Dewan Chand and Sons vs Rattan Lal

D.B. Lal, J.—This second appeal is brought from the decision of the learned District Judge, Solan, who partly affirmed on appeal the decision of the Senior Sub-Judge in a suit for ejectment filed by Rattan Lal and decreed in his favour.

The dispute relates to shop No. 39, situate in the ground floor of the building located in the Market Bazar, Kasauli. It is admitted case that Section 13(1) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred to as the Act No. 3 of 1949) was not applicable to Kasauli Cantonment before 5-2-1970. Is is on that date that by a notification of the Central Government the said provision was extended to Kasauli Cantonment. On 9-12-1969 accordingly under the general law of ejectment of a tenant, Rattan Lal filed a suit against the Defendant Dewan Chand & Sons in respect of the aforesaid shop for their ejectment, and the plea was that they had not paid the rent and that the premises were needed by the landlord for his personal use. A notice to quit was also duly served upon the Defendant. The suit was formerly decided by the Subordinate Judge, Kandaghat, who ejected the Defendant. An appeal was brought to the Senior Sub-Judge, Simla, which was accepted and two more issues were framed as to the nature of tenancy, and the suit being premature, the case was remanded for de movo decision. The Senior Sub-Judge, Solan, thereafter again decided the suit against the Defendant and decreed the suit for ejectment with a condition that the decree will not be executable because Act No. 3 of 1949 had come into operation by then. Against that decision, both the parties filed appeal before the District Judge.

The appeal of the landlord Rattan Lal was to the effect that the condition attached to the decree and that the same is in executable, was not sustainable under law and must be quashed. The tenants Dewan Chand & Sons on the other hand filed their appeal, alleging that the very decree of ejectment could not be passed and must be set aside.

As to the question whether a decree for eviction can be passed despite Section 13(1) of the Act No. 3 of 1949, there appears to be no doubt. In B. Chint Ram v. Firm Kirpa Ram Dhani Ram AIR 1946 Lah 20 it was held that the Plaintiff''s right to have the decree cannot be denied simply because the Legislature had in its wisdom ordered that certain decrees should not be executed for a certain period of time. In Sham Sunder v. Ram Das AIR 1951 P&H 52, which is a Full Bench decision, the expression "make any order in execution of a decree evicting any tenant" was interpreted to refer to the stage when execution of a decree for ejectment is sought by a decree-holder. It was further held that this Section did not oust the jurisdiction of civil court to grant a decree for eviction but merely controlled the execution of such a decree by prescribing procedure for the eviction of tenants. That case dealt with the Punjab Urban Rent Restriction Act, 1947. The expression used in Section 13(1) of the Act No. 3 of 1949 is very much similar. The words are "a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act". Therefore, the stage of decree remains unaffected and the process of eviction in execution of that decree is only affected and the eviction of a tenant in possession can only be made in accordance with the provisions of that section. In Sadhu Singh v. District Board, Gurdaspur and Anr. 1962 P.L.R. 1 the same view was upheld. It was held that Section 13(1) of the Act No. 3 of 1949 did not affect the jurisdiction of the court to pass a decree for ejectment. These decisions adhered to the fundamental principle of law that the exclusion of jurisdiction of the civil court is not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied. Section 13(1) neither explicitly expressed nor clearly implied this ''exclusion of the jurisdiction of the civil court to pass a decree of |eviction.

The learned Counsel for the Respondent relied on Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, With respect to their Lordships, the decision will be beside the point. In that case the legal provision itself prohibited the institution of a suit for recovery of possession and in that circumstance the learned Judges held that no suit for eviction could be filed. As I have pointed out, in Section 13(1) of Act No. 3 of 1949 the suit for eviction is not barred. But only execution of decree has to take place in accordance with the provisions contained in that section. It was further argued by the learned Counsel on the basis of H.Y. Mahmood v. Kerala Corporation, Lid. AIR 1945 Mad 181 that the court should not indulge in a mere pastime and pass a decree which cannot be carried into effect without resort being had to the Controller in whose discretion was vested to decide the question regarding eviction. To me, with respects to the learned Judge who decided that case, it will not be a pastime or idle formality to pass a decree of ejectment. Rather that will be in accordance with the general law. If Rattan Lal has satisfied the legal requirement, he will get the decree for ejectment. It is a different matter that a further test will be levied at the execution stage with reference to the provisions contained in Section 13(1) and the Controller will decide those questions.

Therefore, I will come straight to the question as to whether the decree for ejectment could at all be passed. For this, the learned Counsel for the Respondent-tenant contends that in the plaint a specific plea was taken up in paragraph No. 5 that the premises were leased out by the Plaintiff to the Defendant for one year starting from 1-4-69 to 31-3-1970 at the rate of Rs. 450/- annual rent. In the written statement, however, it was denied that the tenancy was for one year, but rather the plea was that it was a tenancy from year to year under the terms and conditions of the previous registered rent-deed of 24-6-1954. The learned Counsel for the Respondent spells out a one-year tenancy from 1-4-1969 upon the very admission of the Plaintiff-landlord. The finding of the learned trial Judge is that this tenancy never came into existence as it was for reserving an yearly rent and only a registered rent-deed could create such a tenancy. That finding appears to be based on a sounder reason. The reliance was placed on Exhibits PX and DD. In Ex. PX the words are "Kiraya aienda ke liye 450 rupey salana deta rahunga", and in Ex. DI) the words are "450 rupey sal ke hisab se Dewan Chand & Sons se aienda vaste liya javega". In both the documents, it was further specified that the rent deed was to be executed on a subsequent date. These two documents clearly mentioned that Rs. 450/- was rent which was chargeable from year to year. There can be no doubt that a yearly rent of Rs. 450/- was reserved. The two documents themselves did not require registration because they simply narrated the conditions under which the tenancy was to come into existence and a rent-note was to be written. These two documents by themselves did not careate a tenancy. u/s 107 of the Transfer of property Act read with Section 17(1)(d) of the Registration Act, 1908, leases of immovable property from year to year, or for any term exceeding one year or reserving an yearly rent, were required to be executed under a registered document. This was a lease reserving a yearly rent and as such without registered document such a lease could not be created. Any amount of admission made in the plaint will not obliterate this legal position. Admittedly no rent was paid for this period from 1-4-1969 to 31-3-1970. In para No. 4 of the plaint and in corresponding para in the written statement, it was admitted the tenancy was from year to year. It is thus further clear that the lease was of immovable property from year to year and such a lease also required registration. On behalf of the tenant, reliance was placed on Shri Ram v. Mam Raj AIR 1939 Lah 234 . But in that case the lease was for a fixed period of one year and the rent for that year was specified. It was held that it was not a lease from year to year or reserving a yearly rent. Such is not the position here in view of the language used in Exhibits PX and DD. In Jewan Singh and Others Vs. Mandalal Agarwalla and Others, yearly rent is reserved within the contemplation of Section 17(1)(d), Registration Act, if the lease on a proper construction creates a tenancy from year to year. The reservation of annual rent is necessary in a lease from year to year or for an indefinite term. Again, the language used in Exs. PX and DD makes it more than clear that the tenancy was from year to year and the rent was specified, payable for the future during any year.

The stock argument of the learned Counsel was that once the admission was made in para No. 5 of the plaint, it was not open for either party or the court to decide that the lease never came into existence. An admission made by a party, unless it amounts to estoppel, can always be explained by such party. That apart, a plea of estoppel against statute is never sustained. In Sajid Mia Majumdar (supra) in a case of lease, estoppel or waiver was not inferred from pleading based on pure question of law. In Ajudhia Prasad and Another Vs. Chandan Lal and Another a Full Bench of that Court observed that no estoppel can be pleaded against a statute. Similar observation was made by the Supreme Court in Faquir Chand v. Shri Ram Rattan Bhanot, etc. 1973 RCR 221. That was again a case of a landlord and a tenant. The landlord was not estopped from ejecting the tenant and the plea of estoppel against statute was rejected.

Therefore, despite the admission made by the Plaintiff in para No. 5 of the plaint, no tenancy contract can be inferred in view of the prohibition contained in Section 17(1)(d) of the Registration Act. When there was no valid tenancy, the question regarding notice did not arise. The Defendant-tenant was a trespasser and could be ejected without a notice to quit. Similarly the suit cannot be held to be premature because the tenancy never came into existence from 1-4-1969 and the period of one year was not binding between the parties.

For the purpose of Section 13(1) of the Act No. 3 of 1949, the tenant would be statutory tenant. In Anand Nivas Private Ltd. v. Anandji Kalyanji''s Pedhi and Ors. AIR 1965 Supreme Court 414 that position was considered. A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. In Pooran Chand Vs. Motilal and Others, it was held that when a tenancy terminates by efflux of time, the question of statutory notice u/s 106 of the Transfer of Property Act does not arise. In order to plead holding over u/s 116 of the Transfer of Property Act, at first the very tenancy contract has to be established. If there was no tenancy there could be no question of holding over. The previous tenancy came to an end on 31-3-1970 and thereafter the tenant became a trespasser. As no rent was accepted, there is no question of Defendant-tenant being holding over within the meaning of Section 116 of the Transfer or Property Act.

In view of what I have stated above, a decree for ejectment was rightly passed by the learned District Judge. The condition regarding inexecutability of the decree was uncalled for and should not have been incorporated in the decree. As such both the Regular Second Appeals Nos. 34 of 1974 and 35 of 1974 are dismissed with costs.

This judgment is being given in Regular Second Appeal No. 34 or 1974, and shall form part of the judgment in Regular Second Appeal No. 35 of 1974. A copy of this judgment shall be kept on the record of that appeal.