Shashi Sharma vs Manjit Kaur

Gurmeet Singh Sandhawalia, J.—Challenge in the present revision petition is to the order of the Appellate Authority, Jalandhar dated 02.12.2011 whereby the Rent Controller was directed to assess the provisional rent after hearing the parties and the appeal of the respondent-landlady was allowed. The order dated 19.07.2011 whereby the Rent Controller had not assessed the rent on the ground of denial of relationship of landlord-tenant was set aside. A perusal of the paperbook would go on to show that initially the respondent-landlady filed a civil suit No. 69 of 2008, for mandatory injunction, directing the petitioner herein to withdraw from the premises shown as red colour in the site plan, which was part of property bearing No. 770, Mota Singh Nagar Market, Jalandhar City. Recovery of Rs. 2,01,362/- on account of use and occupation of the premises and for recovery of further mesne profits was also prayed for.

The defence taken by the petitioner-tenant was that the suit was not maintainable as he was a tenant in the premises in dispute and it was a counterblast to his suit against the landlady and her husband. It was the case of the petitioner himself that he was inducted as a tenant @ Rs. 4000/- per month in the premises in question and the rent note dated 22.01.1996 was executed and the rent note dated 01.02.1997 upon which the respondent-landlady relied upon was denied. The suit was eventually dismissed on the ground that the respondent-landlady had no control over the shop in dispute and the petitioner was not a licensee as pleaded but a lessee. A finding was, however, recorded that the owner was Gurcharan Singh, husband of the landlady and accordingly, it was held that the suit for mandatory injunction was not maintainable and it was dismissed vide judgment and decree dated 06.10.2009.

Thereafter, the respondent-landlady filed ejectment petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, on the ground of non-payment of rent from 01.05.1997 and for personal use and occupation.

In the written statement filed by the petitioner, plea taken was that the suit of the landlady had been dismissed and appeal had been filed and no parallel proceedings could be maintained and there was a contradiction as such between the claim of the landlady. Further plea taken was that part of the property had already been sold and was not in the ownership of the landlady. The Rent Controller, while framing issues on 19.07.2011, accepted the argument of counsel for the petitioner that once the relationship of landlord-tenant had been denied, the landlady was not justified in claiming the arrears of rent. Reliance was placed upon two judgments of this court in M/s. Rachitech Engineering Pvt. Ltd. v. M/s. Kundcm Steel Pvt. Ltd. 2007 (1) RCR (Civil) 218 (P & H) and Hukama Devi and Others Vs. Bhagwan Dass, . Resultantly, an appeal was preferred successfully by the respondent-landlady wherein it was noticed that the petitioner has nowhere in the written statement taken the plea that he was not tenant of the landlady nor denied the findings of the Civil Court. Accordingly, as noticed above, it was held at this stage, the Court was to assess the provisional rent and not to give any finding on merits and the order was set aside.

Counsel for the petitioner has vehemently submitted that vide the sale deed dated 09.04.2008, husband of the respondent-landlady, Gurcharan Singh sold the property to Sneh Rani and she had filed an application to be impleaded as party in the petition. The respondent was no longer owner of the shop in dispute. Reliance was also placed upon the observations of the Civil Court inter se the parties wherein while deciding the issue that whether the petitioner was a licensee or not, it had been observed that the husband of the landlady was owner. Reliance is also placed upon the communication dated 29.09.1998, addressed by Gurcharan Singh to the Municipal Corporation to show that he was only owner of small portion vide sale deeds dated 12.08.1993.

Counsel for the respondent, on the other hand, submitted that once the petitioner had himself, in the civil suit, taken the plea that he was a tenant in the premises, he, now, could not wriggle out and submit to the contrary and challenge the ownership of the respondent-landlady. It is submitted that in such circumstances, the judgments relied upon by the Rent Controller would not be applicable as there was already a finding inter se the parties and in view of the admission, he was estopped from doing so. It was further submitted that the petitioner was in occupation of the property without payment of rent since 1997 and was taking advantage of the pendency of the litigation and enjoying its fruits, without even paying the rent. Reference was made to the sale deed dated 06.08.1993 to show that the respondent-landlady was owner (Annexure R1). It is further submitted that 4 sale deeds had been executed on the said date in favour of the family member of the landlady for the property in question and the order of the Appellate Authority was justified. Reliance has also been placed upon sale deed dated 09.04.2008, allegedly executed by Gurcharan Singh, husband of the landlady to Sneh Rani who has also filed CM No. 16830-CII of 2013, to be impleaded as respondent No. 2 in the present revision petition.

While issuing notice of motion, this court had directed the Rent Controller to assess the provisional rent but had further directed that there would be no condition regarding deposit of the rent by any stipulated date. On 03.03.2012, the Rent Controller assessed a sum of Rs. 17,20,512/- and fixed the case for filing reply to the application under Order 1 Rule 10, filed by Sneh Rani, the applicant.

After hearing counsel for the parties, this Court is of the opinion that the order of the Appellate Authority is liable to be upheld. Admittedly, in the prior litigation inter se the parties, the petitioner has himself taken a plea that he was a tenant to avoid the claim in the civil suit. In such circumstances, it would not be justified for him to back track from his own stand and now take a plea that the husband of the respondent-landlady has sold portion of the shop to one Sneh Rani. The status of the petitioner would, in no manner, be changed and he would continue to be a tenant in the premises and thus, liable to deposit the rent.

It is settled proposition of law that the landlord need not be the owner of the property and even if he is granted the authority, tenancy right can be created and therefore, the argument that the respondent is not owner/landlord, is without any basis. Even otherwise, the principle of estoppel, in view of the provisions of Section 116 of the Evidence Act, 1876 would come into play against the tenant who cannot deny the title of the landlady during the subsistence of the tenancy as has been held by this Court in Madan Lal and Another Vs. Rajesh Kumar (Deceased) and Others, . The Apex Court in Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones, while discussing the underlying policy of Section 116 of the Evidence Act held that it was based upon a healthy and salutary principle of law that a tenant who had got possession on the basis of the contract, through his landlord, cannot be permitted to question the title and the principle of promissory estoppel would be attracted. It was noticed that the person cannot be allowed to approbate and reprobate at the same time. Relevant observations read as under:

"13. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.

The principle of estoppel arising from the Contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant''s entry into possession on the admission of the landlord''s title that the principle of estoppel is attracted.

Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time.

As laid down by the Privy Council in Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones, . "It (Sec. 116) deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation."

Similarly, in State of A.P. and Others Vs. D. Raghukul Pershad (D) by L.Rs. and Others, , the said issue was reiterated and it was held that without surrendering possession under Section 111 of the Transfer of Property Act, 1882, the issue of title cannot be disputed. Relevant observations read as under:

"The law is settled by this Court in D. Satyanarayana Vs. P. Jagadish, that the tenant who has been let into possession by the landlord cannot deny the landlord''s title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents."

The observations of this Court in M/s. Rachitech Engineering Pvt. Ltd. (supra) would not be of any help since in the said case, there was no prior litigation inter se the parties as such vide which they would be bound by their own admission. The dispute in the said case was pertaining to Section 53-A of the Transfer of Property Act, 1882, regarding the possession of the transferee in pursuance to the agreement to sell the land. In Hukma Devi (supra) there was complete denial of the relationship of landlord-tenant. The ejectment order had been passed in the said case and before this Court, it was prayed that opportunity of the payment of rent should be allowed in view of Rakesh Wadhawan v. Jagdamba Industrial Corporation (2002-2) 131 PLR 370 (SC). The said plea was rejected on the ground that the tenant would have successfully delayed the payment of rent by denying the relationship of landlord-tenant and the principle of estoppel would apply. Accordingly, the said judgment would not be applicable in the facts and circumstances of the present case as already a plea has been taken by the petitioner inter se the parties in prior litigation that he was tenant of the premises in question and therefore, he would naturally be obliged to make payment of the provisional rent as assessed by the Rent Controller on 03.03.2012.

Accordingly, this Court is of the opinion that no fault can be found with the well reasoned order passed by the Appellate Authority dated 02.12.2011. Needless to say that any observation made herein are only for the purpose of adjudication of the present revision petition since parties are yet to lead evidence. With the above said observations, the present revision petition stands dismissed.