Khiali Ram (Died) through his L.Rs. vs Santokh Singh

S.S. Sudhalkar, J.—Petitioner Khiali Ram was ordered to be evicted by the learned Rent Controller, Fazilka. In appeal before the Appellate Authority, Ferozepur, the petitioner did not succeed and he has come in revision petition before this Court.

Brief facts of this case are that the rent petition was filed by the respondent for ejectment of the petitioner from the shop in dispute. As per the averments made in the petition, the shop was a part of a big building, which was jointly owned by Kailwashwati widow, Roshan Lal and Harinder Rai etc. Vide registered sale deed dated 10.11.1986, the shop in dispute was purchased by the respondent from Smt. Kailashwati etc. co-owners. At the time of purchase by the respondent, the petitioner was occupying the shop in dispute as a tenant at a monthly rent of Rs. 75/-. That being so w.e.f. 10.11.1986, the petitioner has been occupying the shop in dispute as a tenant and thus there exists a relationship of landlord and tenant between the petitioner and the respondent. The eviction of the petitioner has been claimed on the ground of non-payment of rent from 10.11.1986 i.e. the date respondent purchased the shop.

The rent petition was contested by the present petitioner and the relationship of landlord and tenant was also categorically denied. It was pleased by the petitioner that he entered into an agreement of sale on 9.8.1986 with Harinder Rai, one of the co-owners of the shop in dispute, and in pursuance of that agreement, a registered sale deed dated 11.2.1987 was also executed in his favour for a valuable consideration of Rs. 18,000/- and thus he has claimed ownership of the shop in dispute.

It is not in dispute that the petitioner and the respondent got executed sale deeds from different co-owners of the same property. It is also not in dispute that Harinder Rai, who made sale deed in favour of the petitioner was not a party to the sale deed in favour of the respondent. The learned Rent Controller has mentioned in paragraph 9 of the order as under:-

"The petitioner has claimed ownership of the shop in dispute on the basis of the sale deed Ex.PI executed in his favour by Kailashwati and her son Roshan Lal who are undisputedly co-owners of the said shop and some other property comprised in Khasra numbers 1654 and 1655 Khewat No. 337 Khatoni No. 787."

Even if the whole property is mentioned as being sold in a sale deed, a vendor cannot sell more than his own interest in the property. The contention of the learned counsel for the petitioner is that the petitioner being co-owner cannot be evicted in a rent petition. He has also argued that Rent Controller has no jurisdiction to decide the question of title and only the civil Court has jurisdiction to decide the dispute between the parties. He has also relied on the principles laid down in the case of Netar Ram and Ors. v. Hans Raj and Ors. 1985(2) R.C.R. 501. He has also relied on the principles laid down in the case of Balwant Singh v. Harbhajan Singh 1985(1) R.C.R. 613 wherein it has been held that authorities under Rent Control Act are not competent to determine the question of title.

Learned counsel for the respondent has cited before me the case of Munshi Ram of Rohtak v. Hari Ram adoptes son of Kundan 1985 H.R.R. 261. In the said case it has been held that there was denial of relationship of landlord and tenant. It was also held therein that tenant had challenged the title of the landlord and claimed ownership of property in dispute on the basis of adverse possession. It was further held therein that it was for the tenant to prove his title in a competent civil Court.

Learned counsel for the respondent has also relied on the case of Ram Murti, Patiala v. Gian Chand 1986 H.R.R. 167. It that case it has been held that eviction proceedings cannot be stayed on the mere allegation of the tenant that there was not relationship of landlord and tenant between the parties.

Learned counsel for the respondent has further cited before me the case of Dewan Chand Vs. Sh. Darshan Lal and Others, . In that case it has been held that it was for the Rent Controller to determine the relationship of landlord and tenant between the parties by examining the relevant evidence. It has been also held therein that mere stating that a complicated question is involved in the case, does not oust the jurisdiction of the rent authorities. It has been further held therein that Rent Controller without first determining the question of title between the parties directed the parties to get the question of title decided from the Civil Court.

The learned counsel for the respondent has argued that it was for the petitioner to get his title established and could not resist the ejectment order passed by the Rent Controller. So far as the question of merger of tenancy is concerned, I do not go to discuss the same because it has not been argued by any of the parties. So, the right of tenancy of the petitioner vis-a-vis the respondent qua the share not purchased by him and purchased by the respondent is not discussed in this case. A very short question that arises for consideration is whether a person who is a co-owner can be evicted by order in a rent petition by another co-owner? Suppose the question is answered in affirmative, the result will be a co-owner will be able to oust the another co-owner by virtue of a rent petition if the later was earlier a tenant. Another question that arises is whether a co-owner against whom the rent petition is filed, can he not give up his right of tenancy and claim partition and seek injunction from possession till the partition takes place? Here in this particular case, as mentioned above, at the time of arguments it has been an accepted position by both the sides that they had purchased the shop in dispute from different co-owners.

The learned Rent Controller has observed that Harinder Pal i.e. the vendor of the petitioner had 1/12 share in the area comprised in Khasra Nos. 1654 and 1655 and 1/12th share comes to 43 sq. yard and 8 sq. feet and against this area of the share of Harinder Rai, he had sold an area measuring 215 sq. yard and 5 sq. feet, out of the area of the said Khewat; that being so, Harinder Rai had already sold an excess area than that falling to his share and, therefore, he had no saleable interest in Khewat No. 337 as per jamabandi for the year 1982-83. A mutation No. 9627 dated 8.2.1988 was entered on the basis of the sale deed dated 11.2.1987 executed by Harinder Rai in favour of the petitioner but it was rejected by the revenue authorities. It has been also held by the learned Rent Controller that when the shop in dispute was already sold by some co-owners in favour of the respondent vide sale deed dated 10.11.1986, the same could not be sold again by another co-owner. It has been also held by the learned Rent Controller as under:-

"Since Harinder Rai had already sold an area much excess to that of his share in Khewat No. 337, therefore, at the time of partition of this Khewat between the co-owners, the entire share of Harinder Rai would go to his previous vendees and nothing would be left to be given to the respondent as a result of sale deed of dated 11.2.1987 in his favour. To quote an instance, suppose four shops S1, S2, S3 and S4 are jointly owned by A and B in equal shares, A has already sold three shops S1, S2 and S3 and then B sells only one shop S4. The S4 is again sold by A to his own vendee other than the vendee who had already purchased the said shop from B. In partition of the joint shops two shops each would fall to the share of A and B. That being so, the two shops of the share of A would go to the previous vendees of A and nothing would be left to be given to the subsequent vendee of A."

It is difficult to understand how a presumptive partition could be imagined by the learned Rent Controller. This finding also supports the submission of the learned counsel for the parties that property was not partitioned.

Therefore, unless the partition takes place, it is not possible to hold that the respondent has right to evict the petitioner under the provisions of the East Punjab Urban Rent Restriction Act, 1949 (Rent Act). The co-ownership of the vendors is not in dispute and, therefore, the petitioner can be said to have acquired any right of co-ownership and, therefore, taking re-course to the civil Court for deciding the ownership does not arise. In view of the above reasons, I find that the judgments of the Courts below are not in accordance with law.

This revision petition, is, therefore, allowed, the order of eviction passed by the learned Rent Controller is set aside and the rent petition is dismissed.