ORDER
S.S. Sudhalkar, J.
1. The petitioner had filed a petition against Shanker son of Malka Ram Saini (having expired and represented by the present respondents) for eviction from the rented premises on the following grounds :
(i) non-payment of rent;
(ii) impaired materially the value and utility of the premises;
(iii) premises are unsafe for human habitation.
2. The eviction petition was allowed. However, the Appellate Authority allowed the appeal and dismissed the petition and hence this revision petition. Among the points raised before the Courts below, the following points were also considered.
1. Whether the appellant was a landlord;
2. Whether the possession of the respondent could be denied because of the agreement to sell made in favour of deceased-respondent by the husband of the present petitioner who was the original landlord.
3. Both these points along with the other grounds for eviction were decided in favour of the respondent by the Rent Controller. However, the Appellate Authority reversed the judgment of the Rent Controller on the following grounds :
“(1) Matadin was the original landlord. He had executed a Will bequeathing the suit premises on the appellant and there was a contest between the parties regarding the validity of the Will in which the learned Appellate Authority found that sitting as a Rent Court, it cannot go into the title between the parties. It also held that the agreement to sell was effected by the power of attorney of Matadin and there was dispute regarding the title between the parties because of the agreement.
4. After discussing the contents regarding the Will and the agreement to sell, the Appellate Authority observed as under :
“Be that it may, the aforesaid discussion would show that there is a bona fide contest of title between the parties which, I am afraid, cannot be effectively decided in the proceedings under the Act.”
5. Learned counsel for the petitioner argued that the respondent had no right to challenge the title of the landlord and has relied on Section 116 of the Indian Evidence Act. The said sections reads as under :
“116. Estoppel of tenant; and of licensee of person in possession:– No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”
6. In the present case Matadin was the original landlord. Petitioner is the widow of Matadin. Though she has claimed through a Will, she was also one of the natural heirs. In the light of the above facts, it will be appropriate to discuss certain judgments cited by learned counsel for the petitioner.
7. Learned counsel for the petitioner has cited the case of Smt. Rajinder v. Gopal Dass, (1992) 2 Ren CR 498. In the said case it has been held by this Court that tenant cannot challenge validity of Will as the Will can be challenged only by the heirs of testator or by any other person claiming share in the property.
8. Learned counsel for the petitioner has also cited the case of Joginder Singh v. Smt. Jogindero, (1996) 1 JT (SC) 467 : (AIR 1996 SC 1654). It has been held by the Supreme Court in that case that the tenants could not be permitted to deny or dispute the title of the owner. The Supreme Court has relied on its earlier decision in the case of Atyam Veeraju v. Pecheti Venkanna, AIR 1966 SC 629.
9. In the case of Joginder Singh v. Smt. Jogindero (AIR 1996 SC 1654) (supra) Smt.
Jogindero alias Gindo and Smt. Chhindo who are the plaintiffs are the daughters of Smt. Soman and according to the plaintiffs Smt. Soman made a gift of the alleged land in favour of the plaintiffs by a registered gift deed. Defendants Nos. 1 to 3 with the connivance of the revenue authorities got their own name mutated on April 17. 1967 in the revenue records and declined to admit the claim of the plaintiffs and, therefore, the plaintiffs instituted the suit for possession of the land. It was observed by the Supreme Court that there was no serious dispute by defendant No. 1 or 2 that they were not tenants under Smt. Soman in respect of the land in dispute and adduced no evidence in that behalf and that khasra girdawari Ex. P-6 clearly indicated that the deceased Suain Singh and Bur Singh were tenants under Smt. Soman with regard to the land in suit and this being the position the tenants could not permitted to deny or dispute the title of the owner.
10. Counsel for the petitioner has also cited before me the case of Sardarni Kirpal Kaur v. Bhagwant Rai, (1962) 64 Pun LR 717. It was held therein that where a gift of the demised premises is made by the landlord to his wife, the tenant cannot challenge the validity of the same on the ground that the landlord was not empowered to make the gift.
11. Learned counsel for the petitioner has also cited the case of Amar Singh v. Dalip, AIR 1981 Pun] and Har 237 (FB). This judgment is not applicable to the present case. It is held therein that the decision of the Revenue Court upon the relationship of landlord and tenant between the parties would not operate as res judicata and would be open to challenge in a subsequent suit or any other collateral proceedings between the parties.
12. Considering all the above authorities may not be necessary in this case, because the petitioner is widow of Matadin, the original landlord. Even if there was a Will or not, it cannot be disputed by the tenant that she was one of the heirs of the landlord. Moreover the Will is not shown to have been challenged by the other heirs and, therefore, Rent Court could decide the petition and could have decided the appeal on merit in this particular case. Therefore, I do not find it proper to uphold the observation of the lower appellate Court for not going into the question. The finding of the Rent Controller in this regard is, therefore, upheld.
13. Regarding the agreement to sell also, the Rent Controller had observed that the respondent had failed to prove his title regarding possession of the suit premises by virtue of the agreement to sell. Counsel for the respondent argued that he was already in possession as a tenant and in this agreement to sell his possession was established by the agreement and even if he was held to be a tenant of the petitioner, eviction order could not be passed. He has relied on the case of Joginder Singh v. Roshan Lal, (1980) 1 Rent LR 518. It has been held therein that the validity of sale cannot be gone into by the Rent Controller and the Controller to confine to the issue of bona fide necessity of landlord. It has been held therein that the transfer made by the original owner or landlord in favour of the present landlord is a bona fide one or not is immaterial. This case does not help the respondent at all. In the present case the document to sell which is marked “Y” has been got translated. There is no mention therein that the possession was handed over to the respondent or was deemed to have been handed over to the respondent or that his possession as a tenant was changed to that of a person under the agreement. On the contrary, there is a mention that the tenant shall continue to pay the rent regularly. It also mentions some other case filed against Matadin. It has been mentioned in the said document if the case is decided in favour of Matadin, then the second party shall get the sale deed executed from the first party. It is also mentioned that in case the Court in Its decision holds Laxmi Narayan (party in the other suit) entitled to the half share in the Haveli, the second party would not purchase the Haveli and in that eventuality, this agreement shall be treated as cancelled. There was, therefore, a dispute going on between Matadin and Laxmi Narain which was pending in the Court. It appears that in view of this position, there was an agreement that the respondent shall continue to pay the rent regularly.
14. Therefore, the execution of the document did not call upon the Rent Courts to decide the title of the present case. Suffice would it be to say that the possession was not given to the respondent as a result of the agreement to sell. Therefore, the execution of this document by no means can come in the way of the Rent Court because this agreement does not give any right of possession under the agreement. This agreement being the only agreement to sell does not confer any title. In view of this position, the respondent cannot be said to be not a tenant under the Rent Act.
15. It cannot be said that because of the agreement to sell the respondent has acquired any title or right of possession. This being the position both these points are decided in favour of the petitioner. However, it is found that the lower appellate Court has not gone into other points challenged in the appeal viz. (i) non-payment of rent; (ii) impaired materially the value and utility of the said premises, and (iii) premises being unsafe for human habitation. In view of the above, the petition deserves to be remanded to lower appellate Court to decide the above-mentioned points in accordance with law.
16. As a result, this petition is allowed. The judgment of the Appellate Authority is set aside. The case is remanded to lower appellate Court to decide the points mentioned above in accordance with law.