Nanak Chand vs Master Ajit Singh and Another

Mehar Singh, J.—On August 10, 1951 respondent Ajit Singh obtained an order of eviction against Nanak Chand appellant and Babu Ram in an application for eviction under the Rent Act. The order of the Rent Controller was based on a compromise between the parties under which a year''s time was given to Nanak Chand appellant and Babu Ram to vacate the disputed site.

The order of eviction according to section 17 of the East Punjab Urban Rent Restriction Act 1949, (East Punjab Act No. 3 of 1949) is to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Ajit Singh respondent made two execution applications to execute the eviction order but had the same consigned to the record room without notice or knowledge of the two persons against whom the eviction order was. Thereafter he made third execution application, out of which this second appeal has arisen, in which he claimed eviction of Nanak Chand appellant and Babu Ram. Nanak Chand appellant thereupon made an objection application u/s 47 of the CPC claiming that five days after the date of the eviction order, that is to say on August 15, 1951, Ajit Singh respondent created an oral tenancy in his favour of the site for a rental of Rs. 5/- per mensem, and ever since he has been in possession of the site paying rent to Ajit Singh respondent as tenant. To this the reply given by Ajit Singh respondent was that ho such new tenancy was created, and apart from his bare denial in his reply he said nothing more.

As his Own witness Ajit Singh respondent in examination-in-chief again gave bare denial to the creation of new tenancy in favour of Nanak Chand appellant. But in cross-examination he has given his own version of what happened. As I read that version it is this: when after the expiry of one year from the date of the eviction order Ajit Singh respondent sued execution of the eviction order, Babu Ram asked him to allow him to carry on his business and that in case of necessity or requirement he (Babu Ram) would vacate the site. A little later in cross examination Ajit Singh respondent says that the rent of the site was to be paid by Nanak Chand appellant. He does not explain in what Capacity Nanak Chand appellant was to pay the rent. He admits that for at least seven years under receipts Exhibits R.2 to 47 and R.50 to 58 he has been receiving rent from Nanak Chand appellant. In all these receipts it is clearly stated that rent was received by Ajit Singh respondent from Nanak Chand appellant. There is one letter Exhibit R.1 written by the respondent to the appellant on November 26, 1958, in which he asks Rs. 5/- due for the ensuing month of December from the appellant but it is not clearly stated in this that the amount is rent. However, there is another letter written by him to the appellant, exhibit R. 60, of September 2, 1957, in which it is clearly stated that he was demanding one month''s rent of Rs. 5/- from the appellant. In none of these documents does anywhere Babu Ram figure. This is how I read the statement of Ajit Singh respondent.

The learned District Judge has read it in a slightly different manner. His findings based largely on the statement of respondent Ajit Singh are that after the eviction order against Nanak Chand appellant and Babu Ram the continuance of Nanak Chand appellant in occupation of the site against payment of Rs. 5/- as rent per mensem was in fact an arrangement continued as a concession under the decree, that is to say the eviction order, and hot in derogation of the same, that Ajit Singh respondent had allowed this arrangement at the instance of Babu Ram, co-judgment-debtor of Nanak Chang appellant, who had requested the respondent to allow Nanak Chand appellant to stay for some time on the site, and that Ajit Singh respondent did not create a new tenancy in favour of Nanak Chand appellant after the eviction order as he continued suing for execution of the eviction order within limitation, the last application being the third. Babu Ram is not a witness in the case.

It will be seen that as I read the statement of Ajit Singh respondent there is nothing in it that at the request of Babu Ram, he permit ted Nanak Chand appellant to remain in occupation of the site. All the says is that Nanak Chand appellant was to pay rent. So that to my mind the appellate authority has not quite rightly read the statement of Ajit Singh respondent. I will, therefore, consider the case from both angles.

The original eviction order is not on the record. In his reply Ajit Singh respondent does not explain in what capacity he obtained eviction order against Nanak Chand appellant. As a witness in the executing Court in the objection petition of Nanak Chand appellant, he explains that the eviction order was obtained by him against Nanak Chand appellant as the karinda or servant of Babu Ram. He further says that he continuously received rent for seven years at the rate of Rs. 5/- per mensem from Nanak Chand appellant and it was also received from him as the karinda or servant of Babu Ram. It therefore, appears from his statement that he was treating the continuance of the tenancy with Babu Ram, whereas the learned appellate authority has taken it that he received rent from Nanak Chand appellant merely on the request of Babu Ram to allow Nanak Chank appellant to continue the letters business on the site. At the Bar it has been stated that eviction order was obtained against Nanak Chand appellant as sub-tenant of Babu Ram Whatever may be the position, whether the eviction order was obtained against Nanak Chand appellant as sub-tenant of Babu Ram. Whatever may be position, whether the eviction order was obtained by Ajit Singh respondent against Nanak Chand appellant as karinda or servant of Babu Ram or as subtenant of Babu Ram, it was not obtained against him as tenant of Ajit Singh respondent.

Now, first in regard to the position accepted by the appellate authority the it was at the request of Babu Ram that Ajit Singh respondent allowed Nanak Chand appellant to remain in possession of the site on payment of Rs. 5/- as rent per mensem, and considering the contents of the copies and two letters of Ajit Singh respondent to Nanak Chand appellant, it appears to me clear that this is a case which is a close parallel to K.B. Capadia v. Bai Jerbai Warden 1949 F.C.R. 262, for the also acceptance of rent by third persons who had been introduced by the original tenant was taken to create tenancy between them and the landlord. That was a case under the Bombay Rent Act. The learned counsel for Ajit Singh respondent contends that even though Ajit Singh respondent accepted the rent from Nanak Chand Appellant it must further be shown as held bye Dua J. in Narota Ram Salig Ram v. Bhagwat Krishna AIR 1960 P&H 385 that he accepted the rent consciously agreeing to create a fresh tenancy in favour of Nanak Chand appellant. This is to be gathered from to circumstances of the case. In his reply to the objection petition of Nanak Chand appellant, the respondent never disclosed the arrangement upon which reliance is placed on his behalf now, as a witness he never disclosed this in his examination in chief, and in the cross-examination, as I read his statement, he does not say that he allowed Nanak Chand appellant to remain in occupation of the site but says that he allowed Babu Ram to so remain in its occupation. But even if the statement is read as learned appellate authority reads it, it does not show that he was allowing the occupation under the eviction order and as otherwise than a new tenancy. It has been argued that if that was so he would not have sued out first two execution applications and would not be pursuing now the third, but so far as the first two execution applications are concerned, Nanak Chand appellant has had no knowledge of the same, that is merely conduct of Ajit Singh respondent, but then he might well have been attempting to ride two horses at the same time. In no receipt and in his letters is it anywhere stated by Ajit Singh respondent that he was receiving rent from Nanak Chand appellant as karinda or servant of Babu Ram. So his receiving rent continuously for a period of a little over seven years from Nanak Chand appellant coupled with letters of demand of rent from this appellant and not from Babu Ram, is indicative of his intention that he created a separate tenancy of the site in favour of Nanak Chand appellant. Nanak Chand appellant, it will be -seen, was not the original tenant of the respondent, and unless the respondent accepted rent from him on behalf of the original tenant Babu Ram, he could not possibly accept rent from him except on the ground that he was accepting him as a new tenant. So that here is a case in which circumstances indicate the agreement of the respondent to accept Nanak Chand appellant as a tenant under the new oral tenancy. The fact that he tried to suppress this arrangement also speaks that he was conscious of his agreement in this respect. So even if the case referred to by the learned counsel for the respondent is strictly applied to the facts of this case it does not help the respondent.

Then in regard to the manner in which I have read the statement of Ajit Singh respondent and that shows that it was Babu Ram who asked the respondent to let him continue in the site promising to vacate the same as and when required or necessary and it was to this that the respondent agreed. But if so why should Nanak Chand appellant pay the rent as the respondent says in his statement. It is an after thought on his part to say that he was to receive the rent from him as karinda or servant of Babu Ram. If he had allowed a concession, to Babu Ram and if this had been his real defence to the objection petition of Nanak Chand appellant, it might have been open for him to argue that some kind of concession was allowed by him to Babu Ram and that was under the eviction order, but this is not a stand that he has clearly taken. He has been compelled in cross-examination to admit bits of the case of Nanak Chand appellant and therefore has not made consistent statement in this respect. Consequently even on consideration of the statement in this manner there is nothing that assists the case of Ajit Singh respondent.

In the circumstances the learned appellate authority was not justified in holding that occupation of Nanak Chand appellant of the site in question has been a concession by the respondent to him. No doubt tile eviction order was also against Nanak Chand appellant. But Nanak Chand appellant was not the tenant of the respondent, and he has been allowed to remain in occupation of the site for something Over seven years On payment of rent and conclusion has already been reached that this was a new arrangement by him with Nanak Chand appellant, or in the circumstances this is not a case of concession under the eviction order. There has been new tenancy between Nanak Chand appellant and Ajit Singh respondent and in view of that Nanak Chand appellant cannot be evicted from the site in execution of the previous eviction order for this new arrangement has come about after the date of that order.

There has been one other argument on behalf of Ajit Singh respondent that this second appeal is not competent. The reason advanced for this is that it is in execution of an eviction order, which order was made under the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act No. 3 of 1949), and in view of section 15 of that Act no second appeal is provided under the provisions of that Act. The argument is entirely misconceived for section 15 of the Act concerns only an appeal from the order of a Rent Controller and a revision from the order of the appellate authority. Section 17, to which reference has already been made, clearly says that eviction order made under either section 10 or 13 in appeal u/s 15 shall be executed by a civil court having jurisdiction in the area as if it were a decree of that Court. By statutory fiction the eviction order is made a decree and it is executable as such. In all matters concerning execution of a decree where a judgment debtor wishes to seek some relief by way of objection application u/s 47 of the CPC there is first appeal and there is second appeal under the provision of the Code of Civil Procedure. By the provisions of section 17 the matter of execution of the eviction order as a decree is from that stage taken out of the scope of East Punjab Act No.3 of 1949 and brought directly under the provisions of the Code of Civil Procedure.

In consequence, the orders of the Courts below are reversed and accepting the appeal of Nanak Chand appellant the execution application of Ajit Singh respondent is dismissed. In the circumstances of the case the parties are left to their own costs throughout.