Vishwa Nath vs Khalifa Giri and Others

H.S. Brar, J.—Khalifa Giri-respondent No. 1 had filed a suit for ejectment of defendants Tribeni Parshad vishwanath and Uttam Chand, from a plot including four rooms standing thereon and open space lying in front thereof, fully described in the heading of the plaint.

The facts, briefly stated, are that plaintiff-respondent No. 1 Khalifa Giri as owner of the suit land leased out the same to Uttam Chand aforesaid for building residential quarters. The lease commenced on October 19, 1953 and the yearly rent was Rs.9/-. According to the lease deed, Uttam Chand could remain tenant over the suit land up to October 19, 1973. Uttam Chand built four residential rooms in the land and initially occupied the same himself. Subsequently, he sublet the same to different persons and ultimately to defendants Tribeni Parshad and Vishwanath, named in the plaint. The subletting was not with the consent of the plaintiff-respondent No. 1. After October 19, 1973, the lease in favour of defendant No. 3 came to an end and the plaintiff-respondent No. 1 became entitled to eject him. The rights of defendants 1 and 2 who were sub-tenants of defendant No. 3 described in the plaint are also coterminous with the rights of defendant No. 3 and so, the plaintiff was entitled to eject all the defendants. The plaintiff-respondent No. 1 had purchased the constructions raised by Uttam Chand from him and so, he was now owner of the entire disputed property. Tribeni Parshad and Vishwanath aforesaid on demand refused to vacate the disputed premises although Uttam Chand agreed to the same. Ultimately, the suit was filed by respondent No. 1 Khalifa Giri.

Uttam Chand aforesaid in his written statement admitted the allegations '' of the plaintiff and prayed that the suit be decreed. Tribeni Parshad and Vishwanath in their joint written statement controverted the allegations in the plaint and inter alia pleaded that they were not aware of the plaintiffs ownership over the disputed property, the answering defendants themselves constructed the rooms to question and were residing there for the last more than twenty years. Subletting of the premises to them'' was also denied. It was pleaded alternatively that even if the lease in favour of defendant No. 3 Uttam Chand war proved, defendants 1 and 2 were tenants under the plaintiff. It was further pleaded that the Civil Court had no jurisdiction to try the present suit in view of the special enactment, that is, Rent Restriction Act. Various other defences'' that the suit had not been properly valued, that the suit was not maintainable in the present form, the suit had not been properly verified and that it was collusive between the plaintiff and defendant No. 3, were also taken.

Defendant No. 1, that is, Tribeni Parshad during the pendency of the suit compromised the case with the plaintiff-respondent No. 1 vide Compromise peed. Exhibit PA. His statement was also recorded by the Court on January 19, 1977. According to to Compromise, the suit was to be decreed against defendant. No. 1. He was in possession of half portion of the disputed property which '' he agreed to vacate under the Compromise. Defendant No. 2 Vishwanath who is the appellant now in this appeal, contested the suit.

On the pleadings of the parties, the following Issues were framed:-

(1) Whether the defendant No. 3 sublet the demised property with the consent of the plaintiff ? OPD.

(2) If issue No. 1 is affirmed, whether this Court has jurisdiction to try the present suit ? OPP.

(3) whether the suit is collusive as alleged ? OPD.

(4) Whether the plaintiff has no cause of action ? OPP.

(5) Whether the suit is properly valued for the purpose of court-fee and jurisdiction? OPP.

(6) Whether the suit is not maintainable in the present form ? OPD.

(7) Whether the suit is not properly verified as alleged ? OPP.

(8) Relief.

Defendant No. 2 in the suit, that is the present appellant, during the pendency of the suit applied for framing of an Additional Issue. Issue No. 1 was re-framed as under :-

"Whether the plaintiff is owner of the disputed property and leased opt the same to defendant No. 3 ?" OPP.

The learned subordinate Judge decided Issue No. 1 in favour of the plaintiff-respondent No. 1, holding that he was owner of the disputed property and he had leased out the suit land to defendant No. 3.

On Issue No. 2, the learned trial Court found that the civil Court had got jurisdiction to try the suit and, thus, the Issue was decided in favour of the plaintiff and against the defendant.

Issues Nos. 4, 5, 6 and 7 were also decided in favour of the plaintiff and against the defendants and ultimately under Issue No. 8 plaintiff-respondent No. 1''s suit was decreed for ejectment of the defendants from the disputed property.

In appeal before the Additional District Judge, Ambala, Vishwa Nath failed. Thus, this Regular Second Appeal.

The learned counsel for the appellant contends that Vishwa Nath appellant was the owner of the land in question and he had built the rooms thereon. There was, thus, no question of ejectment from the land. This halfhearted argument of the learned counsel has no basis, as there is not an iota of evidence showing the ownership of Vishwa Nath appellant of the land-in question. Defendants 1 and 2 in the suit had rather claimed their rights under defendant No. 3 and defendant No. 3 had admitted the plaintiff-respondent to be owner of the disputed property. The appellant has rather taken a contradictory plea. On the one hand, he says that he is the owner of the disputed property (though this plea had not been taken up in the written statement). On the other hand, in his statement at the trial he had specifically stated that he had taken the suit land on rent from Uttam Chand defendant in the suit. It is perhaps after sensing all this factual position that the appellant cannot be proved to be the owner of the land; his learned counsel has based his plea in this Regular Second Appeal mainly on the ground that the suit is not maintainable, as after coming into force of the Haryana Urban (Control of Rent and Eviction) Act, 1973, only the Rent Controller could evict the tenant. He, thus, contends that as the appellant was a tenant, may be a sub-tenant under Uttam Chand, he could not be evicted in a civil suit. Rather he could be evicted under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Act).

The learned counsel for the appellant has pressed into service an authority of this Court to substantiate his contention, viz. Suresh Kumar v. Bhim Sain, (1978) 80 P.L.R. 751 . This authority is of no help to the counsel for the appellant, as in that case the direct interpretation of statute was not involved. Moreover, the authority cited in Bai Chanchal and Others Vs. Syed Jalaluddin and Others, was not brought to the notice of the learned Judge.

The learned counsel for the appellant states that as the land leased by Khalifa Giri to respondent Uttam Chand falls under the definition of ''rented land'' u/s 2(f) of the Act, he could be evicted only by the Rent Controller, and, thus, this appeal is liable to be accepted and the suit of respondent Khalifa Giri was liable to be dismissed as not maintainable.

I am unable to find any force in the contention of the learned counsel as the land leased out by respondent Khalifa Giri does not fall under the definition of ''rented land'' and the point in issue is not res integra. It has been so decided by the Supreme Court as late as in the year 1970 in Bai Chanchal and Others Vs. Syed Jalaluddin and Others, .

For facility of reference, Section 2(f)'' of the Act which defines ''rented land'', is reproduced as under :

"rented land" means any land let separately for the purpose of being used principally for business or trade".

It is not disputed that the land in question was leased out to defendant No. 3 Uttam Chand for building residential quarters thereon and the lease commenced on October 19, 1953. The rent reserved was Rs.9/- per year. It was further agreed that Uttam Chand would restore possession of the land to the plaintiff-respondent immediately on expiry of the date, October 18, 1973. From a reading of the terms of the lease, it is difficult to reach a conclusion that the lease was taken principally for the purpose of using the land for business or trade. Rather, the expression "premises as defined in Section 4(2)(b) of the Bombay Rent Restriction Act, 1939 was interpreted by the Supreme Court in Bai Chanchal''s case (Supra) as meaning:

"any land let separately for the purpose of being used principally for business or trade."

The language of Section 4(2)(b) of the Bombay Act is rather peri materia with Section 2(f) of the Act. Relevant portion of the judgment of the Supreme Court reads as under:

"Reference in this connection was also made to the terms of the lease of 1895, but we are unable to hold that it establishes the case of the appellants that the lease was taken principally for the purpose of Using the land for business or trade. All that the lease mentions is that it is for constructing houses and, at a later stage, there is a mention that "in the said fields, the lessees could construct houses in any manner or use it in any manner". The other parts of the lease, on which reliance has been placed are as follows :-

"1. On the land of those fields we can build houses in any manner and we will receive income thereof and you will not raise any dispute or obstruction in respect thereof. We can spend any amount on the construction of those houses which we will not demand from you for whatever reason nor we will have the right to deduct from rent payable to you.

(2) If any houses are constructed thereon, we will remove the super-structures. If we do not remove the structures then you will be the owners of the said structures. If you take them, then we and our heirs and representatives will not object."

We are unable to find even in these quotations from the lease any mention that the land is going to be used principally for the purpose of business or trade. The lease does mention that it was being, taken for construction houses. There was no mention at all, however,) of the manner in which the constructed houses were to be utilised. Further, there is a clear option given to the lessees that they could use the land in any manner if they did not construct any houses. These are terms on the basis of which it cannot be said that the land was being let out for business purposes.

The submission of counsel for the appellants was that, if the purpose was to construct houses and let them out on rent, that would constitute the use of the land for the purpose of business inasmuch as the lessees would be earning income from letting out those houses. We are unable to accept this submission, because we do not think that the word "business" or "trade" used in the definition of "premises" in Section 4(2)(b) of the Act comprehends within it a lease which is merely for constructing houses. Learned counsel cited before us a number of decisions of Indian and English Courts, including decisions of the Privy Council and this Court, in which scope of the word "business" was interpreted. That interpretation was given in connection with the word "business" as used either in Income Tax law or in the terms of a covenant or the Companies Act, etc. We do not consider that if will be at all profitable to refer to them when interpreting the word "business" or "trade" as used in Section 4(2)(b) of the Act, because . none of those interpretation will cover a case similar to the one before us, where the lease was merely a permissive one giving a right to the lessees to construct houses and let them out or to use the land in any manner. When the purpose of the lease was expressed in this way, it is impossible to hold that the principal use, to which the land was to be put by the lessees, was business or trade. As a consequence of this interpretation, it has to be held that the Act was not applicable to the lease of 1895 and, therefore, no question arises of the decree of 8th July, 1946 being invalid on the ground of contravening Section 11(1) of the Act."

In another decision of this Court in Mohinder Kumar v. Narinder Kumar and Ors. (1986-2) 90 P.L.R. 43, it has been held that if the vacant land is let '' out for any other purpose than the business or trade, then the Rent Controller under the Act will have no jurisdiction to pass any eviction order and the civil Court will have jurisdiction to decide the matter.

In view of my detailed discussion above, I do not find any force in this appeal which is dismissed. The judgment and decree of the trial Court are affirmed.

In the circumstances of the case, however, there is no order as to costs.