Gobind Ram vs Krishan Lal

K. Kannan, J.—The tenant is the revision petitioner. He has been ordered to be evicted by the Rent Controller and the appellate authority. The grounds of eviction were non-payment of rent and change of user. The property in dispute is a small Khoka erected on municipal site which later became vested with the Improvement Trust. The landlord''s contention was that the rent payable was Rs. 325/- per month and he had stopped paying the same from April. 1990. The petition was filed in the year 1991. The tenant contended that there existed no relationship of the landlord and tenant between the parties and that the Rent Controller had no jurisdiction to entertain the petition. His contention was that the shop in dispute which was a small Khoka, had been removed by the petitioner himself and thereafter the respondent occupied the site and raised the construction thereon for his own shop. He obtained electric, telephone and water connections in his own name and the Improvement Trust, Pathankot had given the site underneath the shop in dispute to the respondent on teh-bazari basis on payment of fee of Rs. 160/- per month. The contention, therefore, was that whatever was rent payable upto the date of filing of the petition, namely, Rs. 4,875/- had been already paid and the petition for eviction was not maintainable. Both the Courts below considered the issue of whether the tenant could plead that the relationship between the landlord and the tenant did not exist, particularly in view of the fact that the tenant had earlier filed a petition for fixation of fair rent admitting the respondent herein to be the landlord of the premises. It also held that the tenant was not entitled to deny the rural relationship and was estopped from contending that he had himself put up the shop and that the Improvement Trust had recognized his possession.

The learned senior counsel appearing on behalf of the tenant refers to the notice issued by the Town Improvement Trust to the landlord Krishan Lal u/s 195 of the Punjab Municipal Act of 1911 directing the removal and contending that his occupation was unauthorized under A4. A5 was a subsequent notice issued dated 04.08.1989 by the town Improvement Trust u/s 81 of the Punjab Town Improvement Act of 1922 read with Section 195 of the Punjab Municipal Act of 1911. The purport of the respective notices are as follows:-

Ex. A4

Subject: Notice u/s 195 of the Punjab Municipal Act read with Section 49 of the Punjab Town Improvement Trust.

You are hereby informed through this letter that the unauthorized building will be demolished in one day and the possession thereof be handed over to the Trust. If the needful is not done, the construction raised by you will be demolished by the Trust.

Ex. A5

Subject: Notice u/s 81 of the Punjab Town Improvement Act, 1922.

With reference to the earlier notice issued on 04.08.1989 u/s 195 of the Punjab Municipal Act read with Section 49 of the Punjab Town Improvement Trust, 1922, you have failed to remove the unauthorized construction. Now our officials u/s 81 of the Punjab Town Improvement Act, 1922 will remove the unauthorized construction raised by you within 6 hours on receipt of this letter.

The notice issued on 04.08.1989 describes the petitioner to be in unauthorized occupation and demanding the removal of encroachment within 6 hours failing which, the structure would be demolished. The learned senior counsel appearing on behalf of the revision petitioner would point out that imminent threat of ejectment by the Improvement Trust, with no subsisting entitlement granted to the landlord to continue in possession of property, the petitioner recognized the Town Improvement Trust as the owner of the site and gave a letter to the Improvement Trust on 22.07.1991 under the original of Ex. R1, informing the Executive Officer of the Trust that he was in occupation of the place where he was carrying on the business of selling fish in a wooden Khoka at A.P.K. Road, Pathankot and that he could be allotted the said place for carrying on the business at the usual rate of rent/teh-bazari for the use and occupation of the same. The petitioner would rely on Ex. R2 as a proceeding of the Improvement Trust whereby the Trust had passed resolution to offer the site 8x10 = 100 square feet of property for user @ Rs. 160/- per month as teh-bazari. Ex. R3 is an endorsement on the request that the property could be allotted to the petitioner and R4 was an approval granted by the Chairman of the Trust.

Both the Courts below have failed to understand the actual import of what Ex. R1 to R5 in regard to the tenant''s claim of assertion of right against the original landlord by the threat of eviction and the attornment made by the tenant to the paramount title owner, namely the Improvement Trust. The petitioner had actually brought the evidence of Vivek Sharma, who was the Rent Teh-Bazari Clerk, Pathankot Improvement Trust. He had referred to the fact of the proceedings for ejectment against the landlord named in the petition and that they found the petitioner-tenant as being in actual possession. He gave evidence to the effect that the tenant was actually paying the rent @ Rs. 2 per square feet from 21.07.1991 when he applied to the Trust for being accorded the licence to use and occupy the site. He testified to the endorsement of the Chairman of the Trust recommending the allotment of the site to the tenant. He was cross-examined by the landlord to the effect that the landlord had been allotted the site but this was denied by RW1. It was also denied that teh-bazari fee was used to be paid by Sain Dass through the landlord Krishan Lal. It was also elicited in the cross-examination of RW1 that he did not know who was in possession of the property before 1981.

I am prepared to accept the contentions on behalf of the landlord that the property had been originally granted to the landlord to occupy the property in a dimension of 8'' x 10'' for erecting a Khoka for his business. The fact remains that the property was handed over by the landlord to the tenant and at the time when notice was issued under R4 and R5, there had been no subsisting contract between the improvement Trust and the landlord. The learned counsel for the landlord-respondent contends that Section 195 of the Punjab Act itself allows for a 6 months notice and the notice under R4 was untenable. In my view, the submission is erroneous. Section 195 reads as follows:-

Penalty for disobedience: - Should a building be begun, erected or re-erected.

(a) without sanction as required by section 189(1); or

(b) without notice as required by section 189(2); or (c) when sanction has been refused; the committee may by notice delivered to the owner within six months form the completion of the building, require the building to be altered or demolished as it may deem necessary within the period specified in such notice; and should it be begun or erected.

(d) in contravention of the terms of any sanction granted; or

(e) when the sanction has lapsed; of (f)..........

Clauses a, b and c apply where the construction is without sanction or when original sanction to a building is refused. If a structure is erected after sanction and the period has lapsed, clause (e) operates in which case 6 months notice is not necessary. The tenant obtains only a right, if at all, inferior to the right of his own landlord and if the landlord''s right to occupy has come to an end and the Improvement Trust had not authorized the continuation, then it must be taken that there is an eviction of the tenant by a legal process that will put an end to the landlord-tenant relationship. In such a situation, a tenant could lawfully attorn to the paramount title owner and secure a direct lease from such paramount owner. In D. Satyanarayana Vs. P. Jagadish, , the Supreme Court laid down that it is not even necessary that there must be actual surrender of the lease before title paramount is pleaded. The obligation of the tenant to surrender possession will come to an end upon the proof by the tenant that the landlord''s eviction was pursued by holder of title paramount, as held by the Supreme Court in Om Prakash Gupta Vs. Ranbir B. Goyal, This is what has happened by A4 and A5 notices by the Improvement Trust to the landlord. This has been followed by the fact that on receipt of application from the tenant under Ex. R1, the Improvement Trust has passed a resolution to evict the ''landlord'' and grant the lease to the tenant and the Chairman of the Trust has approved the same. RW1 has given evidence that the rent has being collected from the tenant directly.

The above situation squarely answers a legal exception to the principle of estoppel between a landlord and a tenant through the doctrine of "just tertii". A notice of eviction to the landlord under statutory provisions would itself amount to termination of tenancy and relieve the tenant from the bar to deny his own landlord''s right to eject him. The attornment to the paramount title owner is, under the circumstances, perfectly justified and the landlord could not have lawfully prosecuted the petition. In order that it is perceived that the paramount title owner has ''evicted'' the landlord, the following conditions must be satisfied, vide, Halsbury''s Laws of India (Volume 3) Land lord & Tenant, Para 200.035

(1) the party evicting must have a good and present title to the property;

(2) tenant must have quit or directly attorned to the paramount title holder;

(3) either the landlord must be willing or be a consenting party to such direct attornment or there must be such an event, such a change in law, or passing of decree by a competent suit which would dispense with the consent of the landlord, that is, the paramount titleholder must be armed with such a legal process that the tenant may not resist possession. (see also Vashu Deo Vs. Bal Kishan,

In this case, the effect of A4 and A5 notices constitute imminent threat to dispossession of the tenant. R1 to R5 constitute the circumstances for attornment.

The order of eviction made by the Rent Controller as affirmed by the appellate authority were clearly erroneous and contrary to law. The orders are set aside and the finding that there subsisted a relationship between the landlord and a tenant as such is also set aside. The petitioner is entitled to be in possession of property subject only to only to the right of the Improvement Trust to eject him in accordance with law. The revision petition is allowed on the above terms.