1. The facts giving rise to these two connected revision petitions Nos. 902 and 903 of 1971 are these. Bachan Singh, his brother Ratan Singh and their mother Karam Kaur were owners of a vacant site, measuring about 4 Kanals, situate in Moga, District Ferozepur. On 14th May, 1951, vide Exhibit A-6, Bachan Singh and his brother Ratan Singh gave on rent a vacant site, measuring 1 Kanal 19 Marlas, comprised in Khasra No. 6711/2419, on a portion of which was constructed one house, consisting of 4 rooms, rest being a courtyard, to Sardara Singh for a period of 4 years and 2 months, commencing from 1st June, 1951, at a monthly rent of Rs.100/-. Subsequently, on 15th January, 1955, vide Exhibit A-1, Bachan Singh leased out the adjoining vacant site measuring approximately 27 Marlas to Sardara Singh for one year at Rs.65/- per month, commencing from that very date. Sardara Singh then started carrying on the business of a saw mill on these premises. Thereafter, he took his brother Kartar Singh son of Bhagat Singh as a partner with him in the said business. The exact date when he did so, is not quite clear on the record. On 24th June, 1966, there was a partition between the two brothers, namely, Sardara Singh and Kartar Singh, regarding the business of the saw mill and some other properties. In the partition, the tenancy rights in the premises and this business came to the share of Kartar Singh. On 29th August, 1966, Kartar Singh entered into an agreement for the sale of this business along with the tenancy rights in the premises in favour of Hardev Singh and his two brothers Baldev Singh and Kartar Singh alias Sewa Singh for Rs.12,000/- and he took Rupees 4,000/- as earnest money. One condition in this agreement was that Kartar Singh would see that the vendees are accepted as tenants of the premises by the owners thereof. Out of this Rs.12,000/-, Rupees 1,000/- were kept with one Bihari Lal Jindal as security for making the owners accept the vendees as the tenants of the premises. On 6th April, 1967, Ratan Singh served a notice on the vendees, namely, Hardev Singh and his brothers Baldev Singh and Kartar Singh alias Sewa Singh, requiring them to pay the half-rent of the premises, i.e., Rs.60/- per month, to him, because he was the owner of the premises along with his brother Bachan Singh. On 15th April, 1967, Ratan Singh executed a Kabuliatnama, Exhibit R-3, accepting the vendees as his tenants qua half share in the property, at a monthly rent of Rs.60/-. On the same day, he received rent also for the period 1st April, 1967 to 30th April, 1967, by virtue of receipt, Exhibit R-4. On 24th April, 1967, Rs.1,000/- which were kept with Bihari Lal Jindal as security, were taken by Kartar Singh, because in the meantime Ratan Singh had executed the Kabuliatnama in favour of the vendees. On 31st March, 1968, Ratan Singh by another receipt Exhibit R-18, received Rs.240/- from the vendees as rent from 1st December, 1967, to 31st March, 1968. On 11th August, 1968, vide Exhibit R-20, Ratan Singh served a notice, through a counsel, on the vendees saying that the rent due had not been paid and the same should be immediately paid to him, otherwise ejectment proceedings would be started against them.
In the meantime, on 7th February, 1964, Karam Kaur, the mother of Bachan Singh and Rattan Singh, filed a suit for partition of the joint property, including the two premises in dispute against her two sons. This suit was decreed on 30th June, 1965 and these premises came to the share of Bachan Singh alone. According to vendees, that decree, however, was prepared on a plain paper and not drawn upon a non-judicial stamp-paper. On 7th June, 1967, out of the joint Khasra No. 6711/2419, Rattan Singh sold 10 Marlas along with some other land, to Mohinder Kaur for Rs.15,000/-. On 5th January, 1968, she served a notice on the vendees saying that she had purchased 10 Marlas, out of the said Khasra number, on which the saw mill of the vendees was working and, therefore, the rent of that portion should in future be paid to her, otherwise she would be forced to file ejectment proceedings against them. On 7th June, 1968, Balbir Singh son of Bachan Singh filed a suit for pre-emption regarding the sale made by Rattan Singh on 7th June, 1967. What happened to this pre-emption suit is not clear on the record.
On the 12th June, 1968 Mohinder Kaur filed an ejectment application against the vendees on the ground of non-payment of rent. On 2nd August, 1968, the arrears of rent, i.e., Rs. 120/- plus costs and interest were paid by the vendees to Mohinder Kaur before the Rent Controller on the first date of hearing, with the result that this application was dismissed on the same day vide Exhibit R-15. On 31st August, 1968, Bachan Singh filed two ejectment applications against the vendees. He also impleaded Sardara Singh and his brother Kartar Singh in both these applications. The two applications, according to him, had to be made because, there were two separate tenancies one dated 14th May, 1951, Exhibit A-6, and the other dated 15th January, 1955, Exhibit A-1. His grounds were that the premises had come to his share in partition in July, 1965. As regards the tenancy covered by Exhibit A-6, the grounds of ejectment were: firstly, that Sardara Singh had not paid the rent from 1st June, 1963, and secondly that he had sublet the premises to his brother Kartar Singh and the three vendees. As regards the other tenancy covered by Exhibit A-1, the grounds of ejectment were (i) that the rent had not been paid regarding the same from 1st June, 1964, and (ii) that Sardara Singh had sublet these premises in the same way as he had done the other one.
2. These applications were contested only by the vendees, because Sardara Singh and his brother Kartar Singh admitted the claim of Bachan Singh. The case set up by the vendees was that Bachan Singh and Ratan Singh, and not their mother Karam Kaur, were the owners of both these premises, which had not falled to the share of Bachan Singh on partition as alleged by him, with the result that he alone could not file the ejectment applications. They denied that there was any sub-letting, because they were the direct tenants of Bachan Singh and Rattan Singh. Regarding the payment of rent, it was pleaded that half of the rent had already been paid by them to Rattan Singh, but in spite of that, they were prepared to pay whatever rent was demanded by Bachan Singh, provided he acknowledged them as tenants. It was also alleged that no notice under Section 106, Transfer of Property Act, had been issued by Bachan Singh and, consequently, in the absence of such a notice, the ejectment applications were not maintainable. It was further said that Rattan Singh was also a necessary party, especially when he never wanted to eject them from the premises in question. It was also pleaded that after Sardara Singh had taken both these premises on rent, he had joined his brother Kartar Singh as a partner with him and both of them had then raised constructions on the vacant site. These constructions had also been sold to them by virtue of the sale-deed, Exhibit R-7. That being so, the Rent Controller had no jurisdiction to order their ejectment from these premises.
3. On the pleadings of the parties, the following issues were framed:--
'1. Whether the respondent is liable to be ejected on the grounds mentioned in the petition?
2. Whether the relationship of landlord and tenant exists between the parties?
3. Whether the petitioner alone is competent to file the application?
4. Whether the respondent has made any construction on the premises in dispute and as such this Court has no jurisdiction to try this case?
5. Whether respondents Nos. 1 and 2 had entered into any partnership? If so, its effect?
6. Whether a new tenancy was created in favour of respondents Nos. 3 to 5 as alleged?
4. The Rent Controller came to the conclusion that the vendees were liable to be ejected on account of non-payment of rent and also subletting. According to the Rent Controller, there was relationship of landlord and tenant between the applicant and Sardara Singh, but there was no such relationship between the vendees and Bachan Singh. It was found that Bachan Singh alone was competent to file the ejectment applications. As regards issue No. 4, the Rent Controller came to the conclusion that it could not be held that any construction on the premises in dispute was made at the cost of either the vendees or Sardara Singh and his brother Kartar Singh. Under this very issue, it was held that the claim of the vendees to the super-structures existing on the premises in question, could be settled only by a Civil Court and the Rent Controller was not competent to give relief on that score. The jurisdiction of the Rent Controller to try these ejectment applications was not barred. Under issue No. 5, it was held that Sardara Singh had entered into a partnership with his brother Kartar Singh, but there was no subletting on that account. As regards issue No. 6, the finding was that no new tenancy had been created in favour of the vendees as alleged by them. On these findings, the Rent Controller, accepted the ejectment applications.
5. When the matter went in appeal before the Appellate Authority, he affirmed the findings of the Rent Controller practically on all the issues, except this that he ordered the ejectment of the vendees on the ground of subletting alone, and dismissed the appeal. Against that decision the present two revision petitions have been filed by the vendees. This order will dispose of both of them.
6. The main point to be considered in these cases is whether Bachan Singh alone could file the ejectment application because if he could not do that, the said applications would be dismissed on that ground alone and no other question will arise for decision.
7. As already mentioned above, there were two tenancies created in the case one by Exhibit A-6 dated 14th May, 1951, and the other by Exhibit A-1 dated 15th January, 1955, and it is, therefore, that Bachan Singh had to file two eviction applications.
8. As regards Exhibit A-1, it is common ground that this tenancy was created by Bachan Singh alone, because he gave on rent a vacant site about 27 Marlas in area for one year to only Sardara Singh at a monthly rent of Rs.65/-. Even if the said vacant site might be jointly owned by Bachan Singh and his brother Rattan Singh, in as much as the former had given it to rent to Sardara Singh, he alone could maintain the eviction application. He would be considered the landlord of the premises and would be covered by the definition of this word in Section 2(c) of the East Punjab Urban Rent Restriction Act, 1949. There it has been stated that 'landlord' means any person for the time being entitled to receive rent is respect of any building or rented land whether on his account or on behalf or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, and, every person from time to time deriving title under a landlord. Thus Bachan Singh would be fully covered by this definition. His tenant Sardara Singh could not deny his title during the continuance of the tenancy and till he had actually given up the possession and restored the same to Bachan Singh. This would be apparent from Section 116 of the Indian Evidence Act, which says that 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. To the same effect is the decision of a Division Bench of Andhra Pradesh High Court in B. Sreeramulu v. Kalipatnapu Venkateswar Rao, AIR 1959 Andh Pra 92, where it was held:
'The section embodies the principle of estoppel arising from the contract of tenancy. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. Of course he can deny his title after he gives up the possession having thus restored status quo ante.
All that is necessary for the application of the above principle is that there was a contract of tenancy and that the tenant took possession of the land under the title or with permission of the landlord or the person then in possession. Possession and permission being established estoppel would bind the tenant during the continuance of the tenancy and until he does not surrender his possession.
Evidently both the landlord and the person in possession at the time of contract are within the protection of the provision. A person in possession within the meaning of the section need not be a full owner; he may be a mortgagee, lessee or any other person having right to or is in actual possession. However defective the title of such a person or even the landlord may be at the time of the creation of the tenancy the person inducted under the term of the contract cannot be permitted to rely on that defect to his advantage or to perpetuate his possession or to act in detriment to the landlord's right.'
9. If Sardara Singh could not deny the title of Bachan Singh, similarly the former's brother Kartar Singh, who had been taken by him as a partner in his business, or the vendees from Kartar Singh, could not do so. Under these circumstances, it has to be held that so far as the rent-deed, Exhibit A-1 is concerned, Bachan Singh alone could file the ejectment application.
10. Coming to the other rent-note, Exhibit A-6, it is true that by the same, Bachan Singh and his brother Ratan Singh had given on rent the other premises to Sardara Singh for a period of 4 years and two months on a monthly rent of Rs.100/-. It was urged that an application for ejectment against the tenants filed by one of the landlords only was not competent (vide Hargulal v. Khushal, 20 Pun LR 1907). There are authorities, which lay down that in the case of joint owners of property, which had been rented out, a petition for ejectment of the tenant was maintainable even at the instance of one of them, if the same was required for his bona fide residence. (See in this connection Vir Bhan v. Avtar Krishnan, 1962-64 Pun LR 1185). It is, however, not necessary to decide this point, because, in the instant case, it is on the record that one of the owners of these premises, i.e., Ratan Singh, had, by virtue of Exhibit R-3, dated 15th April, 1967, admitted the petitioners to be his tenants qua his half share in the said property and permitted them to stay on, and that being so, the other co-owner, namely, Bachan Singh could not perhaps file an ejectment application for their eviction merely from his half-share in the rented property. His case, however, was that in a partition suit between him, his brother and mother, the premises covered by Exhibit A-6, along with the other premises covered by Exhibit A-1, had come to his exclusive share on 30th July, 1965 (Exhibit A-7). The partition suit had been decreed and a regular decree-sheet had also been prepared on the same day. If this fact is established, then there is no doubt that Bachan Singh alone could file an ejectment application regarding these premises as well. The objections of the petitioners regarding this matter, however, is that although the decree-sheet was prepared on the said date, but it had been drawn on a plain paper and not on a proper non judicial stamp paper and that being so, there was no valid decree in existence, on the basis of which Bachan Singh could claim his exclusive right to the property in question. Reference in this connection was made to (i) a decision of Dalip Singh J., in Dilbagh Rai v. Mt. Teka Ravi, AIR 1932 Lah 249; and (ii) a Full Bench ruling of the Lahore High Court in Gopi Mal v. Vidya Wanti, AIR 1942 Lah 260(FB). In the former authority, it was observed:
'In a partition suit a final decree was not stamped with a judicial stamp although court-fee stamp was attached to it. The executing Court held by mistake that the decree was properly stamped and allowed execution: Held that notwithstanding the provision of Section 36 (of the Stamp Act) as the decree was not drawn up on a stamp paper it could not be deemed to be a decree at all and therefore there was nothing for the executing Court to act upon.'
11. In Gopi Mal's case, AIR 1942 Lah 260(FB) it was held:
'Where the Court has drawn up a partition decree without the proper stamp whether after a considered decision or whether only by inadvertence, there is no lack of inherent jurisdiction, though there might be an irregularity or illegality in the exercise of jurisdiction and therefore it cannot be said that there is no decree in existence at all. There is a decree but not a decree that can be acted upon until a proper stamp is supplied, but the decree can be validated by the addition of the proper stamp and therefore it cannot be said that there is no decree at all in the sense that that decree is merely a piece of waste paper which cannot be validated by the addition of the stamp unless the presiding officer re-signs the decree after it is stamped.
Where a partition decree is drawn up without proper stamp and the executing Court without objection proceeds to execution, there is no lack of inherent jurisdiction in the executing Court, to act upon the decree, that is to execute it but there is an illegality or error affecting its jurisdiction in proceeding to act upon a decree which the statutory bar provided by Section 35 (of the Stamp Act) forbids it from doing. Once the proper stamp is supplied, the validity of the decree would date back to the date of the decree and therefore the execution application instead of being struck off might proceed as from that date. But this would not validate the proceedings that had taken place before the proper stamp was supplied. Those proceedings would still be without jurisdiction in the sense that the Court was barred by statute from proceeding in the way it did without a proper stamp and therefore the proceedings were without any legal justification.'
12. It was further contended that unless the decree was engrossed on a judicial stamp paper and signed by the Judge, it was no decree at all and the Subordinate Judge had no jurisdiction to prepare the decree on a plain paper. In this connection, reliance was placed on a Bench decision of the Madras High Court in Pandivi Satyanandam v. Paramkusam Nammayya, AIR 1938 Mad 307, wherein it was observed that a final decree until it was engrossed on proper non-judicial stamp paper.
13. It is common ground that the requisite stamp paper had been supplied in the partition suit and the argument raised by the learned counsel for the respondent was that by the said reply the validity of the partition decree dated back to the date of the decree, i.e., 30th July, 1965, and from that date, Bachan Singh alone became the exclusive owner of the premises and if later on 15th April, 1967, Ratan Singh executed a Kabuliatnama, Exhibit R-3, regarding these very premises in favour of the petitioners, that would have no effect and would not confer any tenancy rights in the said premises on them. Counsel for the petitioners, on the other hand, submitted that the exact date, on which the said stamp paper was supplied, was not proved on the record and moreover, if Ratan Singh had executed Exhibit R-3 before the said date, he could pass by that document a valid title regarding the tenancy rights in favour of the petitioners, because on that day, Bachan Singh was not the exclusive owner of the premises.
14. It may be stated that all these objections had not been taken by the petitioners in the written statement filed by them. It was not said by then that the stamp duty was paid after 15th April, 1967, on which date Exhibit R-3 was executed. It was further not said that the decree was not prepared on a proper stamp paper. As a matter of fact, it was not even pleaded that the said decree was in any way defective and not capable of execution. These are all questions of fact, which should have been specifically raised in the written statement. If that had been done, Bachan Singh could have adduced evidence to show that the requisite stamp was supplied on the day when the judgment was announced and the decree was signed and further that it had been engrossed on a non-judicial stamp-paper of the proper value. The respondent could have also shown that Exhibit R-3 was a collusive document or a forgery. It is further significant to mention that Ratan Singh, who had executed Exhibit R-3, had not been examined by the petitioners and no question regarding this matter was put either to Bachan Singh or any of the witnesses. As a matter of fact, in the written statement, the position taken by the petitioners was that they had taken the premises in question both from Ratan Singh and his brother Bachan Singh. It follows therefrom that Exhibit R-3, according to which Ratan Singh alone had executed the Kabuliatnama, was either a forgery or else it was a collusive document and not written on the date it bears. In my opinion, therefore, the petitioners are not entitled to raise all these objections without mentioning them in the written statement.
15. This apart, even according to the Full Bench decision of the Lahore High Court in Gopi Mal's case, AIR 1942 Lah 260(FB) once the proper stamp was supplied, the validity of the decree would date back to the date of the decree. That being so, if once it is conceded that the proper stamp was supplied, as in the position in the instant case, the partition decree would be effective from 30th July, 1965, when the suit was decreed. A Bench of the Allahabad High Court in Ganesh Prasad v. Mt. Makhana, AIR 1948 All 375, also took the view that by the supply of the requisite stamp, the validity of a partition decree dated back to the date of the decree and the validity of the execution proceedings in that decree taken prior to the supply of requisite stamp could hardly be questioned. The payment of the stamp duty in such a case validated not only the decree, but also the proceedings taken thereunder. In a Bench decision of the Patna High Court in Raghubir Sahu v. Ajodhya Sahu, AIR 1945 Pat 482, it was held:
'When in a partition suit the properties allotted to the share of each party are clearly specified and schedules of properties allotted to each are appended to the compromise petition, no further enquiry is at all necessary. In such circumstances the compromise decree does not merely declare rights of the several parties interested in the properties but also allots the properties according to the respective shares of each party. Therefore, it is not a preliminary decree but it is the final decree in the suit. The only that remains to be done is to engross it on a stamped paper under Article 45, Stamp Act. There is no time limit prescribed by the statute for the engrossment of a partition decree on stamp of requisite value. Therefore, mere delay in engrossment of the decree on stamped paper of the requisite value will not in any way affect the interests of the parties in respect of the properties though changes have taken place in regard to the properties since the decree has been made.'
16. Learned counsel for the petitioners submitted that in Gopi Mal's case, AIR 1942 Lah 260(FB) it was held by the Full Bench that once the proper stamp was supplied, the validity of the decree would date back to the date of the decree and, therefore, the execution application instead of being struck off, may proceed as from that day, but that would not validate the proceedings that had taken place before the proper stamp was supplied. Those proceedings would still be without jurisdiction in the sense that the Court was barred by the statute form proceeding in the way it did without a proper stamp. Therefore, the proceedings were without any legal justification.
17. These observations cannot in any way help the petitioners. All that they mean is that on the supply of the proper stamp, the partition decree would become valid from the date it was made, i.e., 30th July, 1965, in the instant case. These proceedings which had taken place before the stamp was supplied, would, however, not be validated and they would be without jurisdiction. No execution proceedings had, admittedly, taken place in the present case, as was the position in Gopi Mal's case, AIR 1942 Lah 260(FB). If on the supply of stamp-paper, the partition decree became validated from the date it was made, i.e., 30th July, 1965, then from that date Bachan Singh had become the exclusive owner of the premises in question and Ratan Singh had nothing to do with the same. On 15th April, 1967, when he executed the Kabuliatnama, Exhibit R-3, in favour of the petitioners, he could not confer any tenancy rights on them even qua the half share in the property as was stated in the said document. The petitioners would have a case, if they could show (i) that the partition decree would be valid only from the date when the stamp paper was supplied, and (ii) that in the instant case, the stamp paper was put in after 15th April, 1967. But the petitioners have not been able to substantiate these things.
18. As regards, Pandivi Satyanandam's case, AIR 1938 Mad 307 relied upon by the petitioners, it is enough to say that if it intends to lay down that the partition decree cannot be validated from the date of the decree on the production of the proper non-judicial stamp paper, then it runs counter to the Full Bench decision of the Lahore High Court in Gopi Mal's case, AIR 1942 Lah 260(FB) by which I am bound. Besides, the Madras authority relies on Jotindra Mohan Tagore v. Bejoy Chand Mahatap, (1905) ILR 32 Cal 483, which only lays down that a decree for partition to be effective, must be engrossed on stamped-paper, as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated.
19. In view of what has been said above, I would hold that Bachan Singh had become the exclusive owner of the premises covered by Exhibit A/6, on 30th July, 1965, when the partition suit was decreed and, consequently, Ratan Singh, when he executed the Kabuliatnama, Exhibit R-3, on 15th April, 1967, did not vest the petitioners with nay tenancy rights in the property in question. That being so, Bachan Singh was the full owner of these premises and could file the ejectment applications against the petitioners.
20. Having come to the conclusion that Bachan Singh alone could file the eviction applications, the only other point that falls for determination is whether the petitioners were liable to ejectment on the two grounds referred above, viz., non-payment of rent and sub-letting.
21. Bachan Singh, indisputably, had not been paid any rent from 1st June, 1963, so far as the premises covered by Exhibit A-6 is concerned, and from 1st June, 1964, as regards the property mentioned in Exhibit A-1. On the ground of non-payment of rent alone, therefore, the petitioners were liable for ejectment.
22. As regards the ground of sub-letting, the petitioners, according to their own case, were the vendeed from Kartar Singh, who had been taken as a partner by his brother Sardara Singh, the original tenant. It is not the position taken by the petitioners that the said sale was with written consent of Bachan Singh. They were, thus, not the direct tenants of Bachan Singh. The Rent Controller and the Appellate Authority were, therefore, correct in holding that the petitioners were liable to ejectment on the ground of sub-letting.
23. It was also urged by the learned counsel that no notice had been issued by Bachan Singh to the petitioners under Section 106 of the Transfer of Property Act and, consequently, the eviction applications should be rejected on that ground alone.
24. There is no merit in this contention. In the first place, the point does not seem to have been raised either before the Rent Controller or the Appellate Authority. Secondly, no issue was framed regarding the same. Thirdly, no such notice was under the law required to be given to the sub-tenants.
25. In view of what I have said above, these petitions fail and are dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout. The petitioners are given three months' time to vacate the premises in question.
26. Petitions dismissed.