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PETITIONER: PAL SINGH

       Vs.

RESPONDENT: SUNDER SINGH (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT10/01/1989

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1989 AIR  758            1989 SCR  (1)  67  1989 SCC  (1) 444        JT 1989 (1)    67  1989 SCALE  (1)36  CITATOR INFO :  C          1991 SC1966  (*)

ACT:     Delhi  Rent  Control Act, 1958:  Sections  14(i)(e)  and 39--Tenant-Eviction of--Whether one co-owner of the property can maintain the eviction petition--Bona fide need of  land- lord--High Court appointed Advocate as Commissioner to  give report--After considering report High Court not  interfering with finding by appellate Court--Justified. Indian Evidence Act, 1872: Section 116--Estoppel in relation to tenants

HEADNOTE:     In  1947  three rooms and a courtyard  in  an  evacuee’s property  were  given  on tenancy to the  appellant  by  the Custodian  of Evacuee Property. In 1956 the entire  property was jointly purchased by the father of the respondent and  a lady.  The lady died in 1975 and her legal heirs became  the co-landlords  of  the disputed premises. In June  1975,  the father of the respondents filed an eviction petition against the  appellant on the ground that the premises was  required bona  fide  by the landlord under section  14(1)(e)  of  the Delhi  Rent Control Act, 1958. The legal heirs of the  joint purchaser  viz  the lady, were, however,  not  impleaded  as parties. The appellant contested this petition alleging that the  respondent  had no locus standi to file  the  petition, that  the respondent was not the sole owner of the  premises in occupation of the appellant, that there was no  relation- ship  of landlord and tenant existing between  the  parties, that as other owners were not joined as parties the eviction petition was not maintainable, and further that the  permis- sion  granted by the Slum Authority was invalid.  The  Addi- tional  Rent  Controller held that one of  the  co-landlords could  receive payment on behalf of the other and  that  re- ceipt  of rent by one landlord would not by itself make  him exclusive owner when the premises were in fact owned by more than  one owner and consequently the respondent alone  could not terminate the tenancy of the appellant. He further  held that  one coowner could not terminate the tenancy  when  the property  was owned by joint owners and that the  respondent landlord was not able to prove that there was no  reasonable

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suitable accommodation with him and that his claim for  bona fide  reasonably requirement was not proved. He  accordingly dismissed the suit for eviction. 68     Aggrieved  by the order of the Additional Rent  Control- ler, the respondent filed an appeal before the Rent  Control Tribunal. The Tribunal held that the respondent was entitled to claim the premises on the ground of bona fide requirement for  the  use of his family, and that the property  had  all along  been used for residential purposes and that it  would not be proper to accept the view that the purpose of letting out was residential-cure-commercial- On the question whether one coowner could maintain the suit for eviction the  Tribu- nal held that in the circumstances of the case the  respond- ent  landlord as a co-owner alone could have maintained  the eviction petition.     The  appellant filed a second appeal and the High  Court rejected the same on the ground that the action for eviction was  justified in view of section 14(1)(e) of the  Act,  and that the need of the landlord was bona fide, and further the High  Court affirmed the view that a co-owner in  the  facts and  circumstances of the case was entitled to  maintain  an action for eviction.     In  the  appeal by special leave to this  Court  it  was contended  on  behalf of the appellant tenant  that  in  the absence  of  the other co-owner the suit  for  eviction  was incompetent,  and that the bona fide need was  not  properly proved  and  the High Court was in error  in  upholding  the order of eviction on this ground. Dismissing the appeal,     HELD:  1. When the other co-owner did not object to  the eviction one co-owner could maintain an action for  eviction even in the absence of the other co-owner. [75D]     In the instant case, the direction given by the Court in the  suit for specific performance of an agreement  to  sell filed by Smt. Sham Kaur against the respondent-landlord, was not with respect to the portion of the property which was in the  occupation of the tenant--appellant and which  was  the subject matter of the eviction petition. The three rooms and the  courtyard in question, the subject matter  of  dispute, fails in the share of Sunder Singh--respondent who had filed the eviction petition. Furthermore there is no evidence that Smt. Sham Kaur or her representatives wanted the  appellants to continue. [75E-G]     Kanta Goel v. B.P. Pathak and others, [1977] 2 SCC  814; Sri Ram Pasricha v. Jagan Nath [1976] 4 SCC 184 referred to. 69     2.  The law is that the estoppel of a tenant under  sec- tion 116 of the Evidence Act was a recognition and statutory assimilation  of  the equitable  principles  underlying  the estoppel in relation to tenants. [76D]     In  the instant case, the rent had all along  been  col- lected by the respondent from the appellant. [76D]     Tej  Bhan  Madan  v. II Additional  District  Judge  and others, [1988] 3 SCC 137, referred to.     3.  The High Court noted that the plea of the  appellant that  immediately prior to the filing of the  petition,  the landlord had rented out a few rooms on the ground floor, was not  specifically raised in the pleadings nor in  the  first appeal,  and  rightly held that it was not proper  to  raise this question in the second appeal. [76E-F]     4. The High Court appointed an Advocate as Local Commis- sioner to visit the premises and give his report. The report corroborated  the stand of the landlord-respondent. In  that view of the matter it was not possible for the High Court to

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have  further interfered with the findings of the  Appellate Court. [77B] Vinod Kumar Arora v. Surjit Kurnar [1987] 3 SCC 711 referred to.     5.  The respondent was, therefore, entitled to  maintain the  eviction petition alone and he had proved  the  grounds for eviction and that his need was bona fide and that he had no other suitable accommodation in his possession. [77E]     V. Dhanpal Chettiar v. Yesodai Ammal, [1980] 1 SCR  334, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2311  of 1986.     From the Judgment and Order dated 30.1.1986 of the Delhi High Court in S.A.O. No. 326 of 1980.     Rajinder  Sachhar, Aruneshwar Gupta and  Sunil  Malhotra for the Appellant.     D.K.  Kapoor, Indu Goswamy and Harish N. Salve  for  the Respondents. 70 The Judgment of the Court was delivered by     SABYASACHI MUKHARJI, J: This appeal by special leave  is from the judgment and order of the High Court of Delhi dated 30th  of January, 1986. The order in question was passed  by the High Court in second appeal. In order to appreciate  the controversy  in  this appeal, it is necessary  to  refer  to certain facts. In 1947 three rooms and a courtyard in  Prem- ises Nos. 22 16-2222, Gali Inder Chammar Teliwara, Delhi  as an Evacuee Property was given on tenancy to the appellant by the  Custodian of the Evacuee property. In 1956, the  entire property was jointly purchased by the father of the respond- ent  and  Smt. Sham Kaur from the Custodian of  the  Evacuee property. Smt. Sham Kaur had paid 50 per cent of the consid- eration  money, i.e., Rs.25,700 towards the sale amount.  It was  a joint purchase. Smt. Sham Kaur died in 1975  and  her legal  heirs became the co-landlords of the  disputed  prem- ises.  In June 1975 the father of the respondents had  filed an  Eviction  Petition against the appellant on  the  ground that the premises in question was required bona fide by  the landlord  under section 14(1)(e) of the Delhi  Rent  Control Act,  1958, hereinafter called the said Act. Legal heirs  of Smt.  Sham Kaur were, however, not impleaded as parties.  On 28th of October, 1976 the First Additional Rent  Controller, Delhi  dismissed the suit for eviction. Several grounds  had been  taken  in defence by the appellant herein  before  the First  Additional Rent Controller. It was  contended,  inter alia  that  the respondent had no locus standi to  file  the petition  and that the respondent was not the sole owner  of the premises in occupation of the appellant. It was  further contended  that  there was no relationship of  landlord  and tenant between the parties in view of the aforesaid  conten- tion.  Other  owners had not been joined as parties  and  as such the suit was not maintainable, it was submitted. It was further  urged that the permission granted by the  Slum  Au- thority  was invalid. Service of a proper notice dated  12th July, 1972 was denied. The respondent had filed reply to the opposition  by  the  appellant. The  First  Additional  Rent Controller held that there was proper service of the notice. But the validity of the notice was challenged on the  ground that  the premises were previously evacuee property. A  cer- tificate  of  sale had been issued in favour of  one  Sunder Singh  and the respondent. The respondent had admitted  that

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the  sale certificate was issued in the joint name  of  Smt. Sham Kaur, widow of Sunder Singh and the respondent. It  was stated  that the premises were let out to the  appellant  by the Custodian of the Evacuee Property and he had not entered into  any separate agreement of lease and the terms  of  the lease were never settled in the presence of the  respondent. In view of this admission it was held that 71 Smt.  Sham Kaur and the appellant both became owners of  the property  in question and both had become landlords  of  the premises  in  suit. It was argued that  the  other  co-owner ceased  to  be  landlord of the premises  because  rent  was continuously  paid to the respondent. The  First  Additional Rent  Controller held against the respondent in  respect  of this  contention. He was of the opinion that one of the  co- landlords  could  receive payment on behalf  of  the  other. Receipt of rent by one landlord would not by itself make him the exclusive owner when the premises were in fact owned  by more  than  on owner. The First Additional  Rent  Controller held  that  in the premises the respondent alone  could  not terminate the tenancy of the appellant. The First Additional Rent Controller distinguished the decision of this Court  in Sri  Ram  Pasricha v. Jagan Nath, [1976] 4 S.C.C.  184.  The First  Additional  Rent Controller held  that  one  co-owner could not terminate the tenancy when the property was  owned by  joint owners. The First Additional Rent Controller  also found that the landlord being respondent herein was not able to prove that there was no reasonably suitable accommodation with  him.  It was also held that his bona  fide  reasonable requirement was not proved.     Aggrieved by the aforesaid order of the First Additional Rent  Controller  the respondent herein went  up  in  appeal before  the Rent Control Tribunal, Delhi. The  Rent  Control Tribunal  noticed that the ground for eviction taken  up  by the  respondent was under section 14(1)(e) of the  Act.  The property in dispute had been let out for residential purpose and was bona fide required by the respondent for himself and members  of his family residing with him. The  Tribunal  no- ticed that the respondent had a large family comprising of 3 sons  and  5 daughters and the accommodation  with  him  was insufficient and he had no reasonably suitable accommodation with him.     The  Rent Control Tribunal after taking into  considera- tion the judgment of Shri Jaspal Singh, Additional  District Judge, Delhi, in connection with the suit filed by Smt. Sham Kaur for specific performance of the agreement to sell  came to the conclusion that the bona fide of the requirement  was established. The premises was let out according to  Tribunal for the residential purpose and it was bona fide required by the landlord for his requirement and for the members of  his family  and  that he had no  other  sufficiently  reasonable accommodation with him to satisfy his needs. On the question whether one co-owner could institute the suit for the  evic- tion in the facts and circumstances of the case, the  Tribu- nal came to the conclusion that he could. On the question of the property being let out for residential or 72 commercial  purposes after analysing the evidence  that  the use  of the property had been all along residential and  the property  had  been used only for residential  purpose,  the Tribunal  was  of the view that it would not  be  proper  to accept the position that the purpose of letting was residen- tial-cum-commercial.     On the question of the bona fide requirement the  Tribu- nal took into consideration the members of the family of the

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respondent  and noted that the evidence was that the  family consisted  of respondent himself, his wife, 3 sons,  all  of which were married and 5 daughters. Though the daughters  of the respondent were married the Tribunal came to the conclu- sion that the respondent as landlord had a right to ask  for accommodation  for the daughters occasional visits.  It  has also not been proved according to the Tribunal that the sons of  the respondent were not staying with him  and  therefore their  requirement had also to be taken into  consideration. Thereafter, taking into consideration need for a pooja-room, one  sitting  room and one barsati and keeping in  view  the large  family  of the respondent the Tribunal came  to  that conclusion  that the property in view of the present  family dependents of the respondent was bona fide required.     On  the  question  whether one co-owner  being  able  to maintain  the action for eviction, the Tribunal came to  the conclusion in view of the decision of this Court in Sri  Ram Pasricha v. Jagannath (supra) and the decision of this Court in  Kanta Goel v. B.P. Pathak and others, [1977] 2 SCC  814, in the facts and circumstances of the case that the respond- ent-landlord  as a co-owner alone could have maintained  the eviction petition.     Aggrieved  thereby there was a further second appeal  by the  appellant  to the High Court. The High  Court  on  30th January,  1986 dismissed the second appeal. The  High  Court held  that the action for eviction was justified in view  of section 14(1)(e) of the Act and the need of the landlord was bona fide and further the High Court affirmed the view  that a  co-owner in the facts and circumstances of the  case  was entitled to maintain an action for eviction. The High Court, therefore, rejected the second appeal.     Aggrieved  thereby  the tenant is before this  Court  in appeal  under Article 136 of the Constitution.  Two  conten- tions were urged by Mr. Rajinder Sachhar appearing on behalf of  the tenant. It was submitted that in the absence of  the other  co-owner, Smt. Sham Kaur, the suit for  eviction  was incompetent. It was secondly urged that the bona 73 fide need was not properly proved and the High Court was  in error in upholding the order of eviction on this ground. The first  question was gone into by this Court in the  decision of  Sri Ram Pasricha v. Jagannath (supra). There the  plain- tiff-respondent  was a co-owner of the suit  properties.  He had  filed a suit for the eviction on grounds of default  in payment  of rent and personal requirement. The  Trial  Court and  the Lower Appellate Court decreed the suit having  held that  the plea of reasonable requirement by the  members  of the  family  for whose benefit the premises  were  held  was established.  A single Judge of the High Court reversed  the decision  but the Division Bench restored the Trial  Court’s order.  There  was an appeal by the  tenant-defendant.  This Court  held  that the co-owner was as much an owner  of  the entire property as any sole owner of the property was.  This Court  reiterated that jurisprudentially it was not  correct to say that a co-owner of the property was not its owner. He owned every part of the composite property along with others and it could not be said that he was only a part-owner or  a fractional owner of the property. The position would  change only  when  partition would take place and  therefore,  this Court  found that it was not possible to accept the  submis- sion  that the plaintiff in that case who admittedly  was  a landlord  and co-owner of the premises was not the owner  of the  premises within the meaning of section 13(1)(f) of  the West Bengal Premises Tenancy Act, 1956. It may be  mentioned incidentally  that  in essential respects the  provision  of

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section 13(1)(f) of the West Bengal Premises Tenancy Act  is similar  or pari materia to section 14(1)(e) of the Act.  It is  not necessary, this Court reiterated, to establish  that the  plaintiff  was the only owner of the property  for  the purpose  of section 13(1)(f) of the West Bengal Act as  long as  he  was the co-owner of the property being at  the  same time the acknowledged landlord of the defendants. This  plea of the defendant-tenant, this Court found, could not  there- fore  be  accepted. This Court was of the opinion  that  the plea pertained to the domain of the frame of the suit as  if the  suit was bad for non-joinder of other plaintiff such  a plea  should have been raised, according to this Court,  for whatever  it was worth at the earliest opportunity.  It  was not  done in that case. This however is not the position  in the  instant case before us. This plea was taken in  defence and  raised as an issue before the Additional Rent  Control- ler. Secondly, it was held by this Court that the  relation- ship  between  the parties being that of  the  landlord  and tenant,  only the landlord could terminate the  tenancy  and institute the suit for eviction.The tenant in such a suit is estopped  from questioning the title of the  landlord  under section 116 of the Evidence Act. He could not deny that  the landlord  had title to the premises at the  commencement  of the tenancy. Under the general law, in a suit between 74 landlord  and  tenant the question of title  to  the  leased property was irrelevant. It is, therefore, inconceivable  to throw  out the suit on account of non-pleading of other  co- owners  as  such. There had been  clear  acknowledgment  and admission  in that case of the defendants and on  concurrent findings of this Court held the action was valid.     The same principle was reiterated by this Court in Kanta Goel  v. B.P. Pathak (supra). In that case a portion of  the first  floor of a building was let out by the owners to  the appellant  before this Court. The owner died leaving 3  sons and  a daughter. The first respondent who was in  occupation of  a  government allotment was required  by  government  to vacate these premises. He took proceedings under section 14A of  the Delhi Rent Control Act, 1958, against the tenant  of the other portion of the first floor and after evicting that tenant kept those premises vacant. Thereafter, he again took proceedings  under  section 14A against the  appellant.  The other  respondents did not join with the  first  respondent. The  first respondent claimed that he became the sole  owner of the first floor under the will of his father followed  by a  partition between himself and his brother. The  appellant contended  that  the respondent was not the sole  owner  and that the other respondents should have been made parties  to the  proceedings. The Rent Controller overruled  the  appel- lant’s  contention  and  ordered eviction.  The  High  Court impleaded  the other respondents and confirmed the order  of eviction.     In appeal to this Court, it was contended that, (1)  the 1st  respondent  was not the appellant’s landlord;  (2)  the premises  were not in the 1st respondent’s name and had  not been  let  out  by him; (3) the co-heirs  should  have  been impleaded  before the Controller; (4) the Controller  should have allowed the appellant to contest the owner’s will;  and (5)  Section  14A could be used twice over for  eviction  of tenants  from more than one premises. Allowing  the  appeal, this  Court held that on reading in the context of the  Rent Control  Law,  the simple sense of the  situation  was  that there should be a building which is let out, a landlord  who collected  rent and a tenant who paid it. The appellant,  as the tenant, had been paying rent to the 1st respondent.  The

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latter, together with the other respondents constituted  the body of landlords and by consent, implicit or otherwise, the 1st  respondent  was collecting rent on behalf  of  all.  He therefore  functioned  as  a landlord and  was  entitled  to institute  proceedings qua landlord. ’In his name’ and  ’let out’ by him read in the spirit of the provision and  without violence to the words of the section clearly convey the idea that  the  premises must be owned by him  directly  and  the lessee must be under him directly, 75 which  is the case, where the 1st respondent as  heir  steps into  the  shoes of his father who owned  the  building.  He represents the former owner and lessor falls within  section 14A of the Act. The accent on ’name’ is only to pre-empt the common class of benami evasions. It was further held that  a co-owner is as much the owner of the entire property as  any sole owner. Therefore, there was no substance in the conten- tion that the absence of the other co-owners disentitled the other co-owners from suing for eviction. In the High  Court, the  other co-owners who were parties did not object to  the claim of the 1st owner to the first floor on the strength of the will. The objection to the will was not a serious objec- tion.  The  other finding is not relevant  for  the  present purpose.     In  Kanta  Goel  case (supra) this  Court  followed  the decision  in  Sri Ram Pasricha v.  Jagannath  (supra).  This Court left open the question as to what would happen if some of  the co-owners wanted the tenant to continue contrary  to the relief claimed by the claimant co-owner. Relying on  the two aforesaid decisions in the facts of this case, in so far as the ratio of the two decisions was concerned, Mr. Rajind- er  Sachhar  contended  that as yet there  is  no  principle established  by  this Court that any one  of  the  co-owners could maintain an action for eviction. In the instant  case, it was contended that it was on record that a suit had  been filed by Smt. Sham Kaur against the respondent for  specific performance of an agreement to sell a portion of the proper- ty  and for direction to him to execute the  sale-deed  with respect  to a portion of the premises bearing Nos. 22 16  to 2222. That suit was decreed by Shri Jaspal Singh, Additional District  Judge, Delhi and Sunder Singh was ordered to  exe- cute the sale-deed in favour of the co-owner Smt. Sham Kaur. The High Court however recorded that the case of the parties was that there was an appeal against the judgment and decree and  the  same was pending and the portion with  respect  to which the direction has been given was not the portion which is  in  occupation of the tenant and which is  the  subject- matter  of  this  eviction petition. It  appears  that  even according to the decree this portion, i.e., 3 rooms and  the courtyard in question which is the subject-matter of dispute in the instant case, falls in the share of Sunder Singh  who had  filed the eviction petition. Furthermore, there  is  no evidence  that other cotenant the widow, Smt. Sham  Kaur  or her  representatives wanted the appellant to continue.  This in our opinion falls within the ratio of Kanta Goel v.  B.P. Pathak  (supra) where this Court clearly held that when  the other  co-owner did not object to the eviction one  co-owner could maintain an action for eviction even in the absence of other  co-owner. Here also Smt. Sham Kaur and her heirs  did not object to 76 the  claim for eviction made by the respondents  herein.  In that  view  of the matter and in the circumstances  of  this case, we are of the opinion that the ratio of the said  case will  apply and this suit will be maintainable even  in  the

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absence of all the owners to the eviction proceedings.     In  Tej Bhan Madan v. II Additional District  Judge  and others,  [1988] 3 SCC 137 this Court reiterated  that  there can  be a denial of the title by the tenant of his  landlord without  the tenant renouncing his character as such  where, for  instance,  he  sets up a plea of jus  tertii.  But  the implication  of the ground on which the denial of the  title was  made  was that if the tenant-appellant could  not  have denied  the vendor’s title by virtue of the  inhibitions  of the  attornment,  he could not question the  vendee’s  title either.  The  tenant did himself no service by  this  stand. This  Court  reiterated that the principle that  the  tenant cannot  deny the title of the landlord in its basic  founda- tions,  means no more than that under certain  circumstances law  considers it unjust to allow a person to approbate  and reprobate.  The law is that the estoppel of a  tenant  under section 116 of the Evidence Act was a recognition and statu- tory assimilation of the equitable principles underlying the estoppel  in relation to tenants. In this case the rent  had all along been collected by the respondent.     On the question of bona fide it was contended before  us by Mr. Sachhar that in the High Court, immediately prior  to the filing of the petition the landlord had rented out a few rooms on the ground floor, as such it pleaded that there was no  bona  fide. This point, the High Court  noted,  was  not raised in the first appeal. Furthermore, it was not specifi- cally  raised  in the pleadings. Therefore, the  High  Court found  that it was not proper for the parties to raise  this question in the second appeal. The High Court was right  and we cannot interfere on this ground. The High Court was  also invited  to  interfere with the findings of fact as  to  the bona  fide  nature  of the need of the  landlord.  The  High Court’s attention was drawn on the finding of the 1st  Addl. Rent  Controller contained in paragraph 11 of  the  judgment wherein it was held that the landlord was having  reasonably suitable accommodation. That plea had been reversed, it  was contended, without going into the merits of the case by  the Tribunal.  The  High  Court however noted  that  during  the pendency  of the second appeal an application was  filed  on behalf  of the appellant-tenant seeking that certain  events subsequent  to the passing of the impugned judgment  may  be permitted  to  be  brought on record.  The  application  was directed to be considered at the time of the hearing of  the appeal  before the High Court. The High Court appointed  one Advocate as the Local Commissioner to visit the 77 premises  and give his report regarding three rooms  on  the ground  floor of the premises in dispute which according  to the appellant had fallen vacant and was then in the  occupa- tion of the landlord. The landlord’s case was that the rooms were in occupation of the legal heirs of the tenants. It was pleaded  that those rooms could not be used for  residential purposes as they were merely meant to be used as stores. The Commissioner  appointed  by the High Court  filed  a  report which corroborated the stand of the landlord-respondent. The High  Court  had considered all this. In that  view  of  the matter  it was not possible for the High Court to have  fur- ther interfered with the findings of the appellate court.     Our attention was drawn to certain observations of  this Court in Vinod Kumar Arora v. Surjit Kumar, [1987] 3 Supreme Court  Cases  711. We do not find that the  High  Court  has committed  any error in following the principles  enunciated in  that  decision. Indeed, interference by the  High  Court with the finding recorded by the First Appellate Court would have in this case been unwarranted.

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   There  was nothing so far as the service of  notice  was concerned. In view of the principle enunciated by this Court in  V. Dhanapal Chettiar v. Yesodal Ammal, [1980] 1 SCR  334 we are of the opinion that in the facts and circumstances of the  case, the respondentappellant was entitled to  maintain this  eviction petition alone and he had proved the  grounds for eviction and that his need was bona fide and that he had no other suitable accommodation in his possession.     In  the premises, there is no merit in this appeal.  The appeal fails and is accordingly dismissed with costs. N.V.K.                                 Appeal dismissed. 78