IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5678/2011 [ENTITY] vs. Appellate Rent Tribunal, Jaipur & Anr. Date of order : 28th February, 2013. HON'BLE MR.JUSTICE [ENTITY] Shri [ENTITY] with Shri [ENTITY] ) for the petitioner. Shri [ENTITY] for the respondents.
REPORTABLE This writ petition has been filed by petitioner-[ENTITY] challenging the judgement of Rent Appellate Tribunal dated 8.3.2011 and seeking restoration of the order of the Rent Tribunal dated 7.10.2010. The Rent Tribunal in the first order allowed the eviction petition filed by the petitioner-landlord under [SECTION] of the [ACT] and directed the respondent-tenant to vacate the flat No.4/476 SF, Jawahar Nagar, Jaipur and further directed that the tenant shall be liable to pay a sum of Rs.1,00,800 as arrears and Rs.2,800/- as mesne profit. If the tenant fails to vacate the premises within three months, the petitioner would be entitled to charge a sum of Rs.5,600 per month. The respondent-tenant filed appeal before the Appellate Rent Tribunal, which set aside the judgement of the Rent Tribunal and dismissed the eviction petition filed by the petitioner.
The eviction petition was filed by the petitioner on the ground contained in [SECTION] of the [ACT] which entitles a senior citizen to recover immediate possession on such ground, provided the petition is filed after expiry of three years from the date of letting out the premises. The explanation to [SECTION] provides that for the purpose of this Section the expression landlord shall mean the owner of the residential premises. Second ground on which the petition for eviction was filed was that of default by the respondent-tenant in not paying the rent for more than four months as per [SECTION] of the Act. Third ground was of making material alterations in the premises, which is likely to diminish its value with reference to [SECTION]. Fourth and last ground with reference to [SECTION] was that the respondent-tenant denied the title of the petitioner as landlord.
The respondent tenant contested the petition and submitted that he was never put in possession of the disputed flat as a tenant. He acquired possession of the premises of the petitioner in April, 1985, when an oral agreement took place between the petitioner and the respondent on 9.6.1985 according to which the petitioner agreed to sell the aforesaid flat to the respondent for a consideration of Rs.90,000 and the respondent paid to him a sum of Rs.21,000 as advance in the presence of one Pd[ENTITY]. The petitioner joined service of the LIC as Development Officer in April, 2001. The respondent vacated other rented premises and started residing in the aforesaid flat with his family and continues to reside. The petitioner demanded from the respondent a sum of Rs.50,000. The respondent sent the demand draft bearing no.556983 dated 27.11.1999 to the petitioner at Jodhpur. The respondent obtained a receipt in lieu thereof on photo copy thereof. Even then the petitioner did not get the sale deed registered. The respondent denied the facts that the house was let out to him on the rental of Rs.1,300 per month.
Shri [ENTITY], learned counsel for the petitioner submits that in 1995, the house was let out to the respondents on monthly rent of Rs.1,100, which rent was increased to Rs.2,800 in the year 1999. Initially, the respondent paid the rent, but thereafter he stopped making payment of rent despite repeated demands by the petitioner. When the petitioner pressurised for vacating the premises, the respondent sent the earlier outstanding amount of rent by demand draft of Rs.50,000 in December, 2002, which included the rent upto March, 2003 and did not pay any rent thereafter. Petitioner served upon the respondent notices on 25.4.2006 and 7.4.2006 which were returned with the remarks of non-service on the respondent. The petitioner is a senior citizen of 77 years and therefore is entitled to recover immediate possession in view of [SECTION] of the Act of 2001.
Shri [ENTITY], learned counsel for the petitioner has argued that the judgement passed by the Rent Appellate Tribunal is per se contrary to law and is liable to be quashed and set aside. Petitioner retired from service of RSEB on 1.8.1983. He is therefore a senior citizen within the meaning of [SECTION] of the Act of 2001, according to which a person who has attained the age of 65 years or more is a senior citizen. [SECTION] of the Act of 2001 has conferred a right upon such senior citizen to get immediate recovery of his let out premises subject to only one rider that a minimum period of three years should have elapsed from the date of letting out the premises. The landlord within the meaning of explanation to [SECTION] has been defined to be owner of residential premises. In the present case, petitioner happens to be owner and therefore he is entitled to immediate recovery of the possession. Stand of the respondent that he in not a tenant of the petitioner, but he has purchased the property from the petitioner as per oral agreement dated 9.6.1985 is wholly false as no such oral agreement took place. The alleged payment of Rs.21,000 at the time of oral agreement has also not been received by petitioner as advance and no receipt thereof was given, but that was against the outstanding rent upto March, 2003. The initially agreed rent was Rs.1,100 per month was later enhanced to Rs.2,800 per month. The respondent have apart from ground of default is also liable to be evicted on the ground of denial of title of the petitioner-landlord.
Shri [ENTITY], learned counsel for the petitioner has relied on the judgement of Supreme Court in [PRECEDENT] and argued that in that case it was held that the burden to prove the title is on the tenant. In the present case, as regards the sale through earlier oral agreement to sale is concerned, the same did not confer any title. In para 11 of the reply, the respondent admitted that he has constructed a room with teen shed for his personal necessity and thus he has made material alteration in the premises, which eventually becomes a ground for eviction.
Shri [ENTITY], learned counsel for the petitioner has relied on the judgement of Supreme Court in State of Andhra Pradesh & Ors. Vs. [ENTITY] (Dead)by L.Rs.-(2012) 8 SCC 584 contending that a tenant is estopped from questioning landlord's title so long as tenant does not surrender possession to landlord. Shri [ENTITY] has also relied on the judgement of Supreme Court in [PRECEDENT].
Per contra, Shri [ENTITY], learned counsel for the respondent opposed the writ petition and argued that the petitioner not only accepted the sum of Rs.21,000 in the presence of Pd[ENTITY] at the time of oral agreement entered into between the parties but also handed over possession of the flat to the respondent. It was thereafter that the respondent paid to the petitioner a demand draft of Rs.50,000 bearing no.556983 dated 27.11.1999. Petitioner received the same and also executed a receipt on the photo copy of the demand draft that the aforesaid amount was received towards sale consideration. The signature of the petitioner on the receipt is exactly identical to his other admitted signatures in the documents like copy of the possession letter of the flat alloted by Housing Board dated 27.1.1981 and copy of letter dated 1.8.1983 whereby at the time of his retirement, he handed over the charge of the office, which is marked as Annexure-2 to the writ petition. The respondent was in possession of the disputed flat which is evident from the documents like copy of Janta Personal Accident Insurance Policy of National Insurance Co. Ltd. dated 24.3.1986, policy of LIC dated 20.6.1988, Agency commission bill of LIC of India, Jaipur Division of March, 1988 and January, 1989 and copy of ration card (Annexure-D to the written submission), having address thereof. Learned counsel submits that [ENTITY], who is resident of nearby plot in whose presence, the aforesaid amount/draft was given to the petitioner has appeared as a witness to prove so. In cross examination by the petitioner, he has stated that he knows the petitioner from the year 1982 and further stated that in 1985, verbal agreement was entered into between the petitioner and respondent to sell the disputed house to the respondent and that an amount of Rs.21,000 was paid to the petitioner by the respondent at that time in advance. The receipt of the demand draft was also executed by the petitioner in his presence and was signed by him. Reference has been made to the copy of the statement made by [ENTITY]. It is argued that the Rent Tribunal itself has in para 9 of the judgement recorded a finding that petitioner failed to prove any relationship of landlord and tenant relying on the judgement of Supreme Court in [PRECEDENT]. Learned counsel argued that the Supreme Court in that case has held that if the tenant in possession asserts his title, burden of proof to prove contrary is on respondent tenant. However, this judgement is not applicable as in this case, the landlord-tenant relationship is not proved.
The Appellate Rent Tribunal has rightly allowed the appeal considering all the aforesaid facts and the settled proposition of law. It was argued that from January, 1995 to December, 1998, the rent comes to Rs.52,800 and from January, 1999 to December, 2002, the rent would come to Rs.1,34,400. All this computation is based on pleas set up by the petitioner and, therefore, it does not inspire any confidence that an amount of Rs.50,000 has been paid by the respondent towards arrears of rent. It was argued that eviction suit could not be allowed solely on the ground of old age of the petitioner, particularly when the very relationship of parties as tenant and landlord is disputed.
Shri [ENTITY], learned counsel for the respondent in support of his arguments relied on judgements of Supreme Court in [ENTITY] vs. D.G. Baffna-(2002) 1 SCC 482, [PRECEDENT], [PRECEDENT], [ENTITY] & Ors. vs. Financial Commissioner, Haryana & Ors.-(2005) 10 SCC 226, [PRECEDENT], [PRECEDENT], [PRECEDENT] and [ENTITY] (Dead) & by L.Rs. vs. Babulal (Dead) by L.Rs. & Ors.
I have given my anxious consideration to the rival submissions and perused the material on record.
In Kamakshi Builders, supra, the judgement relied by counsel for the petitioner, although it is true that the Supreme Court held that burden to prove his title was on the respondent-tenant, but because tenant in that case was asserting his title and disputing ownership of the landlord, was admittedly put in possession at the initial stage when the disputed property was let out to him, a fact not in dispute. Unlike in the present case, the tenant in that case was claiming title by way of oral gift and alternatively on adverse possession. In those facts, it was observed by the Supreme Court that burden to prove his title was of the respondent-tenant. Similarly, in [ENTITY], supra, the tenant was put in possession of the disputed premises in the capacity of tenant and, therefore, it was held that he was estopped from questioning landlord's title so long as he does not surrender the possession to the landlord. In [ENTITY], supra, it was held that a watchman, care taker or a servant in the property employed to look after the property can never acquire interest in the property irrespective of his long possession. It was held that he was under an obligation to handover the possession forthwith on demand.
The facts of the aforesaid cases, which have been relied on by learned counsel for the petitioner are distinguishable from those of the present case because what is asserted herein by the respondent-tenant is that from day one, he came to acquire possession of the disputed flat on the strength of agreement to sale and not as a tenant, whereas, the petitioner-landlord is asserting to the contrary. The respondent has produced evidence of [ENTITY], who has asserted that a sum of Rs.21,000 was paid in his presence for purchase of the aforesaid flat by the respondent to the petitioner, who in lieu thereof handed over vacant possession of the flat to respondent and it was thereafter that a demand draft of Rs.50,000 bearing no.556983 dated 27.11.1999 was handed over as part of sale consideration, in lieu whereof a receipt to that effect was executed on photo copy of the demand draft by the petitioner. In those facts possibly, the Appellate Rent Tribunal cannot be held to have erred in law in accepting the appeal and setting aside the order passed by the Rent Tribunal.
The Supreme Court in [ENTITY], supra a case somewhat similar on facts where the agreement of sale was executed by landlady with tenant, who accepted substantial portion of sale consideration i.e. Rs.20,000, out of Rs.25,000 agreed as sale consideration. Later landlady alleging breach of agreement by the appellant repudiated the agreement by returning the amount of Rs.20,000 by cheque which was not encashed by the appellant-tenant. Landlady then filed suit for eviction on the ground of willful default. It was held that appellant was not a tenant and non-payment cannot be construed to be willful default on his part.
In [ENTITY], supra it was held by the Supreme Court that pre-requisite condition for maintainability of petition under [SECTION] of the [ACT] was existence of relationship of landlord and tenant between the parties to eviction petition. While the landlord asserted existence of relationship of landlord and tenant between the parties, but the appellant-tenant denied the same on the basis that he had purchased the premises under the oral agreement for sale and paid certain amount as part consideration. The appellant also filed a suit for specific performance, which was pending before the Court.
In [ENTITY], supra, it was held by the Supreme Court that possession whether based on tenancy or agreement of sale is essentially a question of fact. In that case, it was held that the respondents had been tenants in the land in question much prior to sale agreement dated 27.7.1976. The application for eviction was filed ten years after the said date. The Supreme Court held that since there was no evidence that any rent was collected for those ten years, finding of the authorities below holding that possession was based on sale and not on tenancy, cannot be faulted.
In the present case also, except for the two payments of Rs.21,000 and Rs.50,000, nothing has been shown whether any payment of rent was made by the respondent to the petitioner.
In [ENTITY], supra the respondent-landlord filed suit for eviction of the appellant-tenant on the ground of sub-letting. On evidence, however, it was shown that property was mortgaged by the appellant to the respondent. On the date of institution of suit, right of redemption of mortgage was not closed. It was held that relationship of landlord and tenant was not existing between the parties and the suit for eviction was not maintainable.
In view of settled proposition of law as noticed above and looking to the nature of evidence that has been adduced in the present case, petition for eviction filed by the petitioner on the ground of his being senior citizen under [SECTION] of the [ACT] or otherwise on the ground of default, material alteration and denial of title could not be entertained because the respondent cannot be evicted from the disputed flat in such a summary manner. However, the remedy for either of the parties would be to approach civil court; the petitioner for recovery of possession of his flat or the respondent for suit for specific performance and perfection of his title, but the respondent on the kind of evidence that he has been able to produce before the Rent Tribunal, is certainly entitled to protect his possession not being liable for eviction in summary proceedings under the [ACT].
In view of above, I do not find any error in the judgement passed by the learned Rent Appellate Tribunal dated 8.3.2011 in reversing the judgement of the Rent Tribunal. There being no merit in the present writ petition, the same is dismissed.
RS/ ([ENTITY]), J.
All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. ([ENTITY],P.A.)