Revised tenant-challenged eviction based on changed user and subletting. Court found changes in property usage and subletting occurred without landlord consent. Tenant’s purchase of a share from one co-owner did not bar eviction as merger doctrine inapplicable when all heirs proceed jointly.
Tenant ordered to surrender possession within four months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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C.R. No.3212 of 1994
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
C.R. No.3212 of 1994 Date of Decision.04.09.2012
Onkar Nath Jagpal r/o H.No.1318, Sector 15-B, Chandigarh
.....Petitioner
Versus
Daropti Devi w/o Roshan Lal, 119, South Avenue, New Delhi
.....Respondent
Present: Mr. M.L. Sarin, Senior Advocate with Ms. Hemani Sarin, Advocate for the petitioner.
Mr. Amit Jain, Advocate with Mr. Jaivir Chandel, Advocate for the respondent.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
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K. KANNAN J.(ORAL)
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the petitioner-tenant would contend that the property had been granted on lease orally in the year 1975 and there had been no change in user of the premise at all. According to him, the property was let for his residential use as well as for the purpose of running a clinic as a doctor. The rent, which was originally Rs.600/- was gradually increased and when the first floor was also constructed, it was raised to Rs.1200/-. According to him, there was no basis for the land lady to contend that there had been any change of user. Adverting to the reasoning of the Appellate Court that there had been a change of user, the learned counsel would contend that the burden of proof was always on the land lady to contend that there had been such a change without the written consent. In this case, admittedly, the tenancy was oral and there was nothing to show that the property had not been originally let out for residence as well as for running his clinic. The initial letting itself had been for both the purposes and the land owner cannot make an issue of the fact that when a local commissioner appointed, he also found that the tenant was having a clinic in the residential premises. A change of user in order that is actionable shall be only in situations where the initial letting was for a particular purpose and there had been a conversion without the concurrence of the land lady during the course of tenancy. In this case, according to the learned Senior Counsel, the initial letting itself was both for residential as well as for running a clinic and therefore, there was no case of change of user.
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visited his premises now and then and he never lost exclusive possession of the property to his brother-in-law. Evidence had been let in by the land lady as regards the alleged subletting by showing a circumstance before the Court that the tenant had actually shifted to Delhi and in proof of the same, evidence was brought to the effect that he had surrendered his gas connection and had it shifted to Delhi and he had also obtained transfer certificate for his children by withdrawing them from school where they were studying at Chandigarh. The learned Senior Counsel would contend that the transfer of gas connection had no bearing at all that he had shifted to Delhi, for it was merely a case of tenant attempting to start a business in Delhi and he had never shifted to Delhi wholesale. The children were indeed taken out of Chandigarh for a short while but they did not last long and they came back to Chandigarh within a very short time. The fact that the children were put in some other school could not be a ground to suspect that the tenant had shifted base to Delhi, abandoning the property and putting it up in the hands of the sub tenant. The learned counsel would make an issue of the fact that the local commissioner who was appointed has brought out in his report that the tenant himself continued in possession, was also having a clinic in the same premises and he did not find the presence of the alleged sub tenant.
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them had sold the property and such sale ingested in the tenant a status of co-owner of the property along with the remaining land owners and the remedy of the land lady would only be to sue for partition and filing an ejectment action in respect of the property which is allotted in partition. Substantial case law had been submitted in support of these contentions.
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admittedly, there had been no written instrument for creation of lease initially in the year 1975. The tenant wanted to contend that he had been a registered medical practitioner even from the year 1973 and seeks to file the document as an additional document for consideration. This is to probablise his contention that the premises initially let out also for the purpose of running his clinic. No reasons were given as to why this document was not produced before the Courts below. The fact that he had been a legal practitioner itself is not in dispute. The point of contention is whether the letting was also for the purpose of running a clinic and when the land lady was contending that the letting was only for residential purpose and adduces evidence therefor by her assertion, the onus would shift to the tenant to refute the contention and bring to proof such of those contentions, which are capable of being proved through documentary evidence. In this case, the tenant admitted that there was a patient register. The tenant admitted that when an additional floor was constructed, he had secured a written consent of the land lady for continuing to use the premises also for the purpose of running his clinic. Neither the patient register nor the alleged written consent of the land lady said to have been given to him was produced at the trial. The land lady's assertion could have been shown to be false by a simple production of evidence that the tenant was running a clinic even from the year 1975. Running a clinic cannot be a secret affair. The doctor, who attends to patients ought to be visible to the patients in place where he conducts the profession. Attendance of patients, fee receipts, stocking of dispensing medicines, purchase of minimal medicine for dispensation would have all provided sufficient grist to the
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mill for a tenant. Although I would find that the burden was always on the land lady to prove the change of user when an assertion is made that the letting had been only for residential purpose, non production of documents which are relevant for a tenant to contend that there existed a clinic even at the time of initial letting ought to be taken as a serious lapse that would require an inference to be drawn that the tenant was unable to produce certain documents which ought to have been in his custody if his contention were true. It can never be contended that the land lady herself had filed the case only in the year 1986 for an alleged different user of the property in the year 1977 and that therefore there was an acquiescence by the land lady. The requirement in law for the change of user is written consent. The tenant, therefore, cannot contend that by the fact that the land lady resorted to action for eviction only 8 years later as lending credibility to his contention that the land lady knew at all times that the tenant was using the property also for running a clinic. I affirm, therefore, the finding of the Rent Controller and the Appellate Authority that there had been a change in user of the construction without the written consent.
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The local commissioner is said to have elicited information from one J.B. Seth, who told him that Mr. Nanda was away at Rohru, Himachal Pradesh and was expected to return in the night. The report also states that Nanda had sent his family to Sector 22, Chandigarh. He found the premises at the first floor locked. The report itself can be used for no purpose other than the fact that the first floor was found locked and we will have to look to other evidence whether the land lady's contention of subletting with reference to first floor was established through other evidence. The land lady relied on certain circumstances namely that the tenant had obtained a transfer of gas connection and had withdrawn the children from the school and admitted them elsewhere at Delhi. The transfer of gas connection or the fact that the children were withdrawn from the school itself is not denied. At the time of trial, the tenant went as far as to deny completely that he had shifted to Delhi and that his children were also admitted in the school. There was, however, a halting admission on the part of Nanda as RW-3, when he said that "the respondent shifted his children to Delhi some time for 10 days. I do not know whether at any stage he shifted his children for education purpose at Delhi. I do not know whenever respondent along with his children went to Delhi, place where he stayed. He might be staying with his other brother-in-law, who lives there." He was definitely trying to conceal some truth. It is impossible that the brother-in-law, who visited the tenant regularly would not know whether he had shifted his children for education purpose to Delhi. Elsewhere in the same crossexamination, he had also stated that his gas connection was also shifted but he would volunteer information that the tenant had two-three gas
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connections. Learned counsel appearing on behalf of the respondentland lady contends that if there had been really a case that the tenant having more than one connection, it was necessary for him to show the existence of other connections. I would also find that the best evidence of what the tenant could have produced that he had other gas connections and that a temporary shift of one gas connection to another place would not be taken as material, was not placed before the Court. The same way the fact that the children were taken from school in Chandigarh and shifted to Delhi was itself not disputed by the learned Senior Counsel arguing for the tenant. He was only trying to contend that if the children were shifted for short time away and brought back to Chandigarh, it ought not to be taken as establishing a case of sub tenancy. The important ingredient for sub tenant, according to the learned Senior Counsel, would be the handing over of physical possession of the premises. So long as he continued in possession, which the local commissioner's report itself established, he could not be said to have sublet the premises to the sub tenant. The subletting of what becomes actionable under the Act is not merely the creation of sub tenancy with reference to the whole of the property, it could be also with reference to a portion thereof. Consequently, it was not necessary for the tenant to completely shift out of the premises. If he had even allowed for ceding of possession to a portion of the whole property, it will still amount to an actionable wrong that would visit the tenant with consequences of eviction. That precisely was the case of the land lady contending that the first floor of the premises had been occupied by the tenant and the tenant had vacated the premises leaving it in the hands
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of the sub tenant exclusively.
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version was put to cross examination. Learned Senior Counsel would contend that the issue of subletting would also require to be established only by the land lady and the failure of the sub tenant to show that he was residing elsewhere ought not to be understood as proving that there had been actually a sub tenancy. It is clichéd in legal parlance that a sub tenancy remains in secrecy and direct evidence is seldom possible. In this case the admitted events of the tenant's brother-in-law vacating his tenanted premises held in occupation till 1987 and shifting elsewhere made possible for the sub tenant to show that he had taken possession of some other premises during the relevant time. If he was not prepared to produce the document which he ought to have in his custody during the trial, the inference was surely possible that the tenant and subtenant were trying to conceal the truth. They were close relatives and the Rent Controller and the Appellate Authority were justified in making an inference that there had been a subletting of the premises, which was concealed by the tenant. I, therefore, confirm the finding of the Courts below that there was a case of subletting as well.
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Court in Jagdish Dutt Vs. Dharam Pal 1999 (1) RCR 466 where the Court held that the purchaser of an undivided share from co-owner cannot claim to be in joint possession of the property with all other coowners. However, in a case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of possession because a joint decree holder can seek execution of a decree in the whole and not in part of the property. It was a case of a judgment debtor in possession coming by purchase of a share of the property from one of the decree holders, which the Court said would result in a situation of the decree becoming inexecutable. Learned counsel appearing on behalf of the land lady would point out to a factual case that the judgment debtor, who was possession, was referred to as a trespasser and not as lessee. Consequently, the Court's specific observation in para 6 of the judgment that the scope of Section 111(d) of the Transfer of Property Act which referred to a case of merger of interest was not required to be considered. I would uphold the objection and hold that this judgment cannot really answer the situation. On the other hand this point was specifically dealt with by the Supreme Court in M/s India Umbrella Manufacturing Company and others Vs. Bhagabandei Agarwala (dead) by LRs and others 2004(1) HRR 251 . It
was a case of two persons who were co-owners of the property, who had rented out the shops to tenants. One of the tenants purchased from one of the co-owners and resisted the action for eviction contending that by such purchase, he had himself become a co-owner of the property and therefore, he could not be evicted. Learned counsel appearing on behalf of the tenant Ms. Hemani wanted to distinguish this judgment by saying
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C.R. No.3212 of 1994
that it was a case of two land lords filing an action for eviction in respect of more than one tenancy and therefore, the judgment did not apply. The point of law, which is made in this case was that where property in dispute was owned by co-owners, any one of them could file a suit for eviction against the tenant or tenants on the basis that one coowner is an agent for the other co-owners. Such a co-owner could file a suit as an agent for the other co-owners whose consent would be presumed unless they showed their disagreement. In this case Daropti Devi was the landlord and she had prosecuted the petition in both Courts as well as in the High Court. On her death, the impleadment of all the legal representatives would result in a situation where tenant is compelled to attorn to all the legal representatives of the deceased landlord. The tenant cannot choose at his whim that he was prepared to recognize as his landlord only one of them and by purchase of a fractional share from such a person, plead a merger of interest. He cannot put an end to the status as tenant unless all co-owners consented to such course. In this case, after the death of the landlord Daropti Devi, the legal heirs were impleaded at their own instance and they were represented by the same counsel. One amongst them has sold the property to the tenant but at the time when the impleadment was made, they stepped into the shoes of the original landlord and their joint application is itself sufficient indication to hold that all the coowners consented to the prosecution of the petition. It was not as if the person, who had sold the property to the petitioner had not joined for impleadment in the petition. On the other hand vakalatnama held by the counsel appearing for the landlord was for all the legal heirs of the
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landlord as well. The transfer of property by one of them during the pendency of proceedings could not have made any difference. It is in this context that the Supreme Court held in M/s India Umbrella Manufacturing Company (supra) that where the suit was by two coowners against firm comprised of two tenant-partners, a transfer by one co-owner of his interest to one of the tenants during the pendency of proceedings, cannot allow the transferee to withdraw the suit. This is on the principle that he had purchased only a share and not the entire property. The doctrine of merger within the meaning of Section 111(d) of the Transfer of Property itself would not be attracted. Having regard to the judgment of the Supreme Court relating to how a tenant, who is a purchaser of fractional share from one of the co-owners cannot obtain merger of a larger interest, I do not want to cite other decisions referred to by the learned counsel for the tenant regarding the continuance of proceedings by one of the co-owners for ejectment against the tenant, who had become a co-owner by purchase during the pendency of proceedings. Any other judgment must conform to the law laid down by the Supreme Court in M/s India Umbrella Manufacturing Company (supra).
(K.KANNAN) JUDGE
September 04, 2012 Pankaj*
3 issues framed by the court
Whether the change in user of the leased property from residential purposes to running a clinic without written consent ground for eviction.
Whether the alleged subletting of a portion of the property to a brother-in-law established ground for eviction.
Whether a tenant purchasing a fractional share from one co-owner during pending eviction proceedings can avoid eviction by claiming merger of interest.
Colour shows how this judgement treated each authority
Jagdish Dutt Vs. Dharam PalDistinguished¶57
Jagdish Dutt Vs. Dharam Pal 1999 (1) RCR 466
M/s India Umbrella Manufacturing Company and others Vs Bhagabandei AgarwalaFollowed¶57
M/s India Umbrella Manufacturing Company and others Vs. Bhagabandei Agarwala (dead) by LRs and others 2004(1) HRR 251
Onkar Nath Jagpal
Daropti Devi
K. Kannan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
