Gurdial Singh and others vs Pran Nath Sud and others

Prem Chand Pandit, J.—This is a tenant''s revision petition against the decision of the Appellate Authority confirming on appeal the order of the Rent Controller evicting him from the premises in dispute.

The premises, admittedly, was a vacant site, situate in Moga, District Faridkot It was given on rent by its owner Gurdial Singh on 31st October, 1950, for 2 years from 12th, April. 1951, to 11th April, 1953, vide rent note; Exhibit P 2, at an annual rent of Rs. 540/- for the purpose of carrying on business. In January 1970, the landlord filed an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter called the Act, for the eviction of his tenant Gurdial Singh. He also impleaded Banarsi Dass and five others alleging them to be the subtenants. It was stated in the application that Gurdial Singh Sad not paid the arrears of rent with effect from 1st April, 1969 The ejectment was claimed on three grounds--(i) nonpayment of arrears of rent; (ii) the tenant had sublet the premises to Banarsi Dass and others without the written consent of the landlord, and (iii) the premises was required for the personal use of the landlord, as he intended to set up his own workshop there.

This application was contested by the tenant as well as the alleged sub tenants. The case of the tenant was that a vacant site had been taken on rent with the stipulation that he would be entitled to construct a building thereon. The relationship of landlord and tenant existed only with regard to the vacant site. The tenant had constructed a building on the vacant site at a cost of Rs. 25,000/-. The rent Controller, therefore, had no jurisdiction to try the application and the same was liable to be dismissed on that ground. The grounds for eviction were also controverted and it was said that he had not sublet any portion of the premises. It was also averred that the landlord did not require the premises for his personal use. As regards the non payment of arrears of rent, the same was tendered on the first date of hearing and, therefore, this ground was no longer available to the landlord. It was also said that a valid notice u/s 106 of the Transfer of property Act had not been issued to him before the filing of the eviction application.

The case of the sub-tenants was that the landlord had leased out the site in question to one Dalip Singh in 1946/47 with the condition that the lessee would be entitled to put a construction thereon and give the same to other persons as lessees or licensees. The lessee had constructed a building and given its various portions to different persons on lease. Gurdial Singh, the present tenant was the general attorney of the said lessee and later on the original lessee transferred his rights in the building in favour of Gurdial Singh and the landlord accepted him as a lessee on the same terms and conditions, which were originally settled between him and the previous lessee, namely Dailp Singh. The application u/s 13 of the Act was not maintainable in respect of the premises in question. Like the tenant, the alleged sub-tenants also controverted the various grounds of eviction set up by the landlord.

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

Whether the Rent Controller, Moga, has no jurisdiction to try this application as framed ?

Whether a valid notice has been served on respondent No 1 ?

Whether respondent is liable to ejectment on the grounds mentioned in the application ?

The Rent Controller came to the conclusion that he had jurisdiction to try the application, and that a valid notice had been served an the tenant, who was liable to be ejected, because it had been proved that he had sublet the various portions of the demised premises to the persons impleaded as the opposite party in the application. On these findings, he ordered the eviction of the tenant as well as the subtenants.

When the matter went in appeal before the Appellate Authority, he affirmed the findings of the Rent Controller and dismissed the same. Against this decision, the present revision has been filed by the tenant and four out of the alleged sub tenants.

Learned counsel for the petitioners, in the first place submitted that the finding of the Rent Controller and the Appellate Authority on issue No. 1 was incorrect and it should have been held that in the circumstances of this case, the Rent Controller has no jurisdiction to try this application. The argument raised was that, admittedly, a vacant site had been rented out and subsequently the tenant had constructed a building over the same, with the result that it ceased to be a vacant site and therefore, the Rent Controller had no jurisdiction to evict the tenant from the building.

I suppose what the learned counsel meant was that the tenant could be evicted from the vacant site and not from the building, in as much as he was a tenant qua the vacant site and not regarding the building, which had been constructed by the tenant himself This precise question had been the subject of some authorities in this Court. My attention was invited to the decision of Dua J. in Pyara Singh v. Mahant Gurmukh Das and another (1964) 66 P.L.R. 193, where it was held:

The jurisdiction of the Rent Controller is circumscribed by the statute and as a special tribunal he is enjoined by law to keep himself within the bounds of his jurisdiction. Where the tenancy was with regard to the vacant site but the tenant had, under an agreement with the landlord, constructed a building thereon, the Rent Controller could pass an eviction order in regard only to that site. The fact that the tenant had not specifically raised the plea would not clothe the Kent Controller with jurisdiction to pass any order of eviction in regard to the property which is not let out by the landlord to the tenant, whether actually or constructively. The Rent Controller could not pass an order of eviction from such a property.

This decision was subsequently noticed by Gurdev Singh J. in Smt. Mohinder Kaur and another v. Jatinder Singh and another (1958) 70 P.L.R. 667, where the learned Judge, while referring to Payara Singh''s case, observed as under:

In 1964 P.L.R. 193, Dua J. did not express any opinion on the effect of the tenant setting up a structure on the rented land. On the other hand, his Lordship expressly left this matter to be decided by the Rent Controller, and for that purpose remanded the case

The learned Judge then, after referring to a number of authorities, including some unreported decisions of this Court in Partap Singh and another v. Santokh Singh Civil Revision No. 165 of 1965, decided on 7th April, 1961, by Grover J. and in Ram Parshad and other v. Municipal Committee, Ladwa Civil Revision No. 430 of 1961, decided on 3rd November, 1961, by Dulat J. held:

that to ascertain the nature of the premises and the purpose for which it was let, one has primarily to look to the lease dead or the rent note itself. If subsequently there is any alteration made, with the per-mission of the landlord, in the premises by the tenant or it is used for the purpose different from the one for which it had been let out, that would not deprive the landlord of his right to seek eviction it does not mean that the landlord has lost the right to recover possession, even where he has established a ground to evict the tenant u/s 13 (2) of the East Punjab Urban Rent Restriction Act, simply because be has permitted the tenant to set up structures and install machinery which was necessary for carrying on the business for which the premises were let out.

That the order directing the tenant to remove the structures passed by the Rent Controller was for the benefit of the tenant and if he did not like to avail of it, it would not effect the right of the landlord to take possession of the rented land.

So far as I am concerned, however, there is a bench decision of this Court, by which sitting singly, I am bound, and that is Shrimati Dhan Devi and another v. Bakshi Ram and others (1968) 70 P.L.R. 913, where it was held that the claim of the landlord related to ejectment from rented land as defined in section 2(f) of the Act in spite of the fact that the tenant had constructed some rooms on the part of the rented land subsequent to the commencement of the tenancy, even if the construction had been made with the implied consent of the landlord.

In the present case, it is common ground, that in the rent-deed, it had been agreed that the tenant could construct building at his own cost of the site in question, but at the end of the tenancy, he would be entitled to remove the Malba thereof and restore the site to the landlord in its original condition. It was further stipulated that the tenant would not be entitled to sublet the premises without the written consent of the landlord It would, thus, be seen that the tenant fully knew that he was constructing the building at his own cost and a time might come when the tenancy would be determined and then he would have to remove the Malba thereof. It cannot, therefore, be now urged by him that great injustice was being done to him, when he was asked by the Rent Controller and the Appellate Authority to vacate the site after removing the Malba therefrom. Be that as it may, following the Bench decision in Dhan Devi''s case, I hold that the Rent Controller had jurisdiction, to try this ejectment application.

It was then contended by the learned counsel that the finding of the Appellate Authority and the Rent Controller on the question of sub letting also was incorrect.

Here again, I find that no valid ground has been made out to disturb the concurrent finding of fact given by the Rent Controller and the Appellate Authority on this point. A number of witnesses had been produced by the tenant himself, who had deposed in favour of subletting For instance, out of the sub tenants, Banarsi Das son of Baldev, Gurcharan Singh and Banarsi Das, had appeared as R. Ws. 4, 2 and 3 respectively, and all of them had categorically stated that they were in possession of the various portions of the building, which they had taken on rent from Gurdial Singh There was also the evidence of Shri Kamesh Chand Sood, Advocate, who was appointed a Local Commissioner in the case for the inspection of the spot. He submitted his report. Exhibit A. 1. From that report, it is clear that when he inspected the spot, a number of alleged sub-tenants, viz. Gurcharan Das, Phaga and Banarsi Das, were occupying the premises in dispute. From all this evidence, the rent controller and the Appellate Authority had concluded that Gurdial Singh had sublet the premises to the various sub-tenants. It is clear from the record that the tenant hid not obtained the written consent of the landlord for this subletting. That being so, it is not possible to disturb this finding as well.

No other question was argued before me.

The result is that this petition fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout. The tenant and the sub tenats are allowed three months time to vacate the premises. It is understood that the tenant is allowed to remove the Malta of the construction made by him on the site in dispute within the said period.