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Roshan Devi Vs. Arjan Dass Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 290 of 1969
Judge
Reported inILR1975Delhi412
ActsDelhi Rent Control Act, 1958 - Sections 39
AppellantRoshan Devi
RespondentArjan Dass Gupta
Advocates: B.S.C. Singh and; S.L. Bhatia, Advs
Cases ReferredMiss S. Sanyal v. Gian Chand
Excerpt:
.....by landlord against tenant - should contract of tenancy be different then it is not material that rented premises are similar or let out to same tenant whether at same rate or not - in such case landlord entitled to institute suit for eviction - petition of appellant-landlord for eviction of respondent from premises in dispute could not be invalidated on ground of partial eviction - order of tribunal dismissing appeal for eviction on ground that petition for partial eviction not maintainable set aside. - - 643. the additional controller as well as the rent control tribunal have on the appraisal of the evidence, come to the conclusion that the mercantile bank was never a tenant in respect of the aforesaid second godown and so the case of unlawful subletting to a. gupta had failed...........issued separately (see ex. rw4/4 dated 7th april, 1949 and ex. rw4/6, dated 2nd june, 1949) -the tenanted premises are shown as godown no. 6 and the receipts have also been issued in the name of a. d. gupta, respondent herein. it is pertinent to notice that although two receipts of rent were issued simultaneously on 2nd june, 1949 (ex. rw4/5 and ex. rw4/6) turn the two godowns, they were issued separately in respect of each of the godowns and even the attraction of convenience of issuing joint receipts did not weigh with the parties in combining the two tenancies. this establishes that the first godown (no. 5) and the second godown (no. 6) were being dealt with by the parties in a demonstrably separate manner and there was practically nothing in common, except the name of the landlord......
Judgment:

B.C. Misra, J.

(1) This second appeal has been filed by the landlord under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as 'the Act') and is directed against the appellate order of the Rent Control Tribunal, dated 5th June, 1969 by which it has dismissed the appeal and affirming the order of the Additional Controller, finally dismissed the petition for eviction on the ground that a petition for partial eviction is not maintainable.

(2) The dispute between the parties relates to a godown bearing new No. 675, Ward No. Vii, Khirki Farash Khana, behi G. B. Road, Delhi. Its measurement is said to be 10' X 20'. This godown is a part of a large property, which belonged to a Muslim lady known as Fakhar-ul-Nisa, who migrated to Pakistan in 1948 and was declared an evacuee. The property was taken over by the Custodian of Evacuee Property and eventually vested in the Central Government under the relevant provisions of law and was finally sold to the appellant before me under a certificate of sale dated 31st December, 1960 effective from 3rd March, 1960.

(3) The respondent tenant is a pre-partition tenant in respect of the premises in dispute in this appeal. It is alleged that the said godown bearing private No. 5, was let out in 1942 on a rent of Rs. 15.94 p.m. to the respondent under the name of respondent's Karinda named Jagan Nath. It is in evidence that a separate rent note was executed for the same, but the rent note has not been produced. The rate of rent was subsequently increased according to law. This tenancy had been recognised by the Custodian during the period the property was in his possession and control and it has been foisted on the appellant by operation of law. The appellant filed the petition for eviction (No, 1210/62) against the respondent in respect of the aforesaid godown in dispute on the ground of non-payment of rent, etc. This petition has given rise to the present appeal.

(4) The case set up by the respondent tenant, inter alia, is that there is another godown bearing No. 643, (private number of which was godown No. 6). This was let out to the respondent. A. D. Gupta, in his own name in July, 1947, on a rent of Rs. 12.50 p.m. The evidence is that a separate rent note was executed for it, but the same has not been produced on the record. The defense of the respondent was that he is the tenant in respect of both the premises, that is to say, the premises in dispute in this appeal (which for the sake of convenience I will refer to as the first godown) and also in respect of the above mentioned godown No. 643 (which I shall refer to as the second godown), and that a petition for partial eviction was not maintainable.

(5) The appellant before me instituted another petition for eviction (No. 1211/62) against the Mercantile Bank and it was contended in that petition that A. D. Gupta, respondent before me, was an unlawful subtenant of the Mercantile Bank, which was the tenant in respect of the second godown, viz. Godown No. 643. The Additional Controller as well as the Rent Control Tribunal have on the appraisal of the evidence, come to the conclusion that the Mercantile Bank was never a tenant in respect of the aforesaid second godown and so the case of unlawful subletting to A. D. Gupta had failed. That petition for eviction (No. 1211/62) has been dismissed by the Additional Controller and its dismissal has been upheld on appeal by the Tribunal. A second appeal against the same has been dismissed by this court in liming.

(6) The said petition as well as the petition in respect of the first godown giving rise to this appeal were disposed of by a common order and the Additional Controller and the Tribunal have appraised the evidence and come to the conclusion that the Mercantile Bank was not a tenant in respect of the second godown. From this finding it was inferred that A. D. Gupta was a tenant in respect of the first godown in dispute as well as the second godown and as such the petition which has given rise to this appeal was not maintainable for partial eviction. At this stage, it may be mentioned that both the petitions were tried together and material documentary evidence has been placed on file No. 1211/62.

(7) I have heard Bawa Shiv Charan Singh, learned counsel for the appellant, and Mr. S. L. Bhatia, learned counsel for the respondent in this appeal. By this judgment, I do not disturb the decision recorded in petition No. 1211/62 which had been filed against the Mercantile Bank and has finally been disposed of. In this judgment, I also do not disturb the finding of fact recorded for purposes of the present case that Mercantile Bank was not the tenant in respect of the second godown No. 643, nor do I disturb the finding that A. D. Gupta, respondent before me, is a real tenant in respect of the first godown No. 675, which is the subject matter of this appeal.

(8) The question that arises for consideration and has been agitated by Bawa Shiv Charan Singh is that the finding that in the circumstances of the case, the present petition was had for partial ejectment, is contrary to law. I find force in the submission. From the statements of Anwar-ul-haq. RW4' who was the attorney of the Maslim owner Fakhar-ul-Nisa, Jagan Nath, Rw 5, and respondent Rw 6, and from the receipts dated 26th March, 1947 (Ex. Rw 4/3) and the receipts dated 2nd June, 1949 (Ex. Rw 4/5), it is evident that for the first godown (in dispute before me), there were separate rent receipts. different rate of rent and the name of the tenant is also given separately ax Jagan Nath. who is alleged to be the Pairokar of the first respondent. This tenancy commenced separately in 1942. So far as the second godown is concerned, it is in evidence that its tenancy commenced much later in July, 1947 and its rent receipts have been issued separately (see Ex. RW4/4 dated 7th April, 1949 and Ex. RW4/6, dated 2nd June, 1949) -The tenanted premises are shown as godown No. 6 and the receipts have also been issued in the name of A. D. Gupta, respondent herein. It is pertinent to notice that although two receipts of rent were issued simultaneously on 2nd June, 1949 (Ex. RW4/5 and Ex. RW4/6) turn the two godowns, they were issued separately in respect of each of the godowns and even the attraction of convenience of issuing joint receipts did not weigh with the parties in combining the two tenancies. This establishes that the first godown (No. 5) and the second godown (No. 6) were being dealt with by the parties in a demonstrably separate manner and there was practically nothing in common, except the name of the landlord. The conclusion is, thereforee, clear that the two tenancies for the two godowns neither commenced together nor were created under a single contract of tenancy and they maintained their separate identities and course. Should a landlord let out two or more premises to the same tenant under a single contract of tenancy, he is bound to include them in his action. But, if they are let out under different contracts of tenancy, then it is open to the landlord to institute a suit or petition for eviction,as the case may be, in respect of one of the said premises, if ha feels aggrieved by any cause of action relating to it and he is not bound to sue for the other tenanted premises. The provisions of law may enable a landlord to join one or more causes of action but that is only permissible and should the landlord think fit not to do so, his action cannot be dismissed as for partial eviction. In my opinion, it is the singleness of contract which determines the indivisibility of the tenancy and not the extent of the premises.

(9) In Trustees. Chokkanathaswami Temple v. Poovanna Navanna Vadivelmuruga Nadar Air 1936 Mad 220, it was held that the ejectment; must relate to the entire holding and a landlord could not break up his tenant's tenure by declaring that he had no longer any right to a portion although he held the remainder and that it was an elementary principle of law of ejectment that in a suit for ejectment one must eject as to all and not as to a part. The court followed three earlier decisions on the subject, Ram Kanie Mandal v. Ganesh Chunder Sen (1883) CRI. L. J. 513, Kamleshwari Prasad Singh v. Harbullah Narain Singh. (1905) CRI. L. J. 369, and K. Rangappa v. K. Bhimappa, 39 Mad. 949. In the Trustees, Chokkanathaswami Temple's case, the court further observed that where parcels of land were held under a single engagement, it constituted only one single holding and the fact that details of the consolidated rent were given and noted against each parcel in the pattah would not make any difference because the entire rent was chargeable upon every piece of land comprised in a holding. This decision was delivered under the Madras Estates Land Act, but the general principles of law enunciated therein relating to ejectment from parital holding is of universal application.

(10) In Chandra Mohan Banikya and others v. Srimati Meherjan Banu and others : AIR1927Cal191 , a Division Bench of the High Court deciding the case under the Bengal Tenancy Act held that partial ejectment could be allowed only under special circumstances, and- could not be decreed as a rule unless and until some strong case had been made out. In Devasy George v. Lekshmi Amma Naravani Amma Air 1956 TC 265, the court observed that a suit for ejectment of a tenant from a part of the demised premises was maintainable at the instance of the holder of a superior lease in respect of that part of the premises, provided the Lesser was also made a party to the suit, so that the decision relating to apportionment of rent might be binding on the Lesser also. These two authorities lay down exceptions occurring in the particular circumstances of the case, but the general rule is as laid down by the High Court of Madras in Trustees, Chokkonathaswami Temple's case supra. A decision of the Privy Council is also helpful to support the aforesaid view taken by the High Court of Madras. In Harihar Banerji and others v. Ramshashi Roy and others, Air 1918 P. C. 102, in the discussion of the validity of a notice, the Judicial Committee observed that if the landlords knew the law, as they must be assumed to do, they must have been well aware that a notice to quit calling upon the tenants of a holding to quit a portion of it was absolutely bad, and they must have known also that) this design could not be accomplished unless the ejectment founded on the notice was so framed as to obtain secure possession of the portion mentioned in the notice and no more, and that the action could be at once defeated by the tenants by proof that the contents of their holding were more than the part name.

(11) So far as the special law between the landlord and tenant in Delhi is concerned, it is codified by the Delhi Rent Control Act, 59 of 1958. Section 2(i) of the Act defines the premises as building or part of a building which is, or is intended to be, let separately for use as residence for commercial use or for any other purposes and includes ................ The essence of the definition is that the premises must be such as have been let (or were intended to be let) separately. thereforee, separately letting the premises under one contract would constitute one single tenancy for purposes of eviction proceedings under the Act.

(12) An instructive case arose under the Delhi and Ajmer Rent Control Act, 38 of 1952 where the definition of the premises was similar. The landlord had instituted a suit for eviction against the tenant on the ground of bona fide personal necessity. The eviction could be ordered only in respect of residential premises. 'The courts of fact found that one part of the tenanted premises was being used for residential and the other part for non-residential purposes. The High Court ordered the eviction only from the residential portion of the premises. On appeal by special leave, the Supreme Court in Miss S. Sanyal v. Gian Chand, : [1968]1SCR536 , reversed the order of the High Court and in this context observed :-

'THEjurisdiction of the court may be exercised under section 13(1)(e) only when the promises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purposes residential and non-residential. The contract of tenancy is a single and indivisible contract, and in; the absence of any statutory provision to the effect it is not open to the court to divide it into two contracts-one of letting for residential purposes and the other for non-residential purposes, and to grant relief to the landlord under section 13(1)(e) limited to the portion of the demised property which is being used for residential purposes.'

(13) The above observations indicate the view of the Supreme Court that the premises are single and indivisible, if the contract of tenancy in their respect is single and indivisible. thereforee, my conclusion is that it is the singleness of the contract of tenancy that determines the singleness and indivisibility of the tenancy of the premises. If more than one premises or properties have been let out under a single contract of tenancy, they must all be included in an action of eviction by the landlord against the tenant. Should the contracts of tenancy be different, then it. is not material that the tenanted premises are similar or situated in the same property or have been let out to the same tenant or even simultaneously at tile same rate of rent. In such a case, the landlord is entitled to institute a suit or petition for eviction in respect of the premises covered by each separato contract of tenancy. In this view of the matter, the petition of the appellant landlord for eviction of the respondent from the premises in dispute could not be thrown out on the ground of partial eviction.

(14) Mr. Bhatia, counsel for the respondent however, contends that in the instant case although the tenancy of the two premises commenced separately on different dates under separate contracts of tenancy, there was later on a merger of the two tenancies. In my opinion, the merger of the two tenancies can legally be effected either by mutual consent of the parties or by operation of law. About this merger, I do not find any material evidence on record sufficient to return a finding. It is evident that the parties to the proceedings did not proceed to trial clearly on the issue as to whether the first godown (which is the subject matter of dispute in this appeal) was under a separate contract of tenancy from the tenancy of the second godown or whether at any stage the two contracts of tenancies were merged either by mutual consent of the parties or by operation of law. Their attention obviously was not directed to leading relevant evidence on the point. As a matter of fact, the case has been overshadowed by the allegations made about the Mercantile Bank being the tenant and the respondent being its sub-tenant in respect of the second godown and the authorities below after arriving at a finding that the Mercantile Bank was not a tenant in respect of the second godown inferred that the respondent who was alleged to be a sub-tenant, was really a tenant and that if he was a tenant in respect of both the godowns, then the petition for eviction from one of them was not maintainable. This reasoning is fallacious and is not based on any evidence and material on record and is, thereforee, set aside.

(15) As a result, J allow the appeal, set aside the appellate order of the Tribunal dated 5th June, 1969 as well as the order of the Additional Controller dated 8th March, 1967 and remand the case to the Controller for fresh trial according to law. The question for decision of the Controller is whether the contract of tenancy in respect of the premises in dispute, viz. godown No. 675, at any time merged with the contract of tenancy in respect of the other premises, so as to form one contract of tenancy in respect of both the godowns either initially or at any time later by mutual consent of the parties or by operation of law or by any act of the public authorities under the law. The Controller will afford the parties an opportunity to adduce evidence on this question. The answer to this question will determine whether or not the petition for eviction giving rise to the present appeal is for partial ejectment and so not maintainable.

(16) The appeat is disposed of accordingly. Costs of this appeal will abide by the result of the eviction petition. The parties appearing before me arc directed to appear before the Additional Controller on 5th May 1975 for Further proceedings.


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