Qamaruddin vs Smt. Surjeet Kaur

Vijay Kumar Shrivastava, J.—This appeal has been preferred against the judgment and decree dated 20-11-1998 passed by first Additional District Judge, Mahasamund in Civil Suit No. 16-A/1997 decreeing the Suit put for eviction in favour of the plaintiff. The plaintiff averring that she is the owner of disputed premises which consists a house and a plot and the defendant who is in possession over the said property being encroacher filed a suit for eviction. The disputed property was initially let out to the defendant on 1-7-1976 on a monthly rent of Rs. 85/-. On 17-7-1984 during continuation of the tenancy, an agreement to sell was executed by the plaintiff in favour of the defendant for a consideration of Rs. 27,000/- taking an advance of Rs. 5,000/- cancelling the tenancy. The plaintiff did not comply with the condition, therefore, the defendant filed a civil suit for specific performance of the contract but could not succeed in getting the contract performed. Meanwhile, the plaintiff filed an application for eviction before the rent controlling authority, which passed an order of eviction against the defendant, but the order on challenge in revisional forum of High Court has been quashed vide order dated 27-12-1991. In that proceeding, the defendant, in his written objection, admitted that after the agreement to sell the relation between the plaintiff and the defendant converted into seller and purchaser instead of landlord and tenant. Taking shelter of all these facts and treating the defendant an encroacher upon the disputed property, the plaintiff filed a suit for eviction against the defendant.

The defendant vehemently opposed the allegations made in the plaint and claimed that he is still tenant of the plaintiff. The defendant also preferred counter claim against the plaintiff for declaration of title averring that he perfected his title over the suit property by adverse possession.

Both the parties in support of their claims adduced evidence. Learned trial Court, after evaluating the same, dismissed the counter claim and decreed the suit in favour of the plaintiff. Being aggrieved by that judgment and decree, this appeal has been preferred by the defendant.

The appellant relying on the judgment rendered by Hon''ble the Apex Court in the matter of P. Veerappa Vs. M.A. Mohammed Amanulla, , contended that the appellant-defendant being tenant of the respondent-plaintiff and the said relationship being revived again due to non-performance of the agreement to sell, his eviction can only be ordered upon fulfilling the conditions laid down u/s 12 of the Chhattisgarh Accommodation Control Act, 1961 henceforth ''the Act''). On the other hand, the respondent contended that Hon''ble the High Court, in civil revision, set aside the order passed by the rent controlling authority on one of the grounds that the relationship of landlord and tenant terminated in the year 1985 and further contended that the appellant himself in eviction proceeding before the rent controlling authority made admission that the relationship of landlord and tenant had been extinguished as a result of entering into an agreement to sell.

Hon''ble the Apex Court in para 6 of its judgment in P. Veerappa''s case (supra) observed as below:--

Para 6: So long as the agreement subsists, it is settled law that the lesser rights of tenancy stood merged with larger rights accrued under the agreement. But unfortunately in the compromise itself it was recognized that the appellant was to pay arrears of rent till the date of compromise. In other words, the appellant recognized the reversion to his pre-existing rights as tenant upto the date of the compromise. In other words, subject to compliance of the terms of the contract, his tenancy rights continued. The terms have not been complied with and the agreement came to an end. Thereby, the appellant''s pre-existing rights as a tenant stood revived and the appellant and the respondent were bound by the relationship of landlord and tenant. Therefore, the Rent Controller was entitled to proceed with the matter in accordance with the law. We do not say any further since the matter is pending before the Rent Controller. It would be open to the appellant to raise all the defences open to him in the Rent Control proceedings.

The tenant has been defined in Section 2(i) of the Act, which reads as below:--

Sec. 2(i): "tenant" means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.

From bare reading of the above provision and also the law laid down by Hon''ble the Apex Court in P. Veerappa''s case (supra), I am of the opinion that once a relation of landlord and tenant exists, it continues till an order or a decree for eviction is made or emerged with some other large rights.

In para 3 of the plaint, the plaintiff pleaded that the defendant took the suit premises on monthly rent at the rate of Rs. 85/- on 1-7-1976 and remained there as her tenant. The defendant, in his written statement admitted the said fact. Therefore, admittedly, there was a relationship of landlord and tenant between the plaintiff and defendant.

Undisputedly, on 17-7-1984, an agreement to sell the disputed property was executed for a consideration of Rs. 27,000/- and a sum of Rs. 5,000/- was paid as an advance. A suit for specific performance of contract was filed by the defendant and the said suit was dismissed on 25-4-1991 and the appeal filed by the defendant was also disallowed vide order dated 15-7-1996 by the High Court.

Learned lower Court held that before the rent controlling authority the defendant pleaded that he is not tenant of the plaintiff and Hon''ble the High Court in revision rejected the order passed by the rent controlling authority without accepting the relationship between them to be landlord and tenant, therefore, the defendant is estopped to challenge the relationship. Learned Lower Court also held that the relationship of landlord and tenant between the plaintiff and defendant does not exist.

The rent controlling authority vide order dated 22-6-1991 passed an order of eviction in favour of the plaintiff. The said order was challenged in revision before the High Court of Madhya Pradesh. The revision was registered as Civil Revision No. 335/1991. From perusal of the certified copy of the order passed by the Hon''ble High Court in that revision, it emerges that the appellant had preferred an application for eviction on the ground that possession of the premises was taken by other party forcibly and also on the ground of bona fide requirement. Hon''ble the High Court held that without there being any pleading of landlord and tenant and without there being any proof of bona fide requirement, the order of eviction could not have been passed by the rent controlling authority and accordingly allowed the revision and set aside the order passed by the rent controlling authority dated 22-6-1991.

In para 6 of the plaint, the plaintiff pleaded that in the proceeding before the rent controlling authority, the defendant in his objection admitted due to execution of the agreement dated 17-7-1984, the relationship of landlord and tenant extinguished. The defendant, in his written statement, has not disputed the fact that he, in his objection, has made such an averment, however, stated that the plaintiff herself disputed the agreement dated 17-7-1984, and treating the defendant her tenant, filed an application u/s 23-J of the Act for eviction, and in her evidence also, she accepted the defendant to be her tenant. Therefore, the defendant is the tenant of the plaintiff and law of estoppel applies against the plaintiff.

From the law laid down by Hon''ble the Apex Court in P. Veerappa''s case (supra) and the definition of tenant, it is clear that if the agreement to sell was not performed and came to an end, then the pre-existing rights of landlord and tenant revived, therefore, in the instant case, the relationship of landlord and tenant between the plaintiff and defendant was legally continued and revived, therefore, whatever admissions have been made in contravention of this legal position, they carry no value. Therefore, the admissions made by the defendant in his objection raised before the rent controlling authority do not stop him to say that the relationship of landlord and tenant still exists between the plaintiff and defendant.

The plaintiff brought the suit on the ground that the defendant did not remain his tenant and virtually he is an encroacher, but to support her claim, she failed to examine herself before the Court. Hon''ble the Apex Court in rendering judgment in Vidhyadhar Vs. Manikrao and Another, as below:--

Para 17: Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbaksh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption u/s 114 of the Evidence Act, 1872 against a party who did not enter the witnesses-box.

Here in the instant case, the plaintiff did not enter the witness-box to support her claim that the defendant is not her tenant but an encroacher. On the other hand, the defendant entered the witness-box and deposed that he is living in the suit accommodation in the capacity of tenant. He also deposed that since the year 1970, he remains in the suit accommodation as tenant. In cross-examination also, he deposed that he is tenant of the plaintiff Smt. Surjeet Kaur. Therefore, here in the instant case, non-examination of the plaintiff herself was fatal, and on drawing adverse inference as also relying on the statement of the defendant, it was established that the defendant was the tenant of the plaintiff.

From the aforesaid legal position and evidence, it is proved that on the date of filing the suit, the defendant was tenant of the plaintiff and, therefore, no eviction decree could have been passed against him without fulfilling the grounds envisaged u/s 12 of the Act. The findings arrived at by the trial Court are erroneous as also the eviction order passed treating the defendant as encroacher is also erroneous. In the result, the appeal succeeds and is allowed. The judgment and decree passed by the trial Court is set aside. Taking into consideration the facts of the case, the parties arc directed to bear their own costs.