Brij Bhushan Sharma vs Kamla Prasad

Shashi Kant Gupta, J.—The present writ petition is directed against the order dated 5.3.2011 passed by Additional District Judge, Court No. 1, Varanasi in Rent Revision 1 of 2005 Kamla Prasad and Ors. v. Brij Bhushan Sharma and Ors. whereby the order dated 8.12.2004 passed by the Judge, Small Causes, Court Varanasi in SCC Suit No. 146 of 1994 Kamla Prasad and Ors. v. Brij Bhushan Sharma and Ors. was set aside.

The brief facts of the case are as follows:

The Petitioner is a tenant of the disputed premises. The property in dispute is dedicated to Lord Hanuman Ji. A suit being SCC Suit No. 146 of 194 Kamla Prasad v. Brij Mohan was filed for arrears of rent and ejectment after termination of tenancy by the Plaintiff, Kamla Prasad. The notice dated 27.6.1994 terminating the tenancy was served upon the Petitioner but it was not replied to by the tenant. During the pendency of the suit, an amendment application was filed by the Plaintiff Kamla Prasad, inter alia, to the effect that he was holding the office of Shebait and was administering the temple property and is entrusted with the custody of Idol Lord Hanuman Ji. The said amendment application was allowed by the Court below. The written statement was filed by the Petitioner, inter alia, stating that the property in dispute belonged to a deity, (Lord Hanuman Ji) and Kamla Prasad was neither authorized to issue any notice terminating the tenancy nor to institute the suit for eviction. During the pendency of the proceeding, the trial Court framed an issue regarding maintainability of the suit filed on behalf of the Plaintiff. The trial Court by its order dated 8.12.2004 decided the issue in favour of the Petitioner and dismissed the suit holding that suit itself was not maintainable and as the property belonged to the deity, the suit should have been filed by the deity itself. The Plaintiff Kamla Prasad aggrieved and dissatisfied with the order dated 8.12.2004 passed by the trial Court in Suit No. 146 of 1994, filed a rent Revision No. 1 which was numbered as Rent Revision No. 2005, was transferred to the Additional District Judge, Court No. 1, Varanasi, who by its order dated 5.12.2011 allowed this revision. Hence, the present writ petition.

Learned Counsel for the Petitioner submitted that Shebait is merely a rent collector who was looking after the affairs on behalf of the deity and therefore, the notice issued by the Shebait in his own name terminating the tenancy is absolutely illegal and, therefore the suit itself was not maintainable. It is further submitted that Shebait can institute a suit on behalf of the deity and not in his personal capacity, as such, the suit itself was not maintainable.

I 5. It was further submitted that the Court below had failed to consider under the UP Act No. XIII of 1972 (in short "Act") ''landlord'' means the actual owner and not a Shebait who is merely authorized to collect the rent on behalf of the deity.

Heard the learned Counsel for the Petitioner and perused the material available on record.

A perusal of the record reveals that the premises in dispute was let out to the Petitioner by the Plaintiff Kamla Prasad and the rent was being paid by the Petitioner to the Plaintiff Kamla Prasad regularly, as such, the Petitioner had attorned the Plaintiff Kamla Prasad as his landlord, and there was landlord-tenant relationship between them. It is also not disputed that the property in dispute was dedicated by the father of the Plaintiff Kamla Prasad to Lord Hanuman Ji and Kamta Prasad was managing the entire affairs of the temple as Shebait, and was administering the property endowed to Lord Hanuman Ji.

The expression ''Landlord'' has been defined in Section 3(j) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short "the Act") which reads as under:

(J) "Landlord", in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g) the agent or attorney or such person;

This Court in the case of Sheetal Prasad Kesharwani Vs. XVIth Addl. District and Sessions Judge, Kanpur Nagar and others, has held as follows:

It is well-settled that ''landlord'' need not be owner and that any person to whom tenant is under an obligation to pay rent (irrespective of the fact whether he is owner or not) is the landlord.

This Court in the case of Gopal and Anr. v. II Addl. District Judge Mirzapur and Ors. 1980 ARC 178 has held as follows:

Another thing worthy of being noticed is that the Petitioner had been admittedly paying the rent to Respondent 3 treating him as his landlord Section 3(j) of the U.P. Act XIII of 1972 defines the word ''landlord'', which is relation to building, means a person to whom its rent is or if the building were let would be, payable, and includes, except in Clause (g), the agent or attorney, or such person. Hence, the Petitioner having been paying rent to Respondents, was estopped from denying the title of the said Respondent and in asserting that he was not competent to file the application u/s 21(1)(a) of U.P. Act XIII of 1972. Being a landlord, he was entitled to move such an application.

In the present case also it is not disputed that the property in dispute was let out by the Plaintiff Kamta Prasad to the Petitioner and the rent was being paid by the Petitioner to the Plaintiff Kamta Prasad, as such, there was privity of contract between the Petitioner and Kamta Prasad as he had attorned him as his landlord.

The landlord has been defined under the Act, inter alia, a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g) the agent or attorney or such person; hence, the Petitioner having been paying rent to the Plaintiff cannot subsequently deny the title of the said person and assert that he was not competent to issue notice and file a suit u/s 20 of the Act.

For the purpose of filing an application u/s 21 of the Act on the ground of bona fide need by the landlord for an accommodation by himself or any member of his family "it is necessary that the person apart from being the landlord of the building should also be the owner of the building. The person may be landlord though not an owner of the premises. The factor determinative of land lordship is the factum of his receiving or his entitlement to receive rent of any accommodation. Such, receiving or right to receive the rent may be on the own account of the landlord or on the account on of or for the benefit of any other person."

Section 21 of the Act contemplates a claim for eviction being maintained by an owner and owner-landlord and not a landlord merely. The concept of ownership in landlord-tenant litigation governed by rent control law has to be distinguished from the one in a title suit. It is noteworthy that in the present case, the Plaintiff has not filed any application u/s 21 of the Act for release of the accommodation for himself or any member of his family. In fact, a suit u/s 20(2)(a) of the Act was filed. Section 20(2)(a) of the Act entitles the landlord to file a suit for eviction against the Petitioner on the ground, inter alia, arrears of rent and when the tenant has not paid any arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of receipt of service by him on the notice of payment. Thus, u/s 2(2)(a) of the Act, the eviction is not sought for accommodation for himself or any member of his family. Being Shebait of the temple, it is his solemn duty to protect the interest of the deity to whom the property has been vested and in case, the rent is not being paid by the erring tenant then, in order to safeguard the interest of the deity, Shebait who is managing the entire affairs of the temple including the collection of rent is well within his right to issue a notice to file a suit u/s 20(2)(a) of the Act for eviction of the tenant after issuance of a notice u/s 106 T.P. Act terminating the tenancy.

The plain reading of Section 20 of the Act would clearly show that it is not necessary that the suit should be filed only by landlord-owner of the property. The said suit can be filed by the landlord even if he is not the owner of the property in dispute.

The Apex Court in the case of Sri Ram Pasricha Vs. Jagannath and Others, has held in paragraph 14 as follows:

There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other Plaintiffs. Such a plea should have been raised, for what it is worth, at the earliest opportunity. It was not done. Secondly, 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 tenant in such a suit it estopped from questioning the title of the landlord u/s 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.

Thus, in the aforementioned case, the Apex Court is of the view that 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.

The Apex Court in the Case of Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, white dealing with Section 12 of the MP. Accommodation Control Act, 1961 hat held as follows;

While seeking an ejectment on the ground of bona fide requirement under Clause (f) abovesaid the landlord is required to allege and prove not only that he is a ''landlord'' but also that he is the ''owner'' of the premises. The definition of ''landlord'' and ''tenant'' as given in Clauses (b) and (i) of Section 2 of the Act make it clear that under the Act the concept of landlordship is different from that of ownership. A person may be a ''landlord'' though not an ''owner'' of the premises. The factor determinative of landlordship is the factum of his receiving or his entitlement to receive the rent of any accommodation. Such receiving or right to receive the rent may be on the own account of the landlord or on account of or for the benefit of any other person. A trustee, a guardian and a receiver are also included in the definition of landlord. Such landlord would be entitled to seek an eviction of the tenant on one or more of such grounds falling within the ambit of Section 12(1) of the Act which do not require the landlord to be an owner also so as to be entitled to successfully maintain a claim for eviction. Clause (f) contemplates a claim for eviction being maintained by an owner-landlord and not a landlord merely. Though of course, we may hasten to add, that the concept of ownership in a landlord-tenant litigation governed by Rent Control Law has to be distinguished from, the one in a title suit. Ownership is a relative term the import whereof depends on the context in which it is used. In Rent Control Legislation, the landlord can be said to be owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlord tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. In M.M. Quasim Vs. Manohar Lal Sharma and others, it was held that an ''owner-landlord'' who can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own. In Dilbagrai Punjabi Vs. Sharad Chandra, this Court held that it was essential to sustain a claim of eviction u/s 12(1)(f) of the Act to establish that the Plaintiff was the owner of the premises. However, the Court upheld the ownership of the landlord having been proved on the basis of an admission of the ownership of the Plaintiff made by the Defendant in reply to notice given before the institution of the suit and the recital of the name of the Plaintiff as the owner of the property contained in the receipts issued by the landlord to the tenant over a period of time. Thus, the burden of proving ownership in a suit between landlord and tenant where the landlord-tenant relationship is either admitted or proved is not so heavy as in a title suit and lesser quantum of proof may suffice than what would be needed in a suit based on title against a person setting up a contending title while disputing the title of the Plaintiff. Nevertheless pleading and proving ownership, in the sense as it carries in Rent Control Law, is one of the ingredients of the ground u/s 12(1)(f) of the Act.

Thus, the Apex Court has contemplated two situations while interpreting Section 12(f) of the aforementioned Act. Firstly, when the property is being sought to be released from the tenant for personal use and occupation. Secondly, when the property is not being sought by the landlord for own personal occupation. In the first situation, it is necessary that the landlord should also be the owner since release is being sought for his personal need. In the second situation, the proceedings for eviction can be sought by the landlord even if he is not the owner of the property. In the present case, admittedly, the Plaintiff Kamla Prasad was holding the office of shebait administering the temple property including the fixation and collection of rent etc. and had inducted the Petitioner as a tenant and was receiving rent from him therefore there was a landlord-tenant relationship between him and the Petitioner as such he was fully competent to issue a notice u/s 106 of the T.P. Act and thereupon file a suit u/s 20 of the Act for eviction. Being a Shebait of the temple, it is his pious duty to administer the property and take appropriate action in the interest and benefit of the deity. Merely by not specifically mentioning the fact in the notice that the property is dedicated to the deity and not impleading the deity as one of the Plaintiff in the suit filed for arrears of rent and ejectment, cannot be said to be fatal so as to render the suit as non-maintainable.

The Petitioner has relied upon following authorities;

Ram Das (Deceased) through his legal representatives v. Vth Addl. District Judge, Azamgarh and Ors. 1985 (2) ARC 188.

Smt. Sughra Begum v. Sri Ram and Ors. 1983 (2) ARC 143.

Prem Chandra Pachit v. IInd Addl. Distt. Judge, Saharanpur and Ors. 1978 ARC 394.

Smt. Ved Rani Diwan and Anr. v. VIIIth Additional District Judge Ghaziabad and Ors. 1996 (2) ARC 14.

Moolchand v. 4th additional District Judge, Azamgarh 86 (2) ARC 102

In the case of Ram Das (Deceased) through his legal representatives (supra), this Court while dismissing the suit held that notice sent u/s 106 of the Transfer of Property Act was invalid. The said decision does not apply to the facts of the present case in view of the discussion made hereinabove to the effect that the notice issued to the Petitioner was legal and valid.

There is one more aspect of the matter which cannot be ignored that before filing SSC Suit No. SCC Suit No. 146 of 1994 on the ground of arrears of rent and ejectment, a notice u/s 106 of the Transfer of Property Act (in short "the T.P. Act") was issued by the Shebait Kamta Prasad on 27.6.1994 to the Petitioner terminating the tenancy as provided u/s 106 of the T.P. Act. It has been admitted by the Petitioner that the said notice was received by him on 27.6.1994. Despite the receipt of the notice, the tenant failed to reply the same, as such, no objection was raised by him with regard to validity of the notice. Such objection should have been raised at the earliest.

The Apex Court in the case of Parwati Bai Vs. Radhika, has held as follows;

The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the Defendant is admitted in the written statement. The Defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice u/s 106 T.P. Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the Plaintiff as exhibit P-4.

The decisions of this Court in the cases of Smt. Sughra Begum v. Sri Ram and Ors. (supra); Prem Chandra Pachit v. IInd Addl. Distt. Judge Saharanpur and Ors. (supra) and Smt. Ved Rani Diwan and Anr. v. VIIIth Additional District Judge, Ghaziabad and Ors. (supra), are also not relevant to the case in hand since in the aforementioned cases it was held that only a person who is entitled to occupy the premises in his own right can apply for release u/s 21 of the Act. There is no quarrel on this proposition at all. In the present case, the application has not been filed u/s 21 of the Act for release of the disputed premises on the bona fide need or for demolition but has been filed u/s 20 of the Act for eviction on the ground of default in payment of rent, as such, it is not necessary that the landlord should also be the actual owner of the premises and this issue has already been discussed by me at length in the earlier part of this judgment.

The Petitioner, in support of his submission, has relied upon the case of Moolchand v. 4th additional District Judge Azamgarh (supra) but I am afraid to say that case has no bearing on the facts in hand and in my opinion, it is clearly distinguishable on facts. In the said case, the controversy was whether the suit filed by one of the co-shebait is maintainable or not and this Court, inter alia, had held as follows;

It thus appears that in cases where the shebaitship of an idol vests in a number of persons, normally all of them should combine together for starting legal proceedings or protecting the propriety interest of an idol but then this rule is not absolute and in exceptional cases where the body of shebait is either unwilling or is for some reason incapable of protecting the interest of the idol, any person interested in the deity can bring a suit in the name of the deity for protecting its interest.

Thus, the aforementioned case is clearly distinguishable on facts.

In view of the above, the order passed by the trial Court dated 8.12.2004 is based on complete misreading of the case and misconception of the legal position relevant to the matter and cannot at all be supported. The revisional Court by order dated 5.3.2011 has very rightly set aside the order passed by the trial Court and upheld the contention of the Plaintiff-landlord.

The reasonings assigned by the revisional Court is cogent convincing and satisfactory and no fault can be found with the approach adopted by the revisional Court, as such, I see no justification to interfere in the matter.

In the result, the writ petition is dismissed.