Civil Revision No.3920 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:19.07.2011 Mohinder Pal Singh & Ors. ....petitioners Versus Gurmit Kaur & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Vijay Lath, Advocate for the petitioners Mr.Arihant Jain, Advocate and Mr.Arun Jindal, Advocate for respondent Nos.1 to 3 *** RAKESH KUMAR GARG, J. The petitioners who are aggrieved, against the order dated 06.10.2007, whereby their eviction was ordered from the premises in dispute and the order dated 23.01.2010 dismissing their appeal against the aforesaid order, have approached this Court by way of the instant revision petition. One Uttam Singh, since deceased (predecessor-in-interest of the respondents) filed ejectment application against Hari Singh(since deceased),now represented by the petitioners from the demised premises submitting that he was owner and landlord of the shop in dispute which was given on rent to respondent-Hari Singh @ `25/- per month. Property in dispute is situated in khasra No.67//78 of main bazaar, Kurali, which was previously owned in equal shares by Uttam Singh as well as Civil Revision No.3920 of 2010(O & M) 2 Rachan Singh. After the death of Rachan Singh, Gurdial Kaur became owner of half share. Sub-Judge, Kharar vide his judgement dated 05.01.1985 in a partition suit held that Gurdial Kaur was owner of half share in khasra No.67//78 and accordingly a preliminary decree for partition of the property was pa ssed. Later on, Gurdial Kaur sold her total land in the aforesaid khasra number to Sujjan Singh vide sale deed dated 22.07.1987 alleging herself to be owner of 5 marlas out of khasra No.67//78 and one marla out of khasra No.67//79. But in the civil suit it was held that she had no share in khasra No.67//79 and to that effect sale deed was declared as void and inoperative. However, it was held that she had been left with no share in khasra No.67//78. Again, in civil suit titled as “Uttam Singh versus Gurdial Kaur”, decided on 06.02.1990, it was held that Gurdial Kaur was left with no share in khasra No. 67//78 having sold her entire share to Sujjan Singh. Since the property in dispute was given on rent to respondent by Rachan Singh, who was a co-owner of the property in dispute with Uttam Singh and who was now the sole owner and landlord of the property in dispute, was entitled to receive the rent from that date. It was further averred that respondent Hari Singh filed another suit, which was dismissed on 09.09.1992 holding that respondent was a tenant of Uttam Singh and not of Gurdial Kaur widow of Rachan Singh. Uttam Singh had also received the rent earlier from Hari Singh vide rent application No. 33 of 22.08.1990. Since Hari Singh was in arrears of rent from 01.06.1991, he was liable to be ejected. Respondent Hari Singh filed written statement and contested the eviction application raising an objection to the effect that relationship of landlord and tenant does not exist between the parties and therefore the application was not maintainable. It was further averred that Rachan Singh and Uttam Singh were brothers. Rachan Singh had constructed the shop in dispute in khasra No.67//78 and during his life time Civil Revision No.3920 of 2010(O & M) 3 had rented out the same @ ` 25 per month. After his death he was paying rent to Gurdial Kaur, his widow. Gurdial Kaur had alienated the shop in dispute through the sale deed dated 26.09.1995 to Amarjit Kaur d/o Piara Singh, resident of Kurali. The respondent delivered the possession of the shop in dispute to Amarjit Kaur who is now owner and in possession of the shop in dispute. Hence, the suit was not maintainable and was liable to be dismissed. On the pleadings of the parties, the Rent Controller framed the following issues: 1. Whether there exists relationship of landlord and tenant between the parties?OPA 2. If issue No.1 is proved, whether respondent is in arrears of rent?OPA 3. Relief. Thereafter, both the parties led their respective evidence and also placed on record the documents in support of their respective case and, after hearing learned counsel for the parties vide order dated 08.10.1997, Rent Controller ordered the eviction of the petitioner. Petitioner filed an appeal. Vide judgement dated 10.10.2005, the Appellate Authority, Ropar, remanded the case back to the Rent Controller, Ropar and after remand the following issues were framed vide order dated 26.10.2005: 2-A Whether the ejectment application is not maintainable in view of the sale deed in favour of Amarjit Kaur on the demised premises?OPR 2-B Whether the learned Rent Controller has no jurisdiction?OPR Thereafter, both the parties again led their respective evidence and after the conclusion of the evidence of the parties and Civil Revision No.3920 of 2010(O & M) 4 hearing the learned counsel, the Rent Controller accepted the eviction petition and ejectment order was passed in favour of the legal heirs of Uttam Singh and against the legal heirs of Hari Singh, who were ordered to vacate the premises in question within one month. While ordering eviction, the Rent Controller, Ropar, observed as under: In view of above detailed discussion, it is held that Hari Singh is a tenant under Uttam Singh in the shop in dispute. It is also held that Hari Singh is in arrears of rent qua Uttam Singh as in the previous application Hari Singh had tendered rent for the period from 01.08.1987 to 31.05.1991 and in the present petition, petitioner has claimed arrears or rent w.e.f. 01.06.1991 up to the date of filing petition, but since respondent had denied the relationship of landlord and tenant and did not tender arrears of rent, it is held that respondent is in arrears of rent. The effect of non payment of rent is being dealt in succeeding paras. In view of above discussion, this court is not under obligation to pass an assessment order for tendering arrears of rent. Therefore, in view of above, rent petition is accepted with costs. Ejectment order is passed in favour of legal heirs of Uttam Singh and against legal heirs of Hari Singh and they are ordered to vacate the premises in their occupation within one month failing which applicants will be entitled to get Civil Revision No.3920 of 2010(O & M) 5 possession through agency of the court. Aggrieved from the aforesaid order of the Rent Controller, petitioner filed an appeal before the Appellate Authority, Ropar, which was dismissed. The relevant part of the judgement reads thus: The main controversy between the parties is regarding the status of Gurdial Kaur, Uttam Singh, Hari Singh, Amarjit Kaur and Sujjan Singh. It is admitted fact that Sujjan Singh has already sold the property which he had purchased from Gurdial Kaur vide sale deed dated 22.07.1987, to Harish Kumar etc. and Harish Kumar etc. are in possession of that property. Similarly, Gurdial Kaur had sold her share from Khasra No. 67//79 (0-2) wrongly whereas she had no share in Khasra No. 67//79 but she had wrongly sold 1 marla out of Khasra No. 67//79. Therefore, the sale deed dated 22.07.1987 which is Ex.P-1 on the file was challenged by Uttam Singh and it was held vide judgment dated 16.09.1989 Ex. A-5 that the sale deed is void qua Khasra No. 67//79 (0-2) and in the judgment Ex. A/3 it was held that Sujjan Singh was become the owner of 6 marlas out of Khasra No. 67//78 (0-12) who had further sold the land. Since Gurdial Kaur had sold her share, therefore, she could not execute any sale deed in favour of Amarjit Kaur on 26.09.1995. As such, the suit property which was sold by Gurdial Kaur to Sujjan Singh is not the shop in dispute, rather the same was further sold to Harish Kumar etc. Hence, it is clear that neither Gurdial Kaur nor Sujjan Singh Civil Revision No.3920 of 2010(O & M) 6 nor Harish Kumar nor Amarjit Kaur have any concern with the shop in dispute. As such, Gurdial Kaur has no concern with the shop in dispute. Now the question arises as to whether Hari Singh appellant/respondent has become a tenant of Uttam Singh. Since Hari Singh had been paying the rent to Rachan Singh and after the death of Rachan Singh to Gurdial Kaur wife of Rachan Singh, but Gurdial Kaur left with no right in Khasra No. 67//78 (0-12) and other ½ share was owned by Uttam Singh. Therefore, by efflux of law Hari Singh became tenant of Uttam Singh and on 03.05.1991 Hari Singh tendered the arrears of rent for the period from 01.08.1987 to 31.05.1991 in favour of Uttam Singh. Hence, it is clear that since the rent has been tendered vide statement Ex.A-1 by Hari Singh in favour of Uttam Singh. Therefore, it is established on record that the relationship of landlord and tenant between the parties exists. In view of the above discussion, it is held that Hari Singh appellant/respondent is tenant under Uttam Singh in the shop in dispute. It is also held that Hari Singh is in arrears of rent qua Uttam Singh as in the previous application Hari Singh had tendered the rent up to 31.05.1991 but he has not paid the remaining arrears of rent. Further Amarjit Kaur had purchased the property vide sale deed dated 26.09.1995 which is also illegal because Gurdial Kaur sold 1 marla land out of Khasra No. Civil Revision No.3920 of 2010(O & M) 7 67//79 in which she has no right to sell the same. Therefore, the sale deed dated 26.09.1995 in favour of Amarjit Kaur has no effect regarding the maintainability of the rent application. Challenging the impugned orders, learned counsel for the petitioners has vehemently argued that their existed no relationship of landlord and tenant between Uttam Singh and Hari Singh and thus the impugned orders of eviction of the petitioner were liable to be set aside. Elaborating his argument, learned counsel for the petitioner has vehemently argued that it has been established on record that initially, the shop in question was rented out to Hari Singh vide rent deed dated 20.04.1955 (Ex.R-1) at a monthly rent of ` 25 per month w.e.f.16.01.1955 and the execution of the said rent deeds have not been disputed by Uttam Singh and thus, initially the relationship of landlord and tenant was between Rachan Singh and tenant and no tenancy was ever created between Uttam Singh and Hari Singh. The payment of rent to Rachan Singh and thereafter to Gurdial Kaur who stepped into his shoes is duly proved by the rent receipts placed on record and further Gurdial Kaur sold the property in dispute vide sale deed dated 26.09.1995(Ex.RW3/A/1) in favour of Amarjit Kaur and Hari Singh delivered the possession to Amarjit Kaur qua the shop in question who was in possession of the disputed property as owner and thus the impugned orders were liable to be set aside. The argument raised by learned counsel for the petitioner, though seems to be attractive, but is of no merit. Admittedly, Rachan Singh and Uttam Singh were the co-owners/landlords of the property in dispute. There is nothing on record to show that either Hari Singh or thereafter Gurdial Kaur, his widow, had ever got the possession of the suit property in partition, exclusively. In fact, learned counsel for the petitioner has very fairly admitted before this Court that the property in dispute still belongs to Civil Revision No.3920 of 2010(O & M) 8 all the co-owners. In view of the aforesaid submission alone, the revision petition is liable to be rejected as it was well settled that co-owner can rent out the property to a tenant and the same shall be considered to be on behalf of all the owners and thus their existed relationship of landlord and tenant between Hari Singh and Uttam Singh as it is the petitioner's own case that Hari Singh was a tenant under Rachan Singh who was a co- owner of Uttam Singh(predecessor-in-interest) of the respondents. Not only this, the courts below, on the basis of the evidence on record, have recorded a finding of fact that after the sale deed dated 22.07.1987, Gurdial Kaur was left with no interest, title or property in khasra No.67//78. If, that is so, the alleged sale deed dated 26.09.1995 on which reliance has been placed by the petitioner to argue that Amarjit Kaur has become the owner of the suit property on the basis of said sale deed and she has been delivered possession, is absolutely, baseless as the aforesaid sale deed dated 26.09.1995 will not give any right, title to Amarjit Kaur d/o Piara Singh as on the date of execution of the said sale deed Gurdial Kaur was not having any title in the suit property. In this view of the matter, the findings recorded by the courts below that their existed the relationship of landlord and tenant between Uttam Singh and Hari Singh, no fault can be found with the impugned orders/judgements passed by the courts below. No other point has been argued. Dismissed. (RAKESH KUMAR GARG) JUDGE 19.07.2011 neenu