JUDGMENT
M.M. Kumar, J.
1. This is landlord’s petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, ‘the Act’) challenging judgment dated 23.2.1984 passed by the Appellate Authority, Hoshiarpur, whereby the view taken by the Rent Controller, Hoshiarpur in judgment dated 31.8.1982 has been reversed.
2. Brief facts of the case necessary for disposal of instant petition are that the land- lord-petitioner Raghbir Singh (now represented by his legal representatives) filed Case No. 130 of 1980 claiming that he has been owner of the demised shops which had vested in the Central Government being evacuee property. It was publicly sold on 4.7.1969 for a sum of Rs.l 1,500/- and he was declared the highest bidder. The sale was confirmed on 10.9.1969 in his favour and he paid the entire sale consideration on 29.9.1969. It was further asserted that a sale certificate was issued in his favour on 7.2.1975. It is claimed that at the time of sale of the demised shops, tenant-respondent Sansar Chand (now represented by his legal representatives) was the tenant under the Central Government at the rate of Rs. 24/- p.m. He claimed, that by operation of law, the landlord-petitioner became the new landlord in place of the Central Government and the tenant-respondent became his tenant on the same terms. It has been alleged that the tenant-respondent in league with the officials of the Punjab Wakf Board (for brevity, ‘the Wakf Board’) got a collusive suit instituted against himself by getting Union of India and State of Punjab impleaded as party defendant without impleading him as a party despite the fact that he was fully aware that the demised shop was already sold by the Central Government and purchased by the landlord-petitioner. It is claimed that the Punjab Wakf Board or the State of Punjab has got nothing to do with the demised shop. The aforementioned suit was decreed in favour of the Wakf Board and against the Union of India/Punjab State on 11.9.1975 and the appeal was also dismissed by the learned Additional District Judge on 18.4.1979. When the landlord-petitioner filed an application during the pendency of the appeal for being impleaded as party, the same was re jected. The landlord-petitioner sought eviction of the tenant-respondent on the principal ground of non payment of rent since 4.7.1969.
3. The tenant-respondent took the stand that he was in possession of only one shop adjoining the shop of Shri Faqir Chand. He claimed that his possession is under the Wakf Board who is a necessary party. He further asserted that the judgment and decree dated 11.9.1975 would operate as res judicata against the landlord-petitioner.
4. The Rent Controller found that the Wakf Board was not a necessary party as the demised shop could not be recorded as a Wakf property. After referring to the statements of various witnesses, the Rent Controller found that once the Wakf Board is not recorded as owner of the demised shops in the record of rights, nor the nature of the demised shops has been recorded as a Wakf property, then the Wakf Board was not a necessary proper party. After referring to Section 3(1) of the Wakf Act, 1954 (for brevity, the Wakf Act) and placing reliance on a judgment of this Court in the case of Panchayat Den v. Punjab Wakf Board Ambala and Anr., (1969)71 P.L.R. 1081, the Rent Controller observed as under:-
” As already indicated above, it has not been proved in this case that the dedication has been made by a person professing Islam. Thus, the demised premises rightly vested in the Central Govt. Since these shops had been auctioned in favour of the applicant and the sale certificate has been issued in his favour, therefore, it cannot be said that the demised premises is Wakf property…”
5. The Rent Controller further held that judgment and decree passed by the Civil Court dated 11.9,1975 and upheld in appeal on 18.4.1979 would not operate as res judicata with regard to the claim made by the landlord-petitioner because Additional District, Judge, Hoshiarpur in his order Exh.All has specifically made reference to his rights while rejecting his application for impleading him as party.Referring to the observations made by the Additional District Judge, Hoshiarpur, it has been pointed out that the land- lord-petitioner was granted liberty to file a suit claiming appropriate relief with regard to the property purchased by him which may be instituted against Sansar Chand tenant-respondent
6. The learned Rent Controller also held in paragraph 15 under issue No. 4 that the landlord-petitioner is the owner of the demised shops as it found that the property is not Wakf property because it has not been dedicated to public within the meaning of Section 3(1) of the Wakf Act nor it remained with the Central Government after its auction to the landlord-petitioner, On the aforementioned basis, the tenant-respondent was held to be the tenant of the landlord-petitioner as it was admitted that the tenant-respondent had been paying rent to the Central Government at the rate of Rs. 24/- p.m. The related argument that complicated question of title had arisen and it was not to decide such a question, the learned Rent Controller held that jurisdiction of the Rent Controller was not barred. On the basis of the aforementioned findings, the tenant-respondent was found to be in arrears of rent. The plea of the tenant-respondent that he was making payment of rent to the Wakf Board was rejected because no record was produced authenticating the receipt of rent by the Wakf Board. The receipt Ex.R3 relied upon by the tenant-respondent was not found to be a genuine document. It was concluded that the tenant-respondent had failed to tender the arrears of rent and had rendered himself liable to eviction and accordingly two months time was given to him to vacate the premises.
7. On appeal filed by the tenant-respondent, the learned Appellate Authority set aside the order of the learned Rent Controller by concluding that a complicated question of title had arisen which was required to be adjudicated upon by the Civil and not by the Rent Controller. The operative part of the order passed by the Appellate Authority reads as under:-
“9. Shri Raghbir Singh can become landlord qua Shri Sansar Chand if it is held that the property was validly transferred in his favour. But if it is found that it was Wakf property and it could not be transferred in his favour then there is no question of relationship of landlord and tenant coming into existence. It is not a pure and simple case of denial on the part of the tenant as if inducted by Raghbir Singh himself. Had it been so, the Rent Controller would have been fully competent to determine this question. But from the above discussion it appears that the question of title is seriously involved and that would ultimately form basis for creation of relationship of landlord tenant between the parties. The evidence of Wakf Board, in the eye of opposite party, may not be strong enough to return findings in its favour. But the point for determination involved at present is that a complicated question of title has arisen and it must be determined by a civil court and not by the Rent Controller.
In 1980 Current Law Journal (Civil) 123 Beant Singh v. Harbans Kaur, a similar question arose. Out of three daughters of a landlord one had set up a will and the other had sold her l/3rd share in favour of the tenant. Our Hon’ble High Court was pleased to hold that the Rent Controller had no jurisdiction to decide the question of Will and a civil Court alone is competent to do the same.
Earlier in (1968)70 Punjab Law Reporter 978, M/s Kharaiti Ram Bansi Lal and Ors. v. Radha Rani and Anr., our Hon’ble High Court was pleased to hold that if while determining the question of title the Rent Controller comes to the conclusion that he cannot decide it without determining the complicated question of title, he will, in that event, stay his hands.
10. Applying the test laid down by the aforesaid authorities, I am inclined to hold, that it is a fit case in which it can be said that a complicated question of title is involved. The relationship between parties cannot be determined without determination of title first.”
8. When this petition came up for arguments on 13.11,2002, learned counsel for the parties had pointed out that the instant petition deserves to be heard along with R.S.A. No. 208 of 1987 because in the aforementioned appeal, the question of title of the landlord-petitioner was pending consideration. The Punjab Wakf Board in the aforementioned appeal had claimed the proprietary rights of the demised shop. By a separate order passed today in RSA No. 208 of 1987, the claim of the Wakf Board has been re- jected by affirming the view taken by both the Courts below. It has further been held that the landlord-petitioners had acquired the proprietary rights on 29.9.1969 when he deposited the sale consideration of the confirmation of auction sale by the Central Gov- ernment in his favour on 10.9.1969, although the sale certificate was issued to the landlord-petitioner much later i.e. on 9.2.1975,
9. Mr. Parven Kumar,learned counsel for the landlord-petitioner has pointed out that once the landlord-petitioner has been found to be owner of the demised shop in Regular Second Appeal No. 208 of 1987, then the question of title becomes insignificant and the judgment of the Appellate Authority on that issue does not remain operative because the learned Appellate Authority has merely concluded that a complicated question of tile was involved which the learned Rent Controller was not competent to decide and the relationship between the parties could not be determined without first determining the question of title. The learned counsel has argued that there is evidence on record showing that the tenant-respondent has been paying rent to the Central Government till 1959. He has referred to the statement when he appeared as RW-1 at page 161 of the record of the Rent Controller. The learned counsel has also pointed out that there is a collusion between the Wakf Board and the tenant-respondent because in Civil Suit No. 20 of 1971 instituted on 2.1.1971 filed by the Wakf Board against Union of India, State of Punjab and the tenant-respondent were impleaded as party(s) in support of his submission, the learned counsel states that till date, the decree dated 11.9.1975 has not been executed which shows collusion between the tenant-respondent and the Wakf Board. According to the learned counsel, Union of India in the aforementioned suit has denied the owner- ship of Punjab Wakf Board in respect of the suit property. He has drawn my attention to paragraph 4 of the judgment dated 11.9.1975 Ex.Rl. In support of his submission, he argued that categorical stand has been taken by Union of India in “that suit for apparent reason that it has already sold the property in open auction to the landlord-petitioner.
10. He has then referred to paragraph 9 of the judgment of Appellate Authority where it has opined that the landlord-petitioner could become the landlord qua the ten- ant-respondent if it was held that the property was validly transferred in favour of the landlord-petitioner. He has pointed out that this Court has now affirmed the view taken by the learned Additional District Judge in Regular Second Appeal No. 208 of 1987 and the appeal of the Wakf Board stood dismissed which means that the landlord-petitioner became owner on 29.9.1969.
11. Mr. Sanjay Majithia, learned counsel for the tenant-respondent has argued that the learned Appellate Authority has relied upon a Gazette notification dated 1.1.1972 Ex.R4 issued under Section 5 of the Wakf Act, 1954 declaring the disputed property to be the Wakf property. The learned counsel has submitted that the aforementioned notification is still in existence and due effect has to be given to the aforementioned notification. The learned counsel has then submitted that there are receipts issued by the Wakf Board placed on record showing the payment of rent by the tenant-respondent to the Wakf Board. He has drawn my attention to Ex.R3 and the statement made by Mohd. Liakat RW-2 who had issued that receipt. Therefore, it must be held that the tenant-respondent is a tenant under the Wakf Board who is the owner of the demised shops according to the notification. The learned counsel has also made an attempt to submit that the tenant-respondent has been paying the rent to the Wakf Board and, therefore, no relationship between landlord-petitioner and tenant-respondent exists attracting the provisions of the Act.
12. I have thoughtfully considered the submissions made by learned counsel for the parties and am of the view that this petition deserves to be accepted because the learned Appellate Authority has set aside the findings recorded by the learned Rent Controller on the basis that a complicated question of title was involved and the learned Rent Con- troller was not within its jurisdiction to decide such a question. However, that question now stands decided in Regular Second Appeal No. 208 of 1987 decided today i.e. 18.8.2004 holding that the landlord-petitioner became the owner of the demised shop on 29.9.1969. Once the landlord-petitioner has been held to be the owner, then by operation of law, he would assume the character of landlord and the tenant-respondent has to be regarded as tenant. The landlord-petitioner was a successful bidder of the demised shops in a public auction held on 4.9.1969 (Ex.AlO) and the same was confirmed in his favour on 10.9.1969. The landlord-petitioner deposited the sale proceeds with the competent authority on 29.9.1969 (Ex.All) and a sale certificate in his favour was issued on 7.2.1975 (Ex.A9).Accordingly, the landlord-petitioner became entitled to recover the rent from the tenant-respondent and in case the payment of rent was not made, then he was further entitled to seek his eviction on the ground of non payment. It has been found by the learned Rent Controller that the tenant-respondent has been in arrears of rent since 4.7.1969. On a plain reading of Section 2(c) of the Act, every person who de- rives title under a landlord from time to time is also regarded as a landlord. It has been held by High Court in Puranchand Chimanlal v. Anandi Bai Kaluram, 1977(2) R.C.J. 822 that once the evacuee property has been purchased by another person, the vendee would become entitled to acquire the status of landlord and the rent payable to the vendor i.e. the Department of Rehabilitation would become payable to the vendee.
13. The argument of the learned counsel that there is a notification issued in favour of the Wakf Board dated 1.1.1972 Ex.R5 which has been issued under Section 5 of the Wakf Act, would loose its attraction if it is remembered that nothing survived in the hands of the Central Government after the property had vested in the landlord-petitioner. In Regular Second Appeal No. 208 of 1987, it has already been held that the landlord- petitioner acquired proprietary rights on 29.9.1969 when he deposited the entire sale consideration after confirmation of sale on 10.9.1969. It is, thus, evident that nothing remains to be transferred under Section 5 of the Wakf Act on 1.1″. 1972 to the Wakf Board and, therefore, I have no hesitation in rejecting the aforementioned argument,
14. It may further be observed that an attempt was made to argue that on account of law laid down in Rakesh Wadhan and Ors. v. Jagdatnba Industrial Corporation and Ors., (2002-2)131 P.L.R. 370, the tenant-respondent is entitled to an opportunity for payment of rent. It was suggested that since no provisional order of assessment of rent has been drawn by the Rent Controller, the tenant-respondent deserved to be granted an opportunity for depositing the arrears of rent. However, I am not impressed with the argument raised because this Court has taken a consistent view that in cases where the tenant disputed the relationship between the parties, then no order of assessment of rent is required to be framed because it would be a futile exercise because the tenant cannot be expected to pay rent to some one to whom he did not regard his landlord. The aforementioned view has been taken by this Court in the case of Ramanand Shastri v. Gain Singhfi, 2003(3) Civil Court Cases 62 and Hukma Devi v. Bhagwan Doss, (2003-2)134 P.L.R. 771. Therefore, I have no hesitation in disagreeing with the suggestion made.
15. For the reasons sated above, this petition is allowed and the judgment of the Appellate Authority dated 23.2.1984 is set aside and that of the learned Rent Controller is restored. The ejectment petition of the landlord-petitioner filed under Section 13(2)(i) of the Act is allowed because the tenant-respondent is in arrears of rent and failed to deposit the same. The tenant-respondent is directed to hand over vacant possession of the demised shops to the landlord-petitioner within a period of three months from today. In case the possession is not handed over, the landlord-petitioner shall be entitled to execute the instant order of ejectment passed by this Court.