Civil Revision No.3270 of 1990 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3270 of 1990 (O&M) Date of decision: 16.04.2009 Surinder Mohan .............Petitioner Vs. Rattan Chand and another ............Respondents Present: Mr. Gaurav Chopra, Advocate for the petitioner. Mr. Ashok Gupta, Advocate for the respondents. Civil Revision No.671 of 1991 (O&M) Rattan Chand ..........Petitioner Vs. Surinder Mohan and another .......Respondents Present: Mr. Ashok Gupta, Advocate for the petitioner. Mr. Gaurav Chopra, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K.KANNAN, J. 1. The twin civil revisions arise out of a single action of the eviction in respect of H.No.1037/3, the ground and the first floor situate within the limits of Chandigarh Administration. The grounds of eviction urged by the landlord were non-payment of rent, personal requirement of the landlord and subletting by the 1st respondent in Civil Revision No.3270 of 1990 (O&M) -2- favour of the 2nd respondent in respect of the first floor of the construction. The tenant pleaded change in status as a person in part performance of an agreement of purchase from what was originally that of a tenant and that he was not liable to be evicted. The Rent Controller accepted the contentions and dismissed the petition. The landlord preferred an appeal before the Additional District Judge, Chandigarh, who ordered eviction of the first floor of the construction only and dismissed the petition for eviction in respect of the ground floor. 2. The tenant preferred the civil revision No.3270 of 1990 directing eviction of the first floor and the landlord filed civil revision No.671 of 1991 against rejection of his plea for ejectment in respect of the ground floor. The two civil revision petitions address common issues of facts arisen from the same transaction and they are, therefore, disposed of by a common judgment. 3. The admitted case of the parties was that the property had been rented out to Surender Mohan in respect of the first floor only. There had been another tenant by name Ghayyoor Sultan in respect of the ground floor. The tenant-Surender Mohan had entered into an agreement of purchase, which the landlord refers to in the petition as an oral one some time in the year 1979, under the terms of which the property was offered to be sold for Rs.30,000/- and an advance of Rs.10,000/- was paid. The balance of Rs.20,000/- was to be paid in four equal installments of Rs.5,000/- each after every six months commencing from 10.03.1980. The landlord's contention was that the tenant was liable to pay Rs.75/- per month as rent. The agreement Civil Revision No.3270 of 1990 (O&M) -3- contemplated other clauses such as when the tenant did not complete the sale transaction by paying the balance sale consideration, the rent payable would again be Rs.150/- per month. Though initially, the landlord had contended that some signed stamp papers had been taken by the tenant, it transpired in evidence that a copy of the written agreement itself had been filed and marked as Ex.P-2, which sets out the terms as referred to in the petition and the genuineness of the agreement was itself not in serious challenge at the trial. Admittedly, the entire sale consideration had not been paid and the property had not been transferred to the 1st respondent. It was the landlord's contention that after the agreement, the tenant had vacated forcibly his own tenant at the ground floor and took possession of the same. The property of which the tenant was occupying at the first floor had been sublet in favour of the 2nd respondent. According to him, no written consent had been taken from him and on the failure of the tenant to obtain the sale deed, he filed a suit for ejectment complaining the tenant's possession at the ground floor as a trespasser but when a defence was taken by the tenant that he was in possession of the property under an agreement of sale, he withdrew the suit and filed the petition for eviction under the grounds referred to above. 4. The tenant resisted the landlord's petition contending that he was ready and willing to purchase the property and the sale could not be completed only by the conduct of the landlord in not executing the document as per his undertaking. The Rent Controller found that the landlord had not come to Court with clean hands and there were no definite pleadings about when the tenant had sublet the premises and Civil Revision No.3270 of 1990 (O&M) -4- that further after the execution of the agreement of sale, the tenant could not any longer be treated as a person in possession of the property maintaining the jural relationship and consequently dismissed the petition. The Appellate Court differed from the finding of the Rent Controller and had held that after the landlord's contention was that only the first floor of the building had been rented out to the tenant and that he had forcefully entered into possession of the ground floor without his consent. His continuance of the possession of ground floor was thus not in the capacity of a tenant and the provisions of the East Punjab Urban Rent Restriction Act, 1949 could, therefore, be not invoked with reference to the claim for the ground floor. As regards the first floor, the Appellate Court found that every one of the aspects that was required to be proved for ejectment namely non-payment of rent, exclusive possession of a person other than his tenant at the first floor and the requirement of the landlord had all been established and therefore, ordered eviction only of the first floor. 5. After hearing the arguments of the respective counsel on both sides and on a factual consideration of the situation that the tenant had not obtained a sale deed pursuant to the agreement, the issue would be whether by such an agreement, there had been a change in character of the status of the tenant to take the action away from the purview of the Rent Restriction Act. It has to be borne in mind that a mere agreement of sale between landlord and tenant will not put an end to existing jural relationship of landlord and tenant. A change in character of property will have to be inferred from any terms of the agreement holding that the tenancy was put to an end and Civil Revision No.3270 of 1990 (O&M) -5- that the tenant was entitled to protection by any express provisions of law from being ejected out of the property. 6. The terms of the agreement Ex.P-2 clearly spells out that the parties had never contemplated putting an end to the jural relationship. On the contrary, after the payment of Rs.10,000/- as advance, the document contemplated that the rent would be reduced to Rs.75/- per month and that if the tenant failed to perform his part of the contract the rent would again be raised to Rs.150/-. The agreement itself was for sale of the ground floor as well as the first floor and the amount of Rs.75/-, which was later to be increased to Rs.150/- in case of default by the tenant was not particularized as payable only for the first floor. The duty to pay rent at Rs.75/- and later at Rs.150/- was contemplated to be a re-compense for possession of the entire property and not merely a portion of the entire building. Although the initial letting had been only in respect of the first floor, the fact that the agreement contemplated a sale of the whole property that was the ground floor as well as the first floor, the non-fulfillment of the terms of the agreement and the liability to pay Rs.150/- as rent for the whole building created a tenancy in respect of the whole building namely of the first floor and the ground floor. 7. Two consequences flow out of this bargain: One, the non- payment of the balance of sale consideration and the non-execution of the sale deed in favour of the tenant persisted the character of the tenant as such and as a person who had not parted with balance of sale consideration, the protective umbrella of Section 53-A of the Transfer of Property Act to a person who had not fulfilled his part of the Civil Revision No.3270 of 1990 (O&M) -6- bargain did not avail to him. Two, the duty to pay Rs.150/- on the non-fulfillment of the terms of the agreement that was not referred to be payable only for the first floor but for the whole building created a tenancy in his favour also in respect of the ground floor. Admittedly, the 2nd respondent had been inducted into possession of the first floor, which was the property originally rented out to the 1st respondent. Again the property in the hands of Gayyoor Sultan had gone out of his hands and resumed in the hands of the tenant. It meant that he maintained his tenancy in respect of the ground floor as a tenant. So long as the sale deed had not been executed and the agreement itself contemplated the payment of rent in spite of agreement, no change in character of the tenant took place and the non-payment of rent was clearly unjustified. The occupation of the 2nd respondent, who was admittedly not the tenant of the landlord was obviously an act of sub- tenancy by the tenant without the written authority of the landlord. The landlord's personal requirement itself was not in doubt but the eviction was ordered by the Appellate Authority only on account of the fact that the initial letting of the property to the 1st respondent had not only been in respect of the first floor and his subsequent occupation of the ground floor was not shown to be under any express contract. The Appellate Authority had failed to notice that the agreement contemplated the tenant being put in possession of the whole property and his liability to pay rent for the whole property. If the terms of the agreement for the sale had not been fulfilled, the status of the 1st respondent as a tenant for the whole of the property could not, therefore, be denied. The Appellate Authority having Civil Revision No.3270 of 1990 (O&M) -7- found that the right to ownership had not fructified in favour of the tenant ought to have granted the order of ejectment of both the ground floor and the first floor and the landlord was entitled to succeed in his action for ejectment of the whole premises. 8. Under the circumstances, the order of the Appellate Authority is modified and the ejectment is ordered also of the ground floor, which had been denied by the Appellate Authority. Consequently the revision filed by the tenant in C.R. No.3270 of 1990 is dismissed and the revision petition filed by the landlord in C.R. No.671 of 1991 is allowed. The landlord is entitled to ejectment of the entire premises as sought for by him in the petition. The petitioner shall also be entitled to costs of Rs.5000/- payable in two sets for each of the civil revisions. Two months time is granted for eviction. (K. KANNAN) JUDGE April 16, 2009 Pankaj*