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2007 DIGILAW 497 (HP)

Saroj Behl v. John Chung

2007-12-14

DEEPAK GUPTA

body2007
JUDGMENT : Deepak Gupta, J. 1. This civil revision under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act) is directed against the order passed by the learned Additional District Judge, Shimla (Appellate Authority) in Civil Miscellaneous Appeal No. 11-S/14 of 2001, dated 26th April, 2003, whereby he has partly set aside the order of the learned Rent Controller dated 30th November, 2000. 2. The undisputed facts are that the petitioner is a tenant in the demised premises i.e. 23, Middle Bazaar, Shimla. The premises consist of one big room in which the tenant is running her business. The respondents claim themselves to be the landlords and owners of the building for which an eviction petition on the ground that the tenant had, without consent of the landlords, changed the user of the shop from that of electric goods to a dhaba; it was also urged that the tenant had done substantial additions and alteration in the demised premises which had materially impaired the value and utility of the building; lastly it was alleged that the respondent is in arrears of rent w.e.f. 1.10.1993 onwards. 3. The tenant contested the petition and the preliminary objection raised was that the respondents are neither owners nor the landlords of the demised premises. According to the tenant she had rented the said premises from the previous owners. The tenant denied the case of the landlords that they had purchased the building in question from the previous owners. It was, however, admitted that for some period, the tenant had paid rent to the respondents without prejudice to her rights to object to their status as landlords. 4. The learned Rent Controller came to the conclusion that there was no relationship of landlord and tenant between the parties. He also decided the other issues against the landlords and dismissed the petition. Appeal was filed by the landlords before the Appellate Authority who has come to the conclusion that the respondents are landlords within the meaning of the Act and, therefore were entitled to file the petition. The petition was only allowed on the ground of arrears of rent, but was rejected on other grounds. Aggrieved by the said order the tenant has filed the present revision petition. 5. I have heard Mr. Bhupender Gupta, learned Senior Advocate, for the petitioner and Mr. The petition was only allowed on the ground of arrears of rent, but was rejected on other grounds. Aggrieved by the said order the tenant has filed the present revision petition. 5. I have heard Mr. Bhupender Gupta, learned Senior Advocate, for the petitioner and Mr. Subhash Punshi, learned counsel for the respondents. 6. Admittedly the building in question was previously owned by Shiv Mohan Sharma and others. 7. Para 19 of the eviction petition filed by the landlords reads as follows :- “The petitioners have purchased the entire four storeyed building bearing No. 51, The Mall, Shimla and 23, The Mall Shimla (including the tenanted premises) from its previous owners – Shri Shiv Mohan Sharma and others. They have paid the full price and got the possession of 51, The Mall, Shimla (as three storeys of the said building are with the Landlords-Petitioners) and symbolic possession of 23, Middle Bazar, Shimla, but the registration of the Sale Deed couldn’t be effected, due to the ban imposed by the H.P. Government. The Petitioners are paying the Municipal Taxes etc. qua the said four storeyed Building, with effect from 1.3.1991. The petitioners are otherwise also the Landlords qua the said premises, duly entitled to receive rent from the Respondent-Tenant. The respondent has been paying rent to the petitioners, with effect from 1.3.1991 and have already paid rent upto Sept., 1993.” 8. It is thus clear that when the petition was filed on 10.11.1993 no sale deed had been executed in favour of the respondents and they had filed the petition only on the basis of the agreement to sell under which they were entitled to receive rent. The tenant had alleged that there is no valid transfer and since the sale deed had not been executed, the respondents cannot be said to be landlords of the building. The agreement to sell in question has been proved on record as Ex.PW-3/B. Vide this agreement S/Shri Hari Mohan, Shiv Mohan, Jag Mohan, Radha Mohan, Smt. Krishna Sharma, Narinder Mohan, Shashi Mohan, Mrs. Seema, Smt. Shakuntla Prabhakar, Arun Prabhakar, Tarun Prabhakar, Dinesh Prabhakar, Rakesh Prabhakar, Sanjay Prabhakar and Mrs. Renu had agreed to sell the property known as shop No. 51, The Mall, Shimla including the demised premises, i.e. Shop No. 23, Middle Bazaar, Shimla to Mrs. Seema, Smt. Shakuntla Prabhakar, Arun Prabhakar, Tarun Prabhakar, Dinesh Prabhakar, Rakesh Prabhakar, Sanjay Prabhakar and Mrs. Renu had agreed to sell the property known as shop No. 51, The Mall, Shimla including the demised premises, i.e. Shop No. 23, Middle Bazaar, Shimla to Mrs. Chiu Sui Yee, wife of Chung Hun Far and her son John Chung for a total consideration of Rs. 1,92,000/-. Clause (vi) of the agreement to sell entitled the purchaser to receive the rent from the tenant, Smt. Saroj Behl in respect of the property in her possession. The entire amount of sale consideration was paid to the owners by the purchasers. It was, however, mentioned that the sale deed cannot be got registered due to ban on purchase of property in Himachal Pradesh and the same would be got registered thereafter. During the pendency of the petition, the sale deed has been executed in favour of the purchasers by the vendors vide sale deed dated 21st day of August, 1996, registered with the Registrar Delhi on the same date. On behalf of the purchasers the sale deed has been signed by their general attorney, Francis Chung, who is also one of the owners of Chiu Sui Yee and John Chung. Copy of the sale deed is Ex. PW-5/A. 9. It has been argued by Mr. Bhupender Gupta, learned Senior Advocate, that there has not been any attornment on behalf of the tenant. He submits that even in reply to the notice, Ex.RW-8/B, his clients had not admitted the ownership of the respondents and they had only agreed to pay the rent in case the landlords give documentary proof of their ownership. The rent was paid subject to this stipulation. It has been urged that the agreement to sell was not a concluded contract and that during the course of hearing of the case a new case has been made out in favour of the landlords. It has lastly been urged that one of the vendors, Shashi Mohan, died in an accident on 18.8.1994, as is apparent from a reading of the copy of the FIR, Ex.RW-1/A in which it is recorded that one Shashi Prabhakar died in the accident. 10. Reliance on behalf of the petitioner is placed on A.V.G.P. Chettiar and Sons Vs. T.Palaniswamy Gounder 2002(1) RCR (Rent) wherein the Apex Court held as follows :- “39. 10. Reliance on behalf of the petitioner is placed on A.V.G.P. Chettiar and Sons Vs. T.Palaniswamy Gounder 2002(1) RCR (Rent) wherein the Apex Court held as follows :- “39. The High Court’s reasoning was far removed from the pleadings of the respondent. The respondent had claimed that Gowthaman was the absolute owner of the suit property and that such absolute interest has been purchased by the respondent. Given this pleading the respondent could not be allowed to set up a different case and take shelter behind the definition of “landlord” in the Act. The definition of ‘landlord’ is an enabling provision in the sense that it enables persons who are not the owners to ask for eviction under the Act. But it does not mean that a person who has claimed to be the landlord qua owner can jettison his case as pleaded in his eviction petition and establish his claim on the basis that he was otherwise entitled to claim as landlord of the suit premises. As held in M/s. Trojan and Co. Vs. RM N.N. Nagappa Chettiar, AIR 1953 SC 235 P. 22: “It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found”. 11. Reliance is also placed on Sambhunath Mitra and others Vs. Khaitan Consultant Ltd. and others AIR 2005 Calcutta 281 wherein the Calcutta High Court held that despite payment of rent and notwithstanding attornment tenant can always contend that plaintiff who claims to be landlord has not really derived title from the original inductor. Lastly, reliance is placed on a judgment of this court reported in Naresh Kumar Sharma Vs. Roshan Lal 1998 (2) Current Law Journal (HP) 205. 12. On the other hand, Mr. Punshi submits that the tenant by paying the rent has accepted the respondents as the landlords and even otherwise is entitled to payment of rent. He has placed reliance on a judgment of Madras High Court reported in Mrs. Yashoda Raju Vs. A. Kuselan 2005(2) RCR 253 wherein it has been held that even a person who is not the owner can file an eviction petition as a landlord. Reliance is also placed on a judgment of Madhya Pradesh High Court reported in Pandharinath Vs. He has placed reliance on a judgment of Madras High Court reported in Mrs. Yashoda Raju Vs. A. Kuselan 2005(2) RCR 253 wherein it has been held that even a person who is not the owner can file an eviction petition as a landlord. Reliance is also placed on a judgment of Madhya Pradesh High Court reported in Pandharinath Vs. Rukminibai 2006(1) RCR 197 wherein also it has been held that it is not necessary that the landlord should also be the owner of the building. 13. I shall first deal with the question as to whether the petitioners had attorned in favour of the respondents-landlords. No doubt, the respondents had paid some rent prior to 1993 to the landlords. However, even while paying the rent they had asked the landlords to furnish documentary proof of having become owners. The rent was paid subject to this stipulation and, therefore, there was no voluntary attornment by the tenant. 14. To appreciate the rival contentions of the parties on the question as to whether the respondents are the landlords qua the petitioner, it would be apposite to refer to the definition of the landlord in the Act. Under Section 2(d) of the Act “landlord” is defined as follows:- “landlord” means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, a specified landlord, and every person from time to time deriving title under a landlord.” 15. A bare perusal of the definition of the landlord clearly shows that any person who is entitled to receive rent in respect of any rental building or land whether on his own account or on behalf of any other person is a landlord. 16. In the present case the petition was filed on the basis of the agreement to sell. The agreement to sell contained clause (vi) which clearly entitles the respondents to collect the rent from the tenant. A perusal of the agreement to sell also clearly shows that the entire sale consideration was paid to the previous owners. 16. In the present case the petition was filed on the basis of the agreement to sell. The agreement to sell contained clause (vi) which clearly entitles the respondents to collect the rent from the tenant. A perusal of the agreement to sell also clearly shows that the entire sale consideration was paid to the previous owners. There were a large number of previous owners and, therefore, they may have executed power of attorney in favour of Francis Chung. It has been strenuously contended that one of the land owners had died when the sale deed was executed. Firstly, this fact is not clearly proved on record. Whether the person Shashi Prabhakar, referred to in the FIR, Ex. RW-1/A, is the same person, referred to as Shashi Mohan in the agreement to sell, is not clear. Even assuming that he is the same person, the sale deed at the most would be invalid qua his share. This can be challenged by his legal representatives. The petition has been filed on the basis of the agreement to sell. Under the said agreement the respondents are definitely entitled to receive rent from the tenant. They are, therefore, clearly the landlords qua the petition-ertenant. The petitioner has admittedly not paid rent for the period in question w.e.f. 1.10.1993 and the learned lower Appellate Authority rightly ordered her eviction on this ground. This order calls no interference. 17. It is a well established principle of law that the question of title cannot be decided in rent proceedings. Therefore, the observations made by me are only in the context of holding that the respondents are the landlords of the petitioner. The question whether they have obtained complete and full title in respect of the property in question is a question which cannot be decided in the present proceedings under the Rent Act. 18. In view of the above discussion I find no merit in the present revision petition which is accordingly dismissed.