Oswal Singh Sabha vs J.K. and Company and Others

Dr. Vineet Kothari, J—The present Revision Petition has been filed by the petitioner-decree holder under Section 115 of the Code of Civil Procedure against the impugned order dated 09.10.2014 passed by the learned Senior Civil Judge & Additional Chief Metropolitan Magistrate No. 3, Jodhpur in Civil Misc. Suit No. 3/2014 by which order, the learned Court below had allowed the application filed by the respondent/tenant under Order 47 and Section 151 of the Code of Civil Procedure raising objection against the execution of the eviction decree against them.

The present revision petition has been filed by the landlord-decree-holder aggrieved by the order dated 09.10.2014 passed by the Executing Court in an eviction decree staying the execution of the eviction decree on the ground that on account of a status-quo order granted by the Hon''ble Supreme Court in a separate title dispute between the present landlord-Oswal Singh Sabha, and another person Mahendra Singh namely, SLP No. 7933/2007 "Ghewarchand & Ors. v. M/s. Mahendra Singh & Ors.", a status-quo order was passed on 03.08.2007. The relevant portion of the impugned order of the learned Trial Court dated 09.10.2014 is quoted herein below for ready reference:--

The learned counsel for the petitioner-landlord-decree-holder Mr. R.K. Thanvi, Senior Advocate with Mr. Narendra Thanvi submitted that the eviction decree has, admittedly, been become final with the rejection of the S.B. Civil Second Appeal No. 118/2013 "M/s. J.K. & Company v. Oswal Singh Sabha" filed by the tenant on 16.02.2015 by the coordinate Bench of this Court in which, in view of the wide definition of the ''landlord'', this very contention of the appellant-defendant-tenant, that the question with regard to the respondent''s ownership over the premises in question, goes to the root of the matter and, therefore, the second appeal of the defendant deserves to be admitted on the substantial question of law arising in the matter, was negatived by the learned Single Judge and the second appeal preferred by the appellant M/s. J.K. & Co. (respondent herein) was dismissed with the following observations:--

"9. Learned counsel appearing for the appellant while not pressing the grounds raised assailing the findings of the first appellate court on issue No. 1 & 2 framed by the trial court, contended that in view of the judgment of this court dated 4.12.06 passed in S.B.C. First Appeal No. 52/97, the respondent herein, cannot be considered to be owner of the premises in question and therefore, it is not entitled for decree of eviction against the appellant. Learned counsel submitted that the question with regard to the respondent''s ownership over the premises in question, goes to the root of the matter and therefore, the application preferred on behalf of the appellant under Order XXXXI Rule 27 CPC deserves to be allowed and while taking the documents annexed thereto on record, the appeal deserves to be admitted on the substantial question of law arising in the matter. Learned counsel submitted that the respondent being not the owner of the property, the suit for eviction preferred by it, must fail.

On the other hand, the counsel appearing for the respondent submitted that unless the appeal preferred is admitted by this court on the substantial question of law involved, the question of entertaining the application preferred by the appellant under Order XXXXI Rule 27 read with Section 151 CPC does not arise. Learned counsel submitted that since the grounds raised in the appeal questioning the findings on issue No. 1 & 2 are not pressed by the appellant, the appeal preferred deserves to be dismissed. Learned counsel submitted that even otherwise, the landlord and tenant relationship between the parties is not in dispute and therefore, the appellant which is admittedly the tenant of the respondent, cannot be permitted to contend that the respondent is not entitled for decree of eviction inasmuch as, the suit preferred by it for possession against Mahendra Singh and others, stands dismissed by this Court. Learned counsel submitted that as a matter of fact, the special leave petition preferred by Ghewar Chand and others, before the Hon''ble Supreme Court against the judgment and decree dated 4.12.06 passed by this court is pending consideration and therefore, nothing turns on the question that the suit preferred by Ghewar Chand and others as representatives of Oswal Singh Sabha against Mahendra Singh and others for possession of the property, stands dismissed.

I have considered the rival submissions of the learned counsel for the parties and perused the material on record.

Indisputably, a contract of tenancy between the landlord and tenant must exists before the landlord can file a suit for eviction against the tenant under the provisions of the Act of 1950. The words "landlord" and "tenant" stand defined under Section 3(iii) and 3(vii) of the Act of 1950 respectively. In order to appreciate the question raised, it will be appropriate to reproduce the provisions of Section 3(iii) and 3(vii) of the Act of 1950, which read as under:--

"(iii) "landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant relation to a sub-tenant.

(vii) "tenant" means-

(a) the person by whom or on whose account or behalf rent, is or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death."

A bare perusal of the definition of "landlord" quoted hereinabove makes it abundantly clear that the ownership of the premises is not the essential characteristic of a landlord rather, it is the receipt of the rent or the entitlement to receive the rent. The definition of "landlord" as set out u/s. 3(iii) is very wide and it includes in itself event he persons who are not actual landlords in common parlance. Thus, for the determination of the question of landlord and tenant relationship in a suit for eviction under the provisions of the Act of 1950, the question of title or ownership of the premises is not required to be gone into, but, the questions with regard to the landlord and tenant relationship, their rights and liabilities arising in the matter have to be determined.

In the instant case, the relationship of the landlord and tenant between the parties is not in dispute. As a matter of fact, the appellant, who is occupying the premises as tenant of the respondent, has no right to question its title over the premises in question in a suit for eviction and the court is not required to determine the question of title or ownership over the disputed premises. Therefore, the documents sought to be produced by the appellant by way of application under Order XXXXI Rule 27 CPC so as to question the ownership of the landlord over the premises in question, are not germane to the dispute adjudicated by the courts below, in any manner whatsoever. Accordingly, the application preferred by the appellant under Order XXXXI Rule 27 CPC deserves to be dismissed.

No other point has been pressed by the counsel for the appellant.

In view of the discussion above, no substantial question of law arises for consideration of this court in this second appeal.

In the result, the second appeal fails, it is hereby dismissed. No order as to costs.

Sd/- (SANGEET LODHA), J."

The learned counsel Mr. R.K. Thanvi, Senior Advocate with Mr. Narendra Thanvi submitted that the question of title or ownership in a suit for eviction is of no relevance and it is the settled legal position of law and, therefore, pendency of the matter before the Hon''ble Supreme Court in SLP No. 7933/2007 can not affect the rights of the landlord/appellant-Oswal Singh Sabha, in the present matter of eviction of the respondent and, therefore, also the impugned order dated 09.10.2014 passed by the Court below whereby, the execution proceedings were stayed in view of the status-quo order passed by the Hon''ble Supreme Court, deserves to be set aside.

On the other hand, the learned counsel Mr. Natha Ram Choudhary with Mr. Sanchit Singhvi appearing for the respondent-defendant-tenant submitted that in view of the status-quo order granted by the Hon''ble Supreme Court in the aforesaid SLP No. 7933/2007, the decree of eviction in the present case cannot be executed, as the possession of the petitioner over the suit property is in question and therefore, the same cannot be handed over to the petitioner-Oswal Singh Sabha in view of the title dispute with another person namely, Mahendra Singh being pending in Hon''ble Supreme Court. The learned counsel also urged that the present revision petition filed by the petitioner is not maintainable since if the application of the respondent filed under Section 47 read with Section 151 of the Code of Civil Procedure was not accepted, the proceedings would not have terminated in the present execution proceedings and, therefore, the provisions contained in Section 115 CPC are not attracted.

I have heard the learned counsels for the parties at length and upon perusal of the material available on record, this Court is of the opinion that the question of title or ownership pending before the Hon''ble Supreme Court, is of no relevance in the present eviction proceedings. In view of the wide definition of "landlord" as mentioned in the Rent Control Act of 1950. In the present case, the relationship of ''landlord'' and ''tenant'' between the parties is not in dispute nor the decree of eviction having become final against the tenant is in dispute. In view of the wide definition of "landlord", the person or persons authorised to receive the rent also falls within the definition of "landlord" and even such person or persons can also file suit against the tenant and seek eviction decree from the competent court and is also entitled to get the possession of the suit property in question. The title or ownership of a person cannot be questioned in a suit filed for eviction of the tenant. Here, in the present case, the respondent M/s. JK & Company is admittedly a tenant of the petitioner, Oswal Singh Sabha, and the dispute with regard to title over the property in question with a third party Mahendra Singh is of no relevance in the present proceedings of eviction which has admittedly become final upto the High Court with the dismissal of the Second Appeal of the defendant-M/s. JK & Company, as aforesaid. This Court is of the opinion that mere pendency of the Special Leave Petition No. 7933/2007 titled as "Ghewar Chand & Ors. v. M/s. Mahendra Singh & Ors." wherein, the Hon''ble Supreme Court has passed the status-quo order, does not affect the right of the present petitioner landlord, Oswal Singh Sabha, in the present execution proceeding.

The status-quo order in regard to the title dispute between the parties directing the parties to maintain status-quo in which dispute, the present defendant-tenant, M/s. J.K. & Company, is admittedly not a party, therefore, the status-quo order, as passed by the Hon''ble Supreme Court in the aforesaid SLP, cannot enure to the benefit of the present defendant-respondent-tenant in the present eviction decree and the execution proceedings cannot be stalled on that ground. The contention of the respondent-defendant that in view of the status-quo order of the Hon''ble Supreme Court with regard to title and therefore, suit premises cannot be evicted, is misconceived and is liable to be rejected and the same is, accordingly, rejected. Similarly, the objection of the respondent-tenant about the maintainability of the present revision petition is also liable to be rejected because this Court is of the view that if the application filed by the respondent under Section 47 CPC, was not accepted then, the present eviction proceedings would have been finally decided, with the execution of the eviction decree in favour of the decree-holder and, therefore, the present revision petition is held to be maintainable.

Accordingly and in view of the above, the present Revision Petition filed on behalf of the petitioner-landlord-Oswal Singh Sabha through its General Secretary Mahendra Singh Bhansali S/o Mool Chand Bhansali stands allowed. The impugned order dated 09.10.2014 passed by the Court below is set aside and it is directed the eviction decree shall be executed forthwith and the possession of the property in question shall be handed over to the petitioner-Oswal Singh Sabha expeditiously. No costs. A copy of this order be sent to the learned Senior Civil Judge & Additional Chief Metropolitan Magistrate No. 3, Jodhpur and to the parties concerned forthwith.