Bhagwant Rai vs Smt. Kirpal Kaur

J.V. Gupta, J.—The tenant petitioner has filed this revision petition against the order of the Appellate Authority, Patiala dated 16th October, 1975, whereby the order of the Rent Controller directing his ejectment has been maintained.

The landlady-respondent filed an application for ejectment of his tenant from the premises known as ''Sarai Albel Singh'' situated out side Lahori Gate, Patiala, on the ground inter-alia of subletting to various sub-tenants. Briefly stated Kirpal Kaur, the landlady got the premises from her husband Kuldip Singh, who had already rented out the premises to the tenant Bhagwant Rai, vide lease-deed dated 3rd June, 1957, Exhibit AW6/1 for one year, i.e. from 12th May, 1957 to 11th May, 1958 on the annual rent of Rs. 3300/-. She also asserted that by virtue of gift deed dated 29th July, 1957 by her husband Kuldip Singh in her favour, she became the owner of these premises and Bhagwant Rai tenant. She also asserted that the tenant had sub-let these premises to various persons without her consent and thus was liable to be evicted.

In the written statement filed on behalf of the tenant it was pleaded that the premises in dispute firstly were under Court of Wards and he was the tenant at the annual rent of Rs. 2850/- and thereafter after the release of the property from the Court of Wards he became the tenant of Shri Kuldip Singh at the rate of Rs. 3,300/- per year. With regard to the subletting it was contended that the terms of the tenancy permit him to sublet the same. It was also asserted that previous applications of the landlady were dismissed and she never pleaded the ground of subleting for his ejectment and, therefore, the present application was not competent and was barred on the principles of estoppel and constructive res judicata. It was further contended that the premises were already occupied by the tenant since the inception of the tenancy and that he continued to occupy it on the same terms and conditions as given in Exhibit AW6/1, which clearly provide for subletting thereof. Besides that the very nature of the building being ''Sarai'' implies that it is meant for letting out to others for their stay. On the pleadings of the parties the Rent Controller framed the following issues:

Whether there exists relationship of the landlord and tenant between the parties?

Whether the respondent has sublet almost the entire building to various persons, if so, to what effect?

Whether notice u/s 103 of the Transfer of Property Act is necessary to be served, if not, its effect?

Whether this application is not maintainable and is barred as alleged in paras 5 and 6 of the written statement?

Whether the respondent is estopped from challenging the relationship of landlord and tenant between the parties?

Relief.

All the material issues were found in favour of the landlady and it was held that the tenant was not entitled to sublet the premises to the various persons, and therefore, was liable to be ejected on this ground and consequently the order of ejectment was passed against the tenant-petitioner. In appeal this finding of the Rent Controller has been maintained. Feeling aggrieved against this the tenant has come up in revision to this Court.

Learned counsel for the petitioner vehemently contended that it has been wrongly held by the Appellate Authority that the tenant has sublet the premises without any written consent of the landlady. According to the learned counsel it was agreed between the parties on 16th August, 1962 that the tenant will continue on the premises on the old terms and conditions as given in Exhibit AW/1, dated 3rd June, 1957. Admittedly under the terms and conditions of that lease deed that tenant was authorised to sublet the premises. Moreover, from the nature of the premises, it being ''Sarai'' consisting of 12 shops and 29 small rooms, it cannot be said that the tenant was to occupy all these himself. As a matter of fact, the whole building is meant for the purpose of subletting to various tenants. According to the learned counsel, after the the agreement dated 16th August, 1962, the tenancy was from month to month and the terms and conditions governing the said tenancy were the same as given in Exhibit AW6/1.

On the other hand learned counsel for the landlady submitted that under the terms and conditions of the lease deed Exhibit AW6/1, the tenant was authorised to sublet the premises only for one year, i.e., from 12th May, 1957 to 11th May, 1958 and any subletting thereafter was not permitted unless there was a consent from the landlady in writing. According to the learned counsel even if it may be taken that one year will start from 16th August, 1965, when the parties entered into a compromise, even then the subletting thereafter was not permitted, and therefore, the tenant was liable to ejectment on this ground. Since both the authorities below after going through the evidence and various documents have concurrently found that the tenant is liable for ejectment on the ground of subletting, the same should not be interfered with in this revision petition.

I have heard the learned counsel for the parties and have also gone through the pleadings as well as their statements before the Rent Controller. In the ejectment application the landlady stated that the tenant has, without the consent in writing of the landlady, sublet almost the entire building to various sub-tenants, who are occupying different portions of building at different rates and, therefore, the tenant is liable to ejectment. In reply to this para it was stated that the term of tenancy permitted him to do so. It was further pleaded that the landlady and her husband knew about the subletting since the inception, but no objection to it was raised and thus they consented and that the landlady filed number of applications earlier but did not take up and press this plea of subletting, she is debarred and estopped now from taking this plea. The tenant took the property from the Court of Wards, when it was already occupied by the tenants, who continued to occupy it. This building by its nature is a ''Sarai'', i.e., a building meant for letting out to others for stay and it is implicit in the lease itself that the property is being leased out for purposes of subletting. In the replication filed it was stated that there was no lease deed permitting the tenant to sublet the property after 11th May, 1958.

It is the common case of the parties that in an earlier application for ejectment filed on behalf of the landlady against the tenant, the matter was compromised on the statement of the parties. Certified copy of the statements made by Smt. Kirpal Kaur is Exhibit R-1. The certified copy of the statement made by the tenant Bhagwant Rai AW8/2 and the order of the Rent Controller disposing of the ejectment application on 16th August, 1962 is Exhibit R-2. In the order Exhibit R-2, it has been observed:-

She has further added that the respondent has agreed to remain as a tenant under her on the old terms and conditions as given in the rent-deed in favour of Shri Kuldip Singh and rent upto 11th May, 1962 has been received by her.

Similarly, is the position, which is clear, from the statement of Smt. Kirpal Kaur. She has clearly stated:-

The respondent has agreed to remain as a tenant under me on old term and conditions, as given in the rent-deed in favour of S. Kuldip Singh. Rent upto 11th May, 1962 has been received by me.

From the statement of the tenant Bhagwant Rai, Exhibit AW-8/2, it is clear that he accepted Smt. Kirpal Kaur as his landlady and the gift in her favour by her husband was admitted by him. He further stated that that if he is made to pay the rent over again through Court, then he shall be entitled to seek relief against Smt. Kuldip Kaur in respect of this matter. In case of transfer of this property he shall remain tenant of the transferee.

In these circumstances, the main question to be decided in this petition is that when the parties agreed that the tenant will continue as tenant on the premises on the terms and conditions as contained in Exhibit AW6/1, whether be was entitled to sublet the premises as not. According to the learned counsel for the landlady that permission to sublet was only meant for one year and after the expiry of one year the tenant was not entitled to sublet under the terms and conditions of the lease deed. I am afraid that this position taken up by the landlady is not tenable under the law. This is the common case of the parties that in the application for ejectment filed earlier the ground of subletting was never taken to eject the tenant. On 16th August, 1962 when the tenant was allowed to continue in the premises on the old terms and conditions then in view of the provisions of Section 106 read with Section 116 of the Transfer of Property Act, he was deemed to be lessee from month to month, as Section 106 of the Transfer of Property Act provides thus:-

106: Duration of certain leases in absence of written contract or local usage-

In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable on the part of either lessor or lessee, by six month''s notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days'' notice expiring with the end of a month of the tenancy.

Every notice under this Section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence or (If such tender or delivery is not practicable) affixed to a conspicuous part of the property.

The period of one year provided in the lease-deed Exhibit AW6/1 came to an end on 11th May, 1958, whereas the agreement between the parties was entered into on 16th August, 1962. According to the replication filed on behalf of the landlady, there was no lease-deed permitting the tenant to sublet the property after 11th May, 1958, which position is negatived by the agreement itself between the parties which is dated 16th August, 1962. Moreover, the present application for ejectment on the ground of subletting was filed on March, 1969, i.e., after about seven years from the compromise between the parties in the year 1962. Thus all these circumstances, i.e., nature of the building, consisting of 12 shops and 29 rooms, there being written permission of the. lease deed authorising the tenant to sublet the premises; never pleading the ground of subletting for ejectment earlier in any of the applications, clearly prove that the intention of the parties at the time of compromise was that the tenant will be authorised to sublet the premises as he was permitted earlier. The whole approach of the Appellate Authority in this respect is wrong and illegal and it has committed an error of law in coming to the conclusion that the tenant was liable for ejectment on the ground of subletting as there was no consent in writing. Moreover, it has been wrongly held by the Appellate Authority that Bhagwant Rai had agreed to become a tenant of Kirpal Kaur for a fixed period of one year, i e., from 16th August, 1962 to 15th August, 1963. This finding is neither based on the pleadings of the parties nor on the evidence led by them. Neither in the statements of the parties Exhibit AW8/2, nor in the order of the Rent Controller, Exhibit R-2, this period of one year is mentioned anywhere. When the parties agreed that the tenant will continue in the premises as such on the same terms and conditions, it does not mean that he will continue for one year only, as the earlier lease-deed was meant for one year, which expired on 11th May, 1958.

After the compromise between the parties on 16th of August, 1962, the tenant continued to occupy the premises on the same terms and conditions as given in the lease-deed, Exhibit AW6/1. His position already was that of a statutory tenant at the time of the said compromise because the earlier contractual tenancy had already come to an end by efflux of time on 11th May, 1958. In this way, the tenant still continued to be statutory tenant from month to month. Under the facts and circumstances of the present case, it will be deemed that on 16th of August, 1962, the tenant was allowed to sublet the premises as was the terms under the earlier lease deed. In the absence of any contract to the contrary, in view of the provisions of Section 108(j) of the Transfer of Property Act, the lessee could sub-lease the whole or any part of his interest in the property. Since under the provisions of the East Punjab Urban Rent Restriction Act, it was necessary that the consent of the landlord must be in writing, this was so provided in the lease-deed and the same was agreed upon between the parties on 16th August, 1962 No conclusion, other than this, is possible keeping in view all the facts and circumstances of the case. Moreover, the subsequent conduct of the landlord by observing silence for about seven years and not taking any action against the tenant on the ground of subletting, further lends support to this conclusion. The argument on behalf of the landlord that this subletting was allowed only for one year which came to an end in August, 1963, which plea also found favour with the Appellate Authority, was never pleaded and there is no evidence either to prove this fact. Rather in the application, it was stated that there was no lease deed permitting the tenant to sublet the property after 11th May, 1958. Thus, an irresistible conclusion appears to be that the landlord agreed to the right of the tenant for subletting as long as he did not render himself liable for ejectment otherwise under the provisions of the East Punjab Urban Rent Restriction Act. It has been observed in Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, that:-

Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist.

Keeping in view the said observations, I am of the considered view that the facts and circumstances of the present case do not warrant any conclusion other than this that the tenant was allowed to sublet the premises under the agreement between the parties on 16th of August, 1962 Since there was a consent in writing by the landlord to sublet the premises, no order of ejectment could be passed against the tenant on this ground.

As a result of the above discussion, this petition is accepted, orders of the Authorities below are set aside and the application for ejectment is dismissed with no order as to costs.