Mohinder Kumar vs Narinder Kumar and others

J.V. Gupta, J.—This is landlord''s petition in whose favour eviction order passed by the Rent Controller was set aside in appeal.

Mohinder Kumar landlord filed the petition with the allegations that the land in dispute was let out originally by Lala Hari Parshad to Khushal Singh, tenant-Respondent No. 1 vide rent note dated 1-7-1948 Ex. R-11 for a period of 5 years beginning from 1-7-1948 and ending on 30-6-1953 on an annual rent of Rs. 200/- for setting up a diary thereon. After the expiry of the said period, the tenant continued occupying it as a statutory tenant. Mean while Lala Hari Parshad died and on his death the land in dispute was inherited by his sons. Thus Khushal Singh became tenant under them by operation of law. Apart from that the tenant also had attorned to the aforesaid persons vide rent note Ex. D-1 dated 4-8-1958 and agreed to pay rent at the rate of Rs. 300/- plus house tax per annum, Later on Puran Chand died on 11-2-1974 and on his death as per his will Mohinder Kumar Petitioner became his sole heir and thus Khushal Singh became a tenant on the suit land under Mohinder Kumar and others. During the continuance of the tenancy, the tenant also executed another rent note Ex. R-1 dated 7-9-1963 in favour of Puran Chand etc. According to the landlord, there was a family settlement between Yadav Parkash, Anand Parkash and the landlord himself and according to that settlement the land in dispute fell to his share along with his right to recover the arrears of rent upto date. Ejectment of the Respondent was claimed on the ground that the tenant did not pay the arrears of rent and house tax since 1-7-1973 and secondly, he had sublet a portion of the suit land to Respondents Nos. 2 to 12 without the written consent or permission of the landlord. Thirdly, the tenant had changed the users of land for which it was let out inasmuch as instead of setting up a dairy he constructed shops and residential houses and that his sub-tenants have also built residential houses thereon. The tenant filed his written statement and admitted that the premises were let out to him by Lala Hari Parshad. He, however, stated that the purpose of letting was to construct residential as well as non-residential buildings over it. According to him, the lease in his favour was subsequently renewed from year to year. Later on, after the death of Lala Hari Parshad, Puran Chand the father of the Petitioner Mohinder Kumar agreed that he will not eject the answering Respondent from the disputed land and that he will go on paying the rent to him. However, all the amount due was tendered on the first date of hearing. The ground of sub-letting was also denied. It was stated that Respondents Nos. 3 to 12 are his relations and he had allowed them to reside and carry on their business over the disputed land as a licensee. It was disputed that the said Respondents were sub-tenants as he was not charging any rent from them. Regarding change of user, it was pleaded that the allegations are incorrect. Respondent No. 2 Attar Singh filed a separate written reply and took the plea that he is in possession of this shop as tenant on a monthly rent of Rs. 30/- which he had taken on rent from Khazan Singh, father-in-law of Respondent No. 1 and the rent was paid to him. Respondents Nos. 3 to 12 filed their separate written statements. They denied most of the facts for want of knowledge and, the ground of ejectment was disputed. They pleaded that they are licencees under Khushal Singh Respondent being their relations and are in possession of the premises for the last more than 20 years. The learned Rent Controller framed five issues including the one as to whether the Court had jurisdiction to try this application. During the pendency of the petition before the Rent Controller on 2-9-1983 a compromise was effected between the landlord and Respondent-tenant. The tenant admitted the ground of ejectment on certain conditions and as a result thereof, the learned Rent Controller passed the eviction order against the Respondents.

Dissatisfied with the same, Narinder Kumar and 6 others who are alleged to be sub-tenants filed the appeal. Objection was raised on behalf the landlord before the Appellate Authority, that the said sub-tenants have no locus standi to file the appeal because they are to go with the main tenant i.e. Khushal Singh. This preliminary objection was repelled by the Appellate Authority on the basis of Supreme Court judgment reported in Karam Singh Sobti v. Pratap Chand (1964) 66 P. L R. 210, wherein it was held that where a suit for ejectment is filed both against the tenant and the sub-tenant and one decree is passed against both, the sub-tenant has his right to appeal against that decree. The right cannot be affected by the tenant''s decision not be file an appeal. There being one decree the sub-tenant has right to have it set aside even though the tenant would also be freed from the decree.

On merits, the learned Appellate Authority found that the Rent Con-troller has no jurisdiction to try this petition because the landlord failed to prove that the premises in dispute was the "rented land" as defined under the Act. According to the appellate authority, the rented land was never let out separately for the purpose of being used principally for business or trade as defind u/s 2(f) of the Haryana Urban (Control of Rent and Eviction) Act, 1973. In that situation according to the Appellate Authority the jurisdiction will be that of the civil Court and not of the authority under the Act. Consequently, ejectment application was dismissed. Dissatisfied with the same, the landlord has filed this petition in this Court.

It was stated on behalf of the landlord Petitioner that now the dispute only remains between Respondents Nos. 3 and 6 i.e. Desa Singh and his son Pritpal Singh because as regards the other Respondents the matter has been settled as they have purchased the land from the landlord after the decision of the appeal. Consequently, notice was issued only to Respondents Nos. 3 and 6.

Effort was made in this Court as to settle the matter with Respondents Nos. 3 and 6 as well on the same terms on which the land was sold to the other Respondents. However, in spite of the efforts, parties did not come to terms as the landlord wanted...... Nos. 3 and 6 were prepared to pay the same price or a little more for which the land was sold to other Respondents.

Learned Counsel for the Petitioner contended that when the tenant compromised with the landlord and agreed to vacate the premises then in that situation, no appeal could be filed on behalf of the substenants who derived their right from the tenant. Thus argued the learned Counsel no appeal was competent on behalf of the said Respondents before the appellate authority. In support of this contention he referred to Des Raj of Sonepat v. Chand Tari 1985 H. R. R. 330 and Importers and Manufacturers Ltd. Vs. Pheroze Framroze Taraporewala and Others, . It was further contended that the appellate authority has made out a new case for the Respondents which case was never pleaded by them.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on the record. Admittedly, the learned Rent Controller did not go into the merits of the case and passed the eviction order on the basis of compromise alone between the parties i.e. the landlord and the tenant Khushal Singh. The present Respondents were never party to the said compromise. There was already an issue framed by the Rent Controller as to whether the Court had jurisdiction to try this application or not. Not only that in ejectment application in para 9 the landlord specifically pleaded that the land in dispute was let out to Respondent No. 1 principally for business or trade as defined under the Haryana Urban (Control of Rent and Eviction) Act, 1973 and the land being situated within the limits of Municipal Committee, Yamuna Nagar, this Court has jurisdiction to hear the application Thus it could not be successfully argued that this was never the case set up by the landlord or there was no issue to this effect. Whether the demised premises is a rented land or not was for the landlord to prove in order to secure ejectment. Rented land is defined u/s 2(f) of the Act which means any land let separately for the purpose of being used principally for business or trade. The landlord did allege that the land was rented out for doing business but he failed to prove the same by any cogent evidence. Not only that the subsequent rent notes Ex. D1 dated 4-8-1958 and Ex. R1 dated 7-9-1963 clearly show that the tenant was allowed to raise construction on the said land and actually construction was raised by the tenant as well as by the alleged sub-tenants. It could not be disputed that the jurisdiction of the Rent Controller will only be qua the buildings defined under the Act or with respect to the "rented land" as defined under the Act. If the vacant land is let out for any other purpose than the business or trade, then in that situation the Rent Controller under the Act will have no jurisdiction to pass any eviction order. The proper remedy will then be a suit before the civil Court. Thus, I do not find any illegality or impropriety in the findings of the appellate authority as to call for any interference.

As regards the locus-standi of the Respondents to file the appeal, the matter has been settled by the Supreme Court in Karam Singh Sobti''s case (supra) which was relied upon by the appellate authority. It was held therein that where a suit for ejectment is filed both against the tenant and sub-tenant and one decree is passed against both, the sub-tenants has his right to file appeal against that decree.The right cannot be affected by the tenant''s decision not to file an appeal. There being one decree, the subtenant has right to have it set aside even though the tenant will be freed from the decree. The judgments relied upon by the learned Counsel for the Petitioner are clearly distinguishable and have no applicability to the facts of the present case. It may be pointed out that the demised premises is no more a vacant land and buildings have been raised thereon by the Respondent. That being so, their interests are materially affected by any eviction order passed against Khushal Singh or against them. The landlord himself made the prayer in the ejectment application that orders be passed directing the Respondents to quit the land in dispute and deliver its vacant physical possession.

In these circumstances, the petition fails and is dismissed with costs.