the conflict between the two Division Benches of this Court is being referred to a Full Bench, both the counsel prayed that the question regarding waiver should also be settled authoritatively alongwith the first point.

I would, therefore, refer the following three points of law to a Full Bench for decision:

Whether an ejectment application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, can be filed without the prior issue of a notice u/s 106 of the Transfer of Property Act;

Whether the objection regarding non-issue of a notice u/s 106 of the Transfer of Property Act, can be waived by the tenant;

Whether objection as to the validity of the notice can be waived by a tenant in a case in which a defective notice has been issued. Let the papers be placed before my Lord the Chief Justice for necessary orders in this respect.