CR No.1847 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1847 of 2011 (O&M) Date of decision: 5.7.2011 Gurjit Kaur and others ......Petitioner(s) Versus Sneh Lata and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Baltej Singh Sidhu, Advocate for the petitioners. Mr. B.R. Mahajan, Advocate for the respondents. Rakesh Kumar Garg, J. This is tenants' revision petition challenging the judgment dated 30.10.2010, of the Appellate Authority, whereby appeal filed by the respondent-landlord against the order dated 10.1.2007 passed by the Rent Controller, Chandigarh was accepted and matter was remanded back to the Rent Controller for deciding the same afresh in accordance with law. Brief facts of the case, as averred in the petition, are that one Mohinder Nath, predecessor in-interest of respondents No.1 to 5 (legal heirs of Mohinder Nath), was owner/landlord of the demised premises, who rented out the demised premises to Surinder Singh i.e the husband of petitioner No.1 and father of petitioners No.2 and 3 in May 1994 at a monthly rent of ` 14,00/- excluding water and electricity charges. Eviction petition was filed on the ground of non-payment of rent and bona fide personal necessity of respondents herein. Upon notice, Surinder Singh-tenant filed written statement raising various objections including that there was no relationship of tenant and landlord between him and respondents No.1 to 4. It was further CR No.1847 of 2011 (O&M) 2 averred by him that he was tenant under respondent No.5. It was further stated that Loan-cum-Security-cum-Rent Agreement (Ex.D-1) dated 29.12.1983 was executed, whereafter, respondent No.5 received a sum of ` 1,50,000/- from him and agreed to repay the same along with interest at the rate of 1.5% per month. Vide the said agreement, respondent No.5 inducted the petitioner as a tenant at a monthly rent of ` 600/- qua the demised premises. It was also agreed that the interest accruing on the loan of ` 1,50,000/- would be adjusted towards monthly rent and now an amount totalling to ` 5,08,000/- was due against respondent No.5. It was further contended that after adjusting the rent, a sum of ` 3,13,400/- was due against respondent No.5. It was further denied that respondent No.5 requires the demised premises for his own use and occupation and thus, prayer for dismissal of the eviction petition was made. On the pleadings of the parties, the following issues were framed by the Rent Controller:- “1. Whether the respondent is liable to be evicted on the ground of non-payment of rent? OPP 2. Whether the petitioners require the premises for bonafide personal use and occupation? OPP 3. Whether the petition is bad for mis-joinder of parties? OPR 4. Whether there exists no relationship of landlord and tenant between petitioner Nos.1 to 4 and respondent? OPR 4 (a) Whether roof is a part of tenancy? OPR 5. Whether the petitioners have not approached the Court with clean hands? OPR 6. Whether the petitioners have no cause of action? CR No.1847 of 2011 (O&M) 3 OPR 7. Whether the petition is not maintainable? OPR 8. Relief.” Wile dismissing the eviction petition, vide order dated 18.1.2007, the Rent Controller held that document Ex.D1 was a mortgage deed and there was no relationship of landlord and tenant between the parties and thus, the petition was not maintainable. In the appeal filed by the respondent-landlord challenging the aforesaid judgment, the Appellate Authority came to the conclusion that there existed a relationship of landlord and tenant between the parties. The relevant observations of the Appellate Authority read thus:- “11. While having due regard to the contentions of respective parties, it is observed that crucial aspect of controversy involved in the instant case pertains to the fact as to whether there exists a relationship of landlords and tenant between the parties or not? 12. To determine above said aspect, a careful scrutiny of pleadings of the respective parties is quite relevant. In terms of para Nos.1 and 3 of the petition, it is the case of the petitioners-landlords that they being landlords had let out the demised premises to respondent-tenant at a monthly rent of Rs.1,400/- per month and whereas respondent has paid the rent to the petitioners only upto December, 1995. In corresponding para No.2 of written statement reply on merits, respondent has specifically admitted there and stated that “respondent is a tenant in respect of drawing-dining, three bed rooms, bath room, kitchen apart from a kacha room etc. on the first floor CR No.1847 of 2011 (O&M) 4 also.” Respondent has further admitted in the above said para of the written statement and stated that “In fact, the possession of the demised premises was handed over to the respondent by petitioner No.5 only after an agreement known as “Loan-cum-Security-cum-Rent Agreement” dated 29.12.1993 was executed between the parties...... Vide this agreement, petitioner No.5 inducted the respondent as tenant at a monthly rent of Rs.600/-”. Apart from above said categorical admission in the written statement on the part of respondent claiming himself to be tenant of petitioner No.5 qua demised premises, further respondent has reiterated his above said stand as well in his testimony recorded as RW-1, in this scenario, once respondent himself has categorically admitted in his written statement as well as in his statement as RW-1 to be a tenant under petitioner No.5 qua demised premises, this Court has failed to understand as to how learned Rent Controller has recorded the finding that there exists no relationship of landlord and tenant between the parties. As far as document Ex.D1 is concerned, it is observed that even though learned Rent Controller has given the said document nomenclature of mortgage deed but a fact cannot be lost the sight that document Ex.D1 has been given the title of “Loan-cum-Security-cum-Rent Agreement” and in terms of said document there is so called transaction of amount of Rs.1,50,000/- in liew of transfer of possession of demised premises. As learned CR No.1847 of 2011 (O&M) 5 Rent Controller has given nomenclature of mortgage deed to document Ex.D-1 as detailed above, but said document for want of compulsory registration under Section 17 (1)(b) of Registration Act, 1908 cannot be termed as mortgage deed in terms of provisions of Section 49 of the said Act. In case Maung Po Din and another vs. Maung Tha Saing and other AIR 1930 Rangoon 142, while interpreting the provisions of Section 49 of the Registration Act, it has been held that suit for money lent on unregistered mortgage bonds is competent and such document can be used as evidence of loan. At this juncture, it is relevant to point out here that respondent (RW-1) during his cross-examination has categorically admitted that he has already filed a suit for recovery of the amount against Daya Kishan (petitioner No.5). Once respondent Surinder Singh has already filed a suit for recovery against petitioner No.5 Daya Kishan on the basis of document Ex.D-1, then he (respondent) cannot be permitted to take somersault and take a stand that demised premises is mortgaged with him. 13. Keeping in view above said findings, once it has come on the record that there exists a relationship of landlord and tenant between the parties, in this scenario, learned Rent Controller, was required to deal with entire aspects of the case in accordance with law. Hence, findings recorded by learned Rent Controller, vide judgment dated 18.1.2007 are set-aside.” CR No.1847 of 2011 (O&M) 6 As a sequel to the above said findings, the appeal was accepted and judgment dated 18.1.2007 passed by the Rent Controller was set aside and the case was remanded back to the Rent Controller with a direction to decide the matter afresh in accordance with law on the basis of the evidence already led by the parties. On the basis of the contention raised by the learned counsel for the petitioners, the following order was passed by this Court on 17.3.2011: “There is a conflict in opinion of the Courts below in the interpretation of the document which is termed as “loan- cum-security-cum-rent agreement”. The learned Rent Controller has interpreted the document as a mortgage deed, whereas the learned Appellate Authority has called it to be a rent agreement. Learned counsel for the petitioners submits that de hors the nomenclature, the contents of the document show that it is a usufructuary mortgage where possession is handed over against a certain sum of money and person is in possession is to pay the usufruct which is termed as rent. Notice of motion for 18.4.2011. Dasti only. In the meantime, further proceedings shall remain stayed.” A perusal of the aforesaid order would show that counsel for the petitioners has taken a specific stand that document Ex.D1 is a usufructuary mortgage where possession is handed over against a certain sum of money and the petitioners were in possession in pursuance of the same, meaning thereby he is claiming himself to be a mortgagee of the suit CR No.1847 of 2011 (O&M) 7 property instead of a tenant. Keeping in view the stand taken by the learned counsel for the petitioners, the interpretation of document Ex.D1 “as to whether the said document is a mortgage deed or a Rent agreement,” looses its significance. The petitioners have taken a specific stand that they are mortgagees in the suit property and are not tenants whereas admittedly, in the pleadings, the petitioners have admitted the relationship of landlord and tenant between the parties. Moreover, the petitioners have already filed a suit for recovery against respondent No.5 on the basis of document Ex.D1. Once the petitioners have admitted their relationship as tenants and have also filed a suit for recovery on the basis of document Ex.D1, at this stage, they cannot be allowed to take somersault by taking a stand that they are mortgagees and there exists no relationship of landlord and tenant between the parties. Moreover, the document Ex.D1 cannot be termed as mortgage deed for want of compulsory registration as provided under the Registration Act, 1908. No other point has been urged Dismissed. July 5, 2011 (RAKESH KUMAR GARG) ps JUDGE