IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 34 of 2006 Date of decision: 15.11.2010 Kishori Lal and another ….. Petitioners. Vs. Ravi Dutt and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. N.K. Thakur, Advocate For the Respondents : Mr. H.K. Bhardwaj, Advocate, for respondents No.1(1) to 1(d) and 2 to 10. Kuldip Singh, J(Oral) This petition is directed against the judgment dated 7.1.2006 passed by learned Addl. District Judge in Civil Appeal No.11/04/02, affirming order dated 17.4.2002 passed by learned Rent Controller, Court No.(1), Amb, District Una. 2. Bhagwan Dass and Mehar Chand had filed on 18.9.1982 ejectment petition RRA No.7/82 against Swaya Ram, Dina Nath, Kishori Lal and Satish Kumar. That petition was allowed on 21.9.1985 by learned Rent Controller, Amb, Distt Una. In CMA No.82 of 1985, the Appellate Authority, Una vide judgment dated 28.10.1987 has affirmed the order dated 21.9.1985. The judgment dated 28.10.1987 was upheld by this Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… court on 15.7.1997 in CR No.219/87. The SLP against judgment dated 15.7.1997 was dismissed by the Supreme Court on 5.12.1997. 3. The connected facts are that Bagwan Dass, Mehar Chand had filed Civil Suit No.1098 of 1984 for declaration that the sale deed dated 26.11.1981 in favour of Kishori Lal and Satish Kumar both sons of Dina Nath is wrong and illegal and not binding on them. Kishori Lal, Satish Kumar have no right, title and interest in the shop. It was pleaded that disputed shop fell to the share of Nand Lal predecessor of plaintiffs in the suit who gave the suit on rent to Swaya Ram in the year 1953. Swaya Ram created sub-letting of the shop in favour of Dina Nath father of Kishori Lal and Satish Kumar. The suit was dismissed by learned Sub Judge Ist Class Court No(1) , Amb on 20.9.1990. The matter was carried in Civil Appeal No.167 of 1990 which was dismissed by learned District Judge on 31.8.1994. In RSA No.197 of 1995 on 15.7.1997 this Court set aside the decisions dated 20.9.1990 and 31.8.1994. The suit filed by the plaintiffs in Civil Suit No.1098 of 1984 was decreed. The matter was carried to the Supreme Court and the Civil Appeal No.4296 of 1999 was allowed. RSA No.197 of 1995 was restored to the file of this Court with a direction to this High Court to decide the said appeal in accordance with law. RSA No.197 of 1995 vide separate judgment dated 15.11.2010 has been dismissed. 4. In the meantime Execution Petition No.40 of 1999 was filed for executing the ejectment order. The execution was …3… objected on the ground that execution petition is not maintainable. It was alleged that Nand Lal, Tulsi Ram and Pala Ram brothers had three shops, one at village Wari and two at village Daulatpur Chowk. The shop in question was in Hissedari possession of Tulsi Ram as a result of private arrangement among three brothers. Jamna and Kashmiri had sold the shop in question to Kishori and Satish Kumar vide sale deed dated 26.11.1981 which was challenged by Bagwan Dass etc. in civil suit which was dismissed by the learned trial Court and the learned District Judge had affirmed the dismissal of the suit. It was also pleaded that the matter was pending in RSA No.197 of 1995 after remand from the Supreme Court. In these circumstances execution petition is not maintainable. It was submitted that in view of the findings of the civil court the petitioners have no right to seek ejectment of the respondents from shop in question. 5. The objections were opposed by respondents herein on the ground that ejectment order has been upheld up to Supreme Court. There is no stay of the execution. The executing Court had framed the following issues:- 1. Whether the execution petition is not maintainable in view of objections of respondents as alleged? OPR. 2. Relief. The objections were dismissed on 17.4.2002. The matter was carried in appeal and learned Addl. District Judge, Una dismissed the appeal on 7.1.2006 and affirmed the order dated …4… 17.4.2002 of the learned Rent Controller, Court No.(1), Amb. The order dated 17.4.2002 and judgment dated 7.1.2006 have been assailed in the present petition. 6. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the petitioners has submitted that the petitioners have purchased the shop in question vide sale deed dated 26.11.1981. The petitioners are co-sharers alongwith the respondents herein. The lower status of tenants or sub-tenants of petitioners by virtue of sale deed dated 26.11.1981 has merged into a higher status of landlord/owner and therefore, on the basis of ejectment order the petitioners cannot be ejected from the premises in question. He has submitted that the execution petition filed by respondents is rendered un-executable. This Court vide judgment dated 15.11.2010 in RSA No.197 of 1995 has upheld the decision dated 20.9.1990 of the learned trial Court and decision dated 31.8.1994 of the learned lower Appellate Court. The validity of sale deed dated 26.11.1981 of the shop in question in favour of petitioners has been upheld by civil Court. 7. The learned counsel for the respondents has submitted that ejectment order against petitioners regarding the shop in question has attained finality and therefore, respondents are entitled to possession of shop in question by executing the ejectment order. But on behalf of the respondents it has not been shown how in presence of sale deed dated 26.11.1981 of shop in question in favour of petitioners the respondents are entitled to …5… possession of the shop from the petitioners, who by virtue of sale deed dated 26.11.1981 are co-sharers in the property and have equal status of landlord/owners. The petitioners were already in possession of the shop and they have every right to remain in possession of the shop in question on the basis of sale deed dated 26.11.1981 till the property is partitioned in accordance with law. 8. The Section 26 of the H.P. Urban Rent Control Act, 1987 (for short 1987 Act) provides that ejectment order shall be executable by the Controller as a decree of a civil court and for this purpose; the Controller shall have all the powers of a civil court. The Section 47 of the Code of Civil Procedure provides that all questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In RSA No.197 of 1995 on 15.11.2010 validity of sale deed dated 26.11.1981 of the shop in question in favour of petitioners has been upheld. The ejectment petition was filed on 18.9.1982. It appears from the order dated 21.9.1985 that the petitioners herein who were respondents No.3 and 4 in the ejectment petition had not contested the petition. It was held in the order dated 21.9.1985 that respondents No.1 and 2 have sub-let the premises in question to respondents No.3 and 4. In Civil Suit No.1098 of 1984 one of the question was regarding the validity of sale deed dated 26.11.1981 executed in favour of …6… petitioners herein. RSA No.197 of 1995 has arisen out of Civil Suit No.1098 of 1984 and the validity of sale deed dated 26.11.1981 in favour of petitioners has been upheld in judgment dated 15.11.1997 of this Court in RSA No.197 of 1995. The petitioners are already in possession of shop in question and after the sale deed dated 26.11.1981 their status is that of co-owners. The question therefore is whether in presence of sale deed dated 26.11.1981 the ejectment order of the shop in question against petitioners is executable. 9. The Section 111 of the Transfer of Property Act, 1982(for short Act) provides as under:- 111. Determination of lease-A lease of immoveable property determines- (a) x x x (b) x x x (c ) x x x (d) In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. The sub clause (j) of Section 108 of the Act provides that the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property. Thus under the Act lessee has right to sublet but it is a different matter for the purposes of 1987 Act sub-letting is protected only, if it is with the consent of landlord in writing. In Reoti Saran v. Hargu Lal AIR 1964 Allahabad 542 it has been held as follows:- “Before July 1942, the plaintiff and his brothers were proprietors of the shops; and Hargu Lal was the …7… tenant of the shops. On 2.7.1942 Hargu Lal purchased the proprietary right in the shops under the sale deed ( Ex. 1). Since the interests of the lessor and the lessee in the whole property became vested at the same time in Hargu Lal, the principle laid down in Section 111(d) Transfer of Property Act fully applies. Upon execution of the sale deed (Ex.1), Hargu Lal’s former tenancy rights were extinguished.” 10. In Nalaakath Sainuddin v. Koorikadan Sulaiman (2002) 6 SCC 1, the facts were that property was owned by Kunhilakshmi alias Leelamma and others. One property was assigned two numbers i.e. Door No.6/481 and Door No.6/482 by local authority. One small corner of the shop has been assigned Door No.6/482 and remaining entire shop has been assigned Door No.6/481. In the year 1972 the Door No.6/482 was sub-let by appellant to respondent Koorikadan Sulaima. On 12.9.1988 the respondent purchased the entire property i.e. including both doors from then owners of the property. The respondent filed application before Rent Controller Court for an order directing the tenant to put the landlord in possession of the building on the grounds of bonafide need for his own occupation of the building, additional accommodation in occupation of the appellant for the landlord’s personal use. The Rent Controller Court allowed the petition on the ground of non-payment of arrears of rent. Both the parties filed appeals before Rent Control Appellate Authority. The appeal filed by the tenant was dismissed. The appeal filed by landlord was allowed partly. The tenant preferred revision before the High Court. The landlord did not prefer any revision. The High Court upheld the order of eviction on the grounds of …8… non-payment of arrears of rent under Section 11(2)(b) but rejected the claim of landlord under Section 11(8) to hold that order of eviction could be sustained under Section 11(3) of the Act. The tenant filed two petitions seeking special leave to appeal. The landlord has also filed two petitions seeking special leave to appeal against judgment of the High Court. On those facts the Supreme Court has held as follows:- “It is thus, clear that in a lease governed by the provisions of the TP Act or the principles emerging therefrom as applicable in India, the transfer of a part of leased premises by the owner in favour of the sub-tenant, holding sub-lease from the tenant, would result in merger. It will be a strange proposition to urge or to accept that although the respondent has purchased the reversion in the entire estate consisting of Door Nos.6/482 and 6/483 and the appellant has become the respondent’s tenant as to both the doors, still the respondent conatinues to be a sub-tenant of the appellant in respect of Door No.6/482. The respondent cannot be an owner and sub-lessee both and at the same time. The smaller estate of sub-tenancy shall sink or drown into the larger estate of ownership as the two cannot coexist. The sub-tenant i.e. the respondent, has not acquired only a share of the landlord- owner’s estate nor an ownership in part confined to sub- tenancy premises; what he has acquired under the deed dated 12.9.1988 is the full ownership in the entire premises. The right of reversion vesting in the then owners, so far as the appellant is concerned stands fully and entirely vested in the respondent. There is nothing to hold that the intention of the parties to the deed dated 12.9.1988 was not to effect a merger and confer the estate of owner on the sub –tenant (the respondent). …………..We are, therefore, of the opinion that on 12.9.1988 the sub-tenancy of the respondent held under the appellant to the extent of sub-leased premises terminated by merger and the respondent became the owner-landlord of the entire premises consisting of two doors”. …9… 11. The Section 47 of the Code of Civil Procedure provides that all questions arising between the parties to the suit in which the decree was passed relating to the execution, discharge or satisfaction of the decree shall be determined by the executing court and not by a separate suit. The question regarding the execution of the ejectment order which is to be executed like the decree of Civil Court is to be considered only under Section 47 of the Code of Civil Procedure and not by a separate Civil Suit. 12. The validity of sale deed dated 26.11.1981 of the shop in question in favour of the petitioners herein has been upheld by this court in RSA No.197/95 on 15.11.2010. The petitioners now have status equal to respondents as co-shares by virtue of sale deed dated 26.11.1981 of the shop in question in their favour. The petitioners are already in possession of the shop in question. In this situation in view of sale deed dated 26.11.1981 in favour of petitioners, it is not possible to hold that their status of sub-tenants prior to 26.11.1981 in the shop in question is still intact. On the contrary the petitioners are co- sharers in the property i.e. shop in question. The petitioners have purchased the entire lease property. The said lease is now no more in existence after 26.11.1981 and therefore, the ejectment order against the petitioners regarding the shop in question cannot be executed. 13. No other point was urged. …10… 14. The result of above discussion, the petition is allowed. The impugned orders as against the petitioners are set aside. It is held that ejectment order against the petitioners regarding the shop in question is not executable as they have purchased that very shop vide sale deed dated 26.11.1981. No costs. November 15, 2010 (Kuldip Singh), (sks) Judge.