Jaswant Rai vs Nazir Singh

J.V. Gupta, J.—The landlord-petitioner has filed this revision petition against the order of the Appellate Authority, Amritsar, dated 12th March, 1980, whereby the order of the Rent Controller, Amritsar, dated 16th September, 1978, directing ejectment of his tenant was set aside.

The petitioner filed an application for eviction of the respondent from the premises described as property No. B-XVIII-18S-13, situated in the Hide Market, Amritsar, which was an evacuee property and had been purchased by him in an auction on I9th March, 1959, and obtained the sale certificate dated ?0th November, 1965, from the Rehabilitation Authorities. At the time of auction, the respondent was tenant in a portion of the property at the monthly rent of Rs. 15/- which he had been paying to the District Rent and Managing Officer. Earlier an application Exhibit R.K. was filed by the landlord in the Court of the Rent Controller for the eviction of his tenant on the ground of non-payment of rent from 19th March, 1959 to 19th May, 1968, amounting to Rs. 1680/-. The tenant tendered the rent in that application and consequently the application was dismissed vide order dated 12th December, 1972 Exhibit R.W. 4/3. The eviction of the respondent has been sought on the ground of non-payment of Rs. 1290/- which had fallen due for the period ending 19th September, 1974, and on the ground of bona fide requirement and conservation and use of demised premises for the purpose other than for which it was let out.

The eviction application was contested by the respondent on the ground that the house No. XVIII-186-13 was sold to the petitioner by the Rehabilitation Department and the respondent was never an allottee of a portion of the said property According to the respondent, the property allotted to him is XVIII-18S-15 and not XVIII-18-S-13 which were two different houses and he had been paying rent for house No. XVIII-18-S-15. He denied that he ever became tenant under

the petitioner by operation of law. However, on the pleadings of the parties the Rent Controller framed the following issues-

Whether the applicant purchased the property No. BXIII-18S-13 in public auction on 19th March, 1959, as alleged in para No. 1 of the application?

Whether the respondent was allottee in a portion of the said property?

If issues No. 1 and 2 are proved, whether the respondent is not liable to ejectment on the ground of non-payment of arrears of rent?

Whether the applicant bona fide requires the premises in possession of the respondent for his own use and occupation and residence?

Whether the respondent has converted the use of said premises?

Whether the respondent has damaged the premises considerably and thus diminished their value and utility?

What is the effect of dismissal of previous application mentioned in additional plea No. 1 in the written statement?

Relief.

Issues Nos. 1, 2 and 3 were found in favour of the landlord whereas issues Nos. 4, 5 and 6 were given up as per statement of the landlord made before the Rent Controller on 7th September, 1978, Issue No. 7 was found against the tenant and consequently an order of eviction was passed by the learned Rent Controller. On appeal, the appellate authority came to the conclusion that there was no relationship of landlord and tenant between the parties as the respondent was an allottee of the premises in dispute and, therefore, he did not become the tenant of the landlord u/s 29 of the Displaced Persons Compensation and Rehabilitation Act, as the respondent was in arrears in respect of the property at the time of transfer in favour of the petitioner and he had not paid up such arrears within 60 days of such application. Feeling aggrieved against this, the landlord has come in revision in this court.

The learned counsel for the petitioner vehemently contended that the respondent has himself pleaded in written statement in para 2 thereof that the respondent was never allottee of a portion of the said property i.e. No XVIII-18-S-13. However, it has been further stated therein that he had been paying rent for house No. XVIII-18S-15. Further in clause 5(i) of the written statement it has been stated that the respondent was never a tenant under the petitioner and hence was not obliged to pay any rent to him. The rent paid earlier was paid under wrong advice. The respondent was entitled to get back that rent from the petitioner. On the basis of these pleadings the learned counsel contended that respondent cannot be said to be an allottee at the time of transfer in favour of the petitioner and he had become a tenant under him u/s 29 of the Displaced Persons (Compensation and Rehabilitation) Act. In sunport of his contention he has cited Bhagwan Singh and others v. Bachhittar Singh 1981 (1) R.C.J. 390, and Shri Bishan Dass alias Bishna v. Jai Kishan 1972 R.C.R. 520.

On the other hand, learned counsel for the respondent vehemently contended that he never admitted himself to be a tenant under the petitioner. He was an allottee throughout and the rent paid by him in the earlier ejectment application does not bind him and for that reason he cannot be held to be a tenant under the petitioner. In support of his contention he has referred to Gurcharan Singh v. Devki Nandan 1973 P.L.R. 651.

I have heard the learned counsel for the parties at great length and have also gone through the pleadings and the evidence on record. The question that requires determination in the present case is as to whether there is a relationship of landlord and tenant between the parties. It is not disputed that the property was purchased by the petitioner from the Custodian. It is well settled that if a person purchases property from another, the tenant under the vendor becomes tenant under the vendee. The argument on behalf of the respondent that he was not a tenant of the Custodian but an allottee under him, has not been substantiated on the record. Rather in the pleadings of the parties, the respondent admitted that he had paid the rent to the petitioner in the earlier ejectment application filed against him and further pleaded that he was not an allottee of the premises in dispute. There is no order of allotment on the record to prove the claim of the respondent in this respect. The parties have been litigating earlier also and went upto High Court. No where it has been decided in favour of the respondent. The payment of rent by the respondent in the earlier application clearly debars him to plead that he is not a tenant under the petitioner. In case he did not accept himself to be the tenant, the question of payment of rent did not arise. In any case, there is nothing on the record to prove that he paid the rent under protest or denied his relationship of landlord and tenant the parties in that application. If once it is held that from the pleadings and the conduct of the respondent, he is the tenant under the petitioner, the case cited in Bhagwan Singh''s case (supra) holds the field and the respondent is liable to ejectment.

For the reasons recorded above, this petition succeeds and the order of the Appellate Authority is set aside and that of the Rent Controller directing ejectment of the respondent is restored with costs. However, the respondent is allowed two months time to vacate the premises provided all the arrears, if any, and advance rent for 2 months is diposited with the Rent Controller within a fortnight from today.