JUDGMENT
Vinod K. Sharma, J.
1. This order will dispose of Civil Revision Nos. 1711 and 1712 of 1986 involving common questions of law and facts. For the facility of reference, facts have been taken from Civil Revision No. 1711 of 1986.
2. This revision petition has been filed against the order of ejectment dated 11.10.1984 passed by the Rent Controller, Amritsar, in a petition filed under Section 13 of the East Punjab urban Rent Restriction Act (hereinafter referred to as the ‘Act’) seeking ejectment of the petitioner-tenant on the ground that the demised shop has become unfit and unsafe for human habitation and that of the Appellate Authority dated 19.5.1986 dismissing the appeal filed by the petitioner.
3. The respondent-landlords claimed that Mohan Lal was a tenant under them @ Rs. 8/- (Rs. Eight) per month in the demised shop. It the case of the respondent-landlords that Tej Kaur and Mohinder Kaur sold their shares in the demised building in favour of Lakhbir Singh vide sale deed dated 1-6-1981. It was claimed that the respondent-landlords had earlier filed a suit for permanent injunction against the tenant and in that case the petitioner therein admitted that he was a tenant in the demised building under the respondent-landlords. It was, therefore, claimed that the respondent-landlords were entitled to file this application for his eviction. It was also the case set up by the respondent-landlords that as per judgment dated 24th April 1979 passed by the learned Sub Judge, 1st Class, Ajnala, Tej Kaur and Mohinder Kaur daughters of Pala Singh were held to be owners of the property left by Balwant Singh and Dalip Singh, sons of Pala Singh to the extent of 1/4th share each and Lakhbir Singh purchased the; said share vide sale deed dated 1.6.1981.
4. The ejectment was sought on the grounds of non-payment of rent w.e.f. 1.6.1981 till the date of filing of the petition and that the demised shop has become unfit and unsafe for human habitation. It was claimed that the roof of the demised premises was damaged and likely to fall at any time. It was also the case of the respondents that the cracks had appeared in the walls and the shop was in a dilapidated condition. It was also the case set up that the tenant has used the demised shop in such a manner that reduced its value and utility.
5. The petition was contested by the respondent-landlords on the plea that a question of title was involved and, therefore, the Rent controller has no jurisdiction to try the present petition. It was further claimed that the petition was bad for non-joinder of necessary party and that it was barred under Section 9 of the Code of Civil Procedure. However, it was admitted in the reply that the petitioner herein was tenant in the demised shop @ Rs. 8/- (Rupees eight) per month which is said to have been taken from Pala Singh who died and, thereafter, he became a tenant under his sons Balwant Singh and Dalip Singh. It was further claimed that the tenant had been giving rent to Balwant Singh, who died in the year 1969 and thereafter the tenant started giving rent to Parkash Kaur and Ranjit Singh, who are widow and son, respectively of Balwant Singh deceased. It was also claimed that the said shop has been sold in favour of Purshottam Lal. The arrears of rent were denied. It was asserted that the shop in dispute was quite fit for human habitation and, therefore, the dismissal of the eviction petition was prayed.
6. After filing of the replication, the petitioner-tenant tendered the rent under protest which was accepted by the landlords under protest. Thereafter following issues were framed:
1. Whether this Court has no jurisdiction to entertain this application? OPR
2. Whether the relationship of the landlord and tenant exists between the parties? OPA.
3. Whether the respondent is liable to ejectment on the ground as alleged in para No. 6 of the application? OPA
4. Whether the respondent has paid rent to Smt. Parkash Kaur, if so, its effect? OPR
5. Relief.
7. Issues No. 1 and 2 were taken up together. The learned Rent Controller on the basis of evidence came to the conclusion that the petitioner-tenant was inducted as a tenant by the grand father of the respondent-landlords, who stepped into the shoes of their grand-father Pala Singh and, therefore, recorded a finding that there existed relationship of landlord and tenant between the parties. The learned Rent Controller took note of the judgment in the case of Mathra Dass v. Smt. Ram Piari 1981 (2) R.C.R. 651 to hold that even one of the landlords could file a petition for ejectment. The learned Rent Controller also took note of the definition of the “landlord” as given in Section 2(c) of the Act to hold that for a person to be landlord, he is not required to be owner of the property in question. A person, who has no claim to the title of the property can also come within the definition of the “landlord”. The learned Rent Controller also came to the conclusion that the status of the word “landlord” does not visualise a single landlord, but also plural thereof. The learned Rent Controller further took note of the admission made by the petitioner-tenant in the civil suit which was disposed of on the basis of a compromise between the parties in which the tenant-petitioner relinquished the possession of the back portion of the shop in dispute in favour of the respondent-landlords and he further admitted himself as a tenant of the respondent-landlords in the shop in dispute.
7.1 The learned Rent Controller also took into consideration the rent eviction application filed earlier in which reply was filed by the tenant. The said application was also dismissed as a part of compromise between the parties and thus on the basis of oral and documentary evidence brought on record, the learned Rent Controller recorded a concurrent finding that there existed a relationship of landlord and tenant between the parties.
7.2 On issue No. 3 the learned Rent Controller on the basis of evidence of the expert Shri S.C. Vermani, came to the conclusion that the shop in dispute has become unfit and unsafe for human habitation. The expert in his report had stated that the walls were built in standard size pucca bricks laid in the mud mortar. Inside faces of the walls were un-plastered, but white washed. The left side wall of about one foot below the roof level was decayed and hollowed towards the side of the tenant and was in bad condition. The mortar used in the walls was said to have lost its adhesive power and strength. The roof was noticed to be consisting to brick tiles supported by wooden battens resting over one wooden beam in the centre. It was also reported by the expert that to support week roof, two horizontal steel girders have been inserted recently. It was also reported that one wooden beam towards left was still not embedded in the wall. The shop was said to be in bad condition. The top of the roof is said to be kacha with mud plaster. The wooden battens were noticed to have bent down with the load of tiles and earth. The tiles were also not in a straight flat position and the shop was said to be 50 years old. The ends of wooden battens were worn out. It was noticed that the petitioner-tenant had installed racks inside the walls by making holes in the walls and thereby the walls were damaged and weakened. It was in view of this report that the learned Rent Controller came to the conclusion that the disputed shop was in deteriorative condition and not fit and safe for human habitation as it needed reconstruction. The evidence led by the petitioner-tenant was not accepted in view of the evidence of building expert i.e. the expert and, therefore, on the basis of available evidence, the learned Rent Controller held that the building was unfit and unsafe for human habitation and it needs immediate reconstruction. Therefore, this was decided against the petitioner-tenant.
8. Keeping in view the fact that the rent had been tendered, issue No. 4 was held to be redundant.
9. In view of the findings recorded, the eviction of the petitioner-tenant was ordered.
10. The petitioner filed an appeal against the judgment passed by the learned Rent Controller. The learned Appellate Authority affirmed the findings recorded by the learned Rent Controller and the plea of the petitioner-tenant that the civil litigation was going on between the present landlords and other claimants of the property which has not become final, was not taken note of by observing that the learned Rent Controller or the Appellate Authority was not to decide the ownership of the property in dispute, but only the relationship of the landlord and tenant was required to be seen. The learned Appellate Authority, therefore, came to the conclusion that without expressing any opinion regarding title of the respondent-landlords in the property in dispute and without deciding as to who was the legal owners of the property in dispute, held that the relation of landlord and tenant qua the shop in dispute existed between the parties and thereby the findings of the learned Rent Controller were affirmed.
11. As. The learned Appellate Authority also affirmed the findings regarding the building being unfit and unsafe in view of the evidence of the expert, who appeared as PW-5. The learned Appellate Authority also noticed that the back portion of the shop in dispute had already fallen down a couple of months prior to the filing of the present eviction petition and, there was a compromise between the parties and the falling portion was surrendered by the tenant to Amrik Singh. The learned Appellate Authority, therefore, came to the conclusion that this fact also proved that the building was not in fit and safe condition and accordingly affirmed the finding recorded by the learned Rent Controller and ordered the eviction of the petitioner-tenant.
12. Mr. M.L. Sarin, learned Senior Counsel, appearing on behalf of the petitioner, has challenged the findings recorded by the learned Courts below on the question of relationship of landlord and tenant. It was pointed out by the learned senior Counsel for the petitioner that the suit filed by Amrik Singh claiming himself to be owner in possession against Ranjit Singh and Parkash Kaur was ordered to be dismissed on 16.9.1983 though in the appeal, the plaintiff Amrik Singh withdrew the suit. However, no permission was taken to file a fresh suit on the same cause of action.
13. The contention of the learned senior Counsel for the petitioner, therefore, was that because of the dismissal of the suit, Amrik Singh could not be said to be owner of the property in dispute. He further pointed out that another suit filed by Amrik Singh in which the petitioner-tenant was also a party was dismissed on 10.02.1987 and the judgment and the decree was placed on record as Exhibit R-5. The argument of the learned senior Counsel for the petitioner was that once the suit filed by the respondent-landlords claiming declaration and ownership was dismissed, it could not be said that they were owners of the property and, therefore, the findings recorded by the learned Rent Controller as affirmed by the Appellate Authority cannot be sustained.
14. Learned senior Counsel for the petitioner also contended that there was no evidence of tenancy and in absence of any evidence, the learned Courts below committed an error in deciding issue Nos. 1 and 2 against the petitioner-tenant.
15. It was also the contention of the learned senior Counsel for the petitioner that even if the respondent-landlords are treated to be the co-owners of the property, it was not open to one of the co-owners to file the eviction petition-without the consent of others. This plea is based on the fact that during the pendency of the petition, the son of the petitioner is said to have purchased the share of one of the co-owners and, therefore, it was claimed that he being one of the co-owners, has not given his consent. Therefore, the petition was not maintainable.
16. The learned senior Counsel for the petitioner on merits contended that the findings of the learned Rent Controller and the Appellate Authority on the building being unfit and unsafe cannot be sustained, as in the present case, the learned Rent Controller had himself visited the demised premises on an application made by the petitioner and had recorded in his report that the shop was in good condition and, therefore, the same could not be said to be unfit and unsafe for human habitation.
17. The learned senior Counsel for the petitioner also contended that the evidence of the expert which went contrary to the report of the learned Rent Controller could not be taken into consideration for recording a finding that the shop has become unfit and unsafe for human habitation.
18. The learned senior Counsel for the petitioner also contended that the present petition for eviction was not competent as the petition filed by the respondent-landlords is opposed by Purshottam Lal, who is a subsequent purchaser from a co-sharer of the property in dispute. The contention of the learned senior Counsel was that though one of the co-sharers can maintain the petition, however, the same was not competent if the same is opposed by other co-owner. In support of this contention he placed reliance on the judgment of the Hon’ble Supreme Court in the case of Smt. Kanta Goel v. B.P. Pathak , wherein in para 7, it has been held as under:
This Court, in Sri Ram Pasricha clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is: “Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property…. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is, therefore, not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants.” That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner.
19. Mr. J.R. Mittal, senior Counsel appearing on behalf of the landlord-respondents, however, supported the judgment and decree passed by the learned trial Court as affirmed by the learned Appellate Authority primarily on the plea that the contention of the petitioner qua the ownership cannot be the subject matter of the present petition as the learned Rent Controller as well as the Appellate Authority were not required to go into the question of title, but were to decide about the relationship of the landlord and tenant only on the basis of available evidence brought on record.
20. Learned senior Counsel for the respondents next contended that the Courts below are right in holding that the building was unfit and unsafe for human habitation on the basis of evidence brought on record especially the expert witness and the contention of the learned senior Counsel for the petitioner that in view of the inspection note of the learned Rent Controller, the other evidence cannot be looked into, could not be accepted. In support of this contention, he placed reliance on the judgment of this Court in the case of Kailasho Devi v. Chhabi Parkash , wherein it has been held as under:
7. A perusal of the above extracted rule shows that the Court is entitled to inspect the demised premises at any stage of a suit. It also imposes an obligation on the court that it must make a memorandum of any relevant facts observed by it, at any stage of inspection which shall form a part of the record of the suit. Rule 18 of Order XVIII of the code came up for consideration of the Supreme Court in the case of Ugam Singh v. Kesrimal where the Supreme court has recognised the power of the Court to inspect the demised premises at any stage for the purpose of appreciating evidence. It has also been held that inspection can be undertaken only if there is some confusion created by the evidence already adduced. Therefore, it is only in cases of confusion or to appreciate the evidence in a better way that the Court is required to undertake inspection. The Court cannot base its judgment solely on the basis of inspection note recorded by it.
8. When the aforementioned principles are applied to the facts of the instant case, it is revealed that Shri Parshottam Singh, Sub Divisional Officer AW-4 was examined as an expert by the landlord-respondent and he proved his report Ex. A1. No cross-examination was conducted by the tenant-petitioner on the report proved by Shri Parshottam Singh or his statement made before the Court. The report Ex. A-1 and the testimony of the expert has proved beyond doubt the dilapidated condition of the demised premises. There was hardly any need for the Court to undertake inspection because the expert witness clearly stated about the condition of the demised premises and there was hardly any confusion. Moreover, the Appellate Authority has not completely discarded the inspection note prepared by the Rent Controller. The Appellate Authority has pointed out various features of the inspection note on which it is silent. For example, the inspection note does not disclose that how the Rent Controller has recorded that there were no holes in the roof as the inspection note does not say that the learned Rent Controller himself went on the roof. Similarly, the inspection note is silent about the fitness of wooden sleepers on which the roof has been laid, whereas the expert has pointed out that the hollowness of the sleepers was evident when he checked the same with the help of a rod. The Appellate Authority has, thus, taken the inspection note into consideration and then has reached the conclusion that the demised premises is unfit for human habitation, although it may not be unsafe. Therefore, I do not find any legal infirmity in the findings recorded by the learned Appellate Court.
21. After hearing learned Counsel for the parties, I find no force in this revision petition.
22. The contention of the learned senior Counsel for the petitioner that respondents I had failed to prove their ownership has rightly been rejected by the learned Courts below by holding that in order to maintain a petition for eviction, it is not necessary for the landlord to show his title to the property. The petition for eviction is competent in case there is a relationship of landlord and tenant between the parties.
23. The contention of the learned senior Counsel for the petitioner that there is no evidence of tenancy is contrary to the record. As a matter of fact, evidence was brought on record to show that there, existed the relationship of landlord and tenant between the parties as in the suit for injunction filed by the respondent-landlords against the petitioner-tenant, there was a clear admission of tenancy with Pala Singh and, admittedly, the property owned by Pala Singh has been inherited by the respondent-landlords.
24. The contention of the learned senior Counsel for the petitioner that the present revision petition deserves to be accepted for want of consent of Purshottam Lal, also cannot be sustained. The authority relied upon by the learned senior Counsel for the petitioner in Smt. Kanta Goel’s case (supra) does not support the case of the petitioner as in the said judgment, it has categorically been held that one of the co-owners is competent to maintain the eviction petition. In the present case the petitioner had admitted his tenancy in the suit for injunction. The alleged co-owner has also not moved any application to oppose the petition.
25. The contention of learned senior Counsel for the petitioner that the Hon’ble Supreme Court has not answered the question as to what would be the position if one of the co-owners opposes the eviction petition, has also been answered in the negative in view of the law laid down by the Hon’ble Supreme Court in the case of T. Lakshmipathi v. P. Nithyananda Reddy , wherein the Hon’ble Supreme court has been pleased to law down as under:
Andhra Pradesh Buildings (lease, Rent and Eviction) Control Act, 1960, Section 10(2)(i) – Transfer of Property Act, Sections 111(d), 105 – Evidence Act, Section 116 – Merger of tenancy rights with ownership-Joint property of seven co-owners – Co-owner who was in possession (landlord) inducting tenants with consent of others – Five of the co-owners selling their undivided shares to tenants. Tenants acquired only partial interest in property – Their tenancy would not merge with ownership – They were estopped from denying ownership of co-owner (landlord) who inducted them – Co-owner entitled to evict tenant even though they acquired partial interest in property.
26. The Hon’ble Supreme Court in the case of Sant Lal Jain v. Avtar Singh , has been pleased to lay down that the licensee is bound to hand-back the possession to the landlord on termination of licence and cannot retain possession on the basis of title alleged to have been subsequently acquired. Para 8 of the said judgment reads as under:
The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case, there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession.
27. In the present case it is not disputed that Parshottam Lal had failed to claim his right and, therefore, it was not open to the petitioner-tenant to claim any benefit of purchase of the property by Parshottam Lal. The concurrent findings regarding the demised shop being unfit and unsafe also deserve to be upheld, as the contention of the learned senior Counsel for the petitioner that in view of the inspection note prepared by the learned Rent Controller, the evidence of expert could not be looked into, cannot be sustained in view of the law laid down by this Court in Kailasho Devi’s case (supra).
28. In view of what has been stated and discussed above, there is no merit in these two revision petitions, which are, accordingly, dismissed with no order as to costs.