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2003 DIGILAW 189 (PNJ)

Avtar Singh v. Sardul Singh

2003-01-31

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under sub-section (5) of the Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act) challenges the judgment dated 2.12.2002 passed by the Appellate Authority, Ropar who has affirmed the findings of fact recorded by the Rent Controller, Ropar. The Rent Controller in his judgment dated 1.9.2000 has come to the conclusion that the tenant-petitioner has effected material alterations impairing the value and utility of the demised premises. The personal necessity of the landlord-respondents was also found to be established by the Rent Controller. Therefore, on both these premises, the ejectment of the tenant-petitioner was ordered. 2. The landlord-respondents have filed an ejectment petition under Section 13 of the Act seeking ejectment of the tenant petitioner on the ground that he has effected material alterations which has resulted in impairing the value and utility of the demised premises. The ground of the non-payment of rent and bona fide personal necessity were also taken by the landlord-respondent in the ejectment petition. 3. The ground of non-payment of rent did not survive as valid tender has been made by the tenant-petitioner. However, on both the other grounds, the Rent Controller found the prayer of the landlord-respondents meritorious. On the ground of material alterations, the landlord-respondents adduced evidence of AW-1 Building Clerk of Municipal Council, Ropar who brought on record site plans Exs. A-1 and A-2. AW-2 Kulwant Singh placed on record his report Ex. A-3 and site plan Ex. A-4 regarding condition and position of the property in dispute. One of the landlord-respondents Shingar Singh appeared as AW-3. The tenant-petitioner has examined RW-1 Kulwant Raj son of Khazan Chand, RW-2 Bhupinder Kumar son of Sat Pal and RW-3 Jatinder Nath proved on record Ex. R- 1. The tenant-petitioner appeared as his own witness as RW-4. On appreciation of evidence, the Rent Controller concluded that the tenant- petitioner had included the verandah by raising wall and even encroached upon the property by opening a door on the back side of the shop. The Rent Controller also held that tenant-petitioner had raised construction of 15 feet 9 inches as depicted in site plan Ex. A-4 and that by such acts of the tenant-petitioner, the value and utility of the property has been impaired. 4. The Rent Controller also held that tenant-petitioner had raised construction of 15 feet 9 inches as depicted in site plan Ex. A-4 and that by such acts of the tenant-petitioner, the value and utility of the property has been impaired. 4. On the question of bona fide personal necessity, the Rent Controller held that the landlord-respondents were proved to be having no other property to run their business. Therefore, the tenant-petitioner was ordered to be ejected from the demised premises. 5. On appeal, the Appellate Authority affirmed the findings regarding material alterations and impairing the value and utility of the demised premises. Rejecting the contention of the tenant-petitioner, the Appellate Authority observed as under :- "......The applicants have produced on record a Site Plan Ex. A2 which has been proved by Gopal Krishan Building Clerk of Municipal Committee, who appeared as PW1. He has deposed that the original site plan dated 2.6.1983 which was received by the Municipal Committee from the landlord for construction of this building is Ex. A-1 while it was duly approved by the Municipal Committee and it was sanctioned in the year 1983 and a copy of the same is Ex. A-2. This site plan shows that it was filed by Kedar Nath, the original landlord and on the said disputed land, three shops were constructed by him. The shop in possession of the respondent was also constructed by the said Kedar Nath sanction of this plot and it is evident that there was a Verandah which was 4-1/2 feet wide. However, the present site plan of the shop in occupation of the respondent/appellant has been proved on the file as Ex. A-4 and it is evident from this site plan that the Verandah has been covered by the respondent and has merged it in his shop. It is also further evident that the shutter of the shop which was earlier fixed at points X.Y. has been re-fixed at point A.B." 6. Apart from the above referred alterations, the Appellate Authority referred to other encroachments made by the tenant-petitioner which reads as under :- "Besides the above, the respondent/appellant has also made encroachment on the back portion of the said shop. Apart from the above referred alterations, the Appellate Authority referred to other encroachments made by the tenant-petitioner which reads as under :- "Besides the above, the respondent/appellant has also made encroachment on the back portion of the said shop. After opening the door at point A on the back wall of the shop, the respondent has raised construction with bricks and roof with wooden Balas at point ACDF and he has divided this portion into two parts. The said encroachment and construction of two small rooms has also been done by him without the permission of the landlord and it has also changed the structure of the shop in dispute and it has materially effected the value and utility of the disputed shop." 7. The Appellate Authority then proceeded to consider whether the merging of verandah into the shop or encroachment on the back portion would materially impair the value and utility of the demised premises. the Appellate Authority took the view that the verandah in front of the shop was constructed by the original landlord Kedar Nath who had sold the demised premises to the landlord-respondents on 11.9.1991. The verandah was constructed for the use of public for open air and also to protect the shop from sun and rain from the front portion. The verandah has been closed by the tenant-petitioner without prior permission of the landlord-respondents and that has resulted in impairment of value and utility of the shop. 8. On the issue regarding bona fide personal necessity of the landlord- respondents, the Appellate Authority held that the demised premises is required by them as the shop, which his in their occupation, is owned by the Irrigation Department and they are sought to be ejected from that shop. A letter issued by the SDO Head Works, Sub Division ropar has been produced as Ex. AW-3/1. On the aforementioned basis of the Appellate Authority also upheld the bona fide necessity of the landlord-respondents and ordered ejectment of the tenant-petitioner. 9. Mr. Sarjit Singh, learned counsel for the tenant-petitioner has made two- fold submissions before me. His first submission is that the right of ejectment on the ground of material alterations would not enure to the benefit of the landlord-respondents because it vanished with the sale of demised premises by the earlier landlord on 11.9.1991 to the present landlord- respondents. 9. Mr. Sarjit Singh, learned counsel for the tenant-petitioner has made two- fold submissions before me. His first submission is that the right of ejectment on the ground of material alterations would not enure to the benefit of the landlord-respondents because it vanished with the sale of demised premises by the earlier landlord on 11.9.1991 to the present landlord- respondents. He has further submitted that the landlord-respondents have not given any notice to the tenant-petitioner from September, 1991. In support of his submission, the learned counsel has placed reliance on a Single Bench judgment of Bombay High Court in Shantinath S. Ghongade v. Rajmal Uttamchand Gugale, 1979(1) RCR (Rent) 701 (Bombay) : AIR 1979 Bombay 269. The learned counsel has further submitted that the landlord-respondents have failed to establish that they have vacated the premises occupied by them which belonged to Irrigation Department. According to the learned counsel placing on record merely a latter Ex. AW-3/1 issued by the SDO Head Works, Sub Division, Ropar would not be a sufficient proof of the fact that they needed the demised premises urgently. 10. Having heard the learned counsel, I do not feel persuaded to take a view different than the one taken by the Courts below. The first argument of the learned counsel that a successor-in-interest of the earlier landlord would not be entitled to enjoy the benefit of the provisions concerning ejectment of the tenant-petitioner, would be liable to be rejected because it has not been raised in either of the Courts below. It is not a pure question of law but a mixed question of fact and law because had there been any pleadings by the tenant-petitioner, the landlord-respondents might have produced a copy of the sale deed showing the stipulation to the effect that the tenant-petitioner has effected material alterations or any other relevant fact. Even the Rent Controller would have liked to frame an issue on the basis of such pleadings. 11. Even otherwise this argument in the absence of facts would not come to the rescue of the tenant-petitioner because if the principles implicit in Section 109 of the Transfer of Property Act, 1882 (for brevity, `1882 Act) are applied then the landlord-respondents would possess all the rights in the absence of a contract to the contrary. Section 109 of 1882 Act reads as under :- "109. Rights of lessors transferee. Section 109 of 1882 Act reads as under :- "109. Rights of lessors transferee. - If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him : Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased." 12. The question as to whether the right to eject the tenant-petitioner would survive to the landlord-respondent who is a transferee for a valuable consideration has been answered in the affirmative by the Supreme Court in the case of Vasantkumar Radhakisan Vora v. The Board of Trustees of the Port of Bombay, AIR 1991 SC 14. In this regard the view of their Lordships reads as under :- "It is no doubt true that per se Sec. 109 of T.P. Act does not apply to the facts of this case. It contemplates transfer of lessors right inter vivos. But when right, title and interest in immoveable proper by stand transferred by operation of law, the spirit behind Sec. 109 per force would apply and successor in interest would be entitled to the rights of the predecessor. This is what the learned single Judge of the High Court in the impugned judgment had held and we approve of the view as correct. This is what the learned single Judge of the High Court in the impugned judgment had held and we approve of the view as correct. We, accordingly, hold that the notice terminating the tenancy of Vasant Kumar would tenure to the benefit of the respondent and it could be availed of the respondent to lay the suit for ejectment." Similar view has been followed by the Supreme Court in Sk. Sattar Sk. Mohd. Choudhari v. Gandappa Amabadas Bukate, 1997(1) RCR (Rent) 148 (SC) : (1996)6 SCC 373. In view of the above enunciation of law, I have no hesitation in rejecting the first submission made by the learned counsel. 13 The other submission made by learned counsel for the tenant-petitioner that the ground of personal necessity has not been proved, would also not required any serious consideration in view of the fact that there is adequate evidence on record showing that the landlord-respondents are likely to be evicted from the premises occupied by them which belonged to Irrigation Department. There is no requirement of law that a landlord must first come on the road on the basis of an order of eviction and only then he could apply for ejectment of his tenant from the demised premises. It is thus obvious on the basis of letter Ex. AW-3/1 written by the SDO Head Works, Sub Division, Ropar that the necessity of the landlord-respondents is bona fide. Therefore, the second submission made by the learned counsel also lacks merit. 14. The judgment of Bombay High Court in Shantinath S. Ghongades case (supra) relied upon by the learned counsel would not require any serious examination in view of the fact that in Shantinath S. Ghongades case (supra) the Bombay High Court was not considering the facts of the rights of successor landlord for the first time. Moreover, the principles implicit in Section 109 of 1882 Act were not considered. Still further, the judgment in Vasantkumar Radhakisan Voras case (supra) was not available. Therefore, the view of Bombay High Court has not impressed me to hold that the successor landlord would have no cause of action in the demised premises where the tenant has made material alterations before the successor landlord acquired the proprietary rights. 15. For the reasons stated above, this petition fails and the same is dismissed.