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2015 DIGILAW 3092 (ALL)

Indra Jeet Singh v. Km. Indira Gupta

2015-09-29

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta,J. 1. The plaintiff-respondent instituted SCC Suit No. 40 of 2010 against the second respondent Hriday Narain Upadhyaya (Defendant no. 1) and the petitioner (Defendant no. 2) for recovery of arrears of rent and for ejectment. According to the plaint case, defendant no. 1 was tenant of a residential building situated at Santosh Nagar, Bareilly, bearing Municipal No. 1578 (Old No. 668) on the basis of an allotment in his favour. The plaintiff-respondent claimed to have purchased the demised premises by means of a registered sale deed dated 20.7.2006 from Smt Kamini Agarwal, the owner and landlord of the premises. The second defendant, the petitioner herein, was stated to have been inducted as a sub-tenant, without the consent of the plaintiff. The relief for ejectment was claimed on the ground that there was default in payment of rent and subletting, without the permission of the landlord. 2. The first defendant, who was the tenant-in-chief, did not contest the proceedings. A written statement was filed by the petitioner admitting that the demised premises was allotted to the first defendant. He further admitted in the written statement that he is occupying the demised premises, but it was contended that his status is not that of sub-tenant, but as a care taker on behalf of the tenant-in-chief. It was further pleaded that there does not exist relationship of landlord and tenant between the parties and the suit for ejectment, at the instance of the plaintiff-respondent, was not maintainable. 3. The trial court framed various points from determination. While deciding point no.1 regarding relationship of the landlord and tenant between the parties, the trial court primarily relied on the statement of the petitioner in holding that there existed relationship of landlord and tenant between plaintiff-respondent and defendant no. 1. 3. The trial court framed various points from determination. While deciding point no.1 regarding relationship of the landlord and tenant between the parties, the trial court primarily relied on the statement of the petitioner in holding that there existed relationship of landlord and tenant between plaintiff-respondent and defendant no. 1. The relevant part of the finding of the trial court is as under : - ^^tc fd izfrijh{kk esa Mh0MCyw0&1 bUnjthr flag us ;g Lohdkj fd;k gS fd fookfnr edku bUnzk xqIrk us dkfeuh ls [kjhnk gSA eq>s ;g ckr ekywe gS fd dkfeuh vxzoky bl fookfnr edku dh ekfyd FkhA bl lk{kh us viuh izfrijh{kk esa ;g Hkh Lohdkj fd;k gS fd dkfeuh us tks cSukek bUnzk xqIrk ds gd esa fd;k gS og eSus is dksbZ ru[okg ugha nsrs gS cfYd eSus âzn;ujk;u dks 90 gtkj : i;s nsdj dCtk fy;k gS dCtk ysus dk dkxt Hkh fy[kk x;k Fkk fdjk;s ds ckjs esa dqN ugha fy[kk x;k fookfnr edku bUnzk xqIrk us dkfeuh ls [kjhnk gSA âzn;ujk;u 50@& : i;s ekgokj ds fdjk;snkj FksA eq>s ;g ckr ekywe gS fd dkfeuh vxzoky bl fookfnr edku dh ekfyd FkhA âzn;ujk;u dks ;g edku ,ykV gqvk FkkA eq>s ugha ekywe fd ân;ujk;u us dkfeuh dks dc rd dk fdjk;k fn;k FkkA eSus 90 gtkj : i;s vnk djus ds ckn u rks âzn;ujk;u dks u dkfeuh dks gh fdjk;k fn;kA ân;ujk;u eq>s dCtk nsdj pys x;s Fks vkSj dCts ds cnys eSaus 90 gtkj : i;s fn;s FksA eSusa bUnzk xqIrk ls f'kdeh fdjk;snkj gksus dh dksbZ ijeh'ku ugha yh FkhA** 4. The trial court further placing reliance on the statement of the petitioner observed as under: - ^^izfroknh la0&2 }kjk ;g Lohdkj fd;k x;k gS fd okfnuh oknxzLr edku 20 tqykbZ lu~ 2005 ds cSukek ls bUnzk xqIrk ekfyd gSa vkSj izfroknh ua0&1 budk fdjk;snkj gSA** 5. After considering the aforesaid admissions made by the petitioner, the trial court repelled the contention of the petitioner that there was no relationship of landlord and tenant between the plaintiff-respondent and the first defendant. 6. The trial court, while deciding issue no. 2 as to whether the petitioner was inducted as a sub-tenant or not or is occupying the premises as the care taker, returned a categorical finding to the effect that the status of the petitioner is that of a sub-tenant. While deciding issue no. 6. The trial court, while deciding issue no. 2 as to whether the petitioner was inducted as a sub-tenant or not or is occupying the premises as the care taker, returned a categorical finding to the effect that the status of the petitioner is that of a sub-tenant. While deciding issue no. 3, it held that notice dated 7.10. 2009 terminating the tenancy is legal and valid and since there was default in payment of rent and the premises has been sublet and consequently, the tenant has become liable to ejectment. Accordingly, the suit was decreed for recovery of arrears of rent and for ejectment. 7. Aggrieved by the decree passed by the trial court dated 31.8.2013, the petitioner preferred SSC Revision No. 19 of 2013, which has been dismissed by judgment dated 10.8.2015. It appears that no revision was filed by the first defendant, the tenant-in-chief. However, it is pointed out by learned counsel for the petitioner that an application for setting aside the decree passed by the trial court is pending at his instance before the trial court. 8. Assailing the judgment and decree passed by the trial court as well as the revisional court, the petitioner, who has been held to be a sub-tenant, has approached this Court by way of instant petition under Article 227 of the Constitution. 9. Learned counsel for the petitioner submitted that the status of the petitioner was that of a care taker and not a sub-tenant and that the first respondent was not entitled to maintain a suit for ejectment, as there does not exit any relationship of landlord and tenant between the parties. It is urged that one of the co-sharers Smt Kusum Agarwal has instituted Original Suit no. 765 of 2015 against the other co-sharers including Kamini Agarwal for partition and separation of her 1/16 share in the joint properties and thus, it is urged that the sale deed executed by Kamini Agarwal was itself illegal and will not confer any right in favour of the plaintiff-respondent. It is further urged that Kamini Agarwal has filed a suit for cancellation of sale deed dated 20.7.2006, against the plaintiff-respondent and thus no reliance can be placed on the sale deed obtained by the plaintiff-respondent in her favour. 10. It is further urged that Kamini Agarwal has filed a suit for cancellation of sale deed dated 20.7.2006, against the plaintiff-respondent and thus no reliance can be placed on the sale deed obtained by the plaintiff-respondent in her favour. 10. Thus, the first question for consideration is whether there exists a relationship of landlord and tenant between the plaintiff-respondent and the first defendant and whether suit filed by the plaintiff-respondent for recovery of arrears of rent and for ejectment was maintainable at her instance or not. 11. As noted by the trial court in its judgment, the petitioner, who was examined as D.W. 1, admitted in his cross-examination that Kamini Agarwal was the owner of the disputed house. He further admitted that he is aware about the sale deed executed by Kamini Agarwal in favour of the plaintiff-respondent. It has also not been disputed by the petitioner that the house in dispute was allotted to the first defendant and he was occupying the same as the tenant-in-chief. Under Section 109 of the Transfer of Property Act, 1882, the attorment takes place by operation of law in case the demised premises is transferred during the subsistence of tenancy. It may be another matter that the liability to pay rent starts only after the tenant is apprised of the transfer. In the instant case, even the factum regarding transfer of the demised premises was in the knowledge of the petitioner. The trial court has further noted that the petitioner in his cross-examination has admitted that the plaintiff-respondent, in pursuance of the sale deed dated 20.7.2006 is the owner of the demised premises and the first defendant her tenant. In view of these admissions, no exception can be taken to the findings recorded by the courts below regarding existence of relationship of landlord and tenant between the plaintiff-respondent and the first defendant. The suit instituted by the plaintiff respondent for recovery of arrears of rent and for ejectment was thus perfectly maintainable. 12. The mere fact that one of the co-sharers has instituted a suit for partition and separate possession of the ancestral properties is not sufficient to doubt the title of the plaintiff-respondent being the owner and landlord of the demised premises. Likewise, mere institution of a suit by Smt Kamini Agarwal seeking cancellation of the sale deed is not sufficient to doubt the title of the plaintiff-respondent. Likewise, mere institution of a suit by Smt Kamini Agarwal seeking cancellation of the sale deed is not sufficient to doubt the title of the plaintiff-respondent. Further D.W. 1 in his cross-examination admitted that the suit filed by Smt Kamini Agarwal stands dismissed. In view of the above, it is difficult to accept the contention of the petitioner that the sale deed in favour of the plaintiff-respondent can not be relied upon in holding the plaintiff-respondent to be the landlord of the premises. 13. It is now to be seen as to in what capacity, the petitioner was occupying the demised premises. The trial court while returning finding on issue no 2 has again placed reliance on the statement of the petitioner wherein, he admitted that he was permitted to occupy the demised premises by the original tenant, Hriday Narain Upadhyaya after accepting Rs 90,000/- from him. It is not in dispute that the demised premises is now in exclusive possession of the petitioner. Even as per the contract between the petitioner and the first defendant, the original tenant had absolved himself from the liability to pay rent and the same has been taken over by the petitioner. Under Section 25 of U.P. Act 13 of 1972, no tenant is entitled to sublet the whole of the building under his tenancy. Only a part of the building can be sublet and that too with the permission in writing of landlord and the District Magistrate. The explanation to Sub-Section (2) of Section 25 stipulates that where the tenant ceases, within the meaning of clause (b) of sub-section 1 or sub-section (2) of Section 12, to occupy the building or a part thereof, he shall be deemed to have sublet that part of the building. Under Section 12(1)(b), a tenant of the building shall be deemed to have ceased to the occupy the building or a part thereof, if he had permitted it to be occupied by any person who is not a member of his family. Concededly, the petitioner is not a member of the family of the second respondent. 14. In such view of the matter, possession of the petitioner would be deemed to be that of a sub-tenant within the meaning of the Act. Concededly, the petitioner is not a member of the family of the second respondent. 14. In such view of the matter, possession of the petitioner would be deemed to be that of a sub-tenant within the meaning of the Act. Thus, this Court does not find any illegality in the view taken in this regard by the trial court and which also stands affirmed by the revisional court. 15. No other submission has been made by learned counsel for the petitioner. 16. The petition lacks merit and is dismissed.