Sunday, 23 June 2019

Whether co-owner who has not inducted a tenant can seek eviction of such tenant?

Examining the proposition from another angle, it may be noticed that the tenancy rights are indivisible and a co-owner is competent to induct tenant in part of whole of the building. The tenant cannot be evicted from part of the tenant premises. An act of the co-owner of inducting a tenant binds all other co-owners. After a tenant has been inducted, he is a tenant under all the co-owners. Therefore, a co-owner who has not inducted a tenant can seek eviction of such tenant. The right and liabilities of the co-owner creates a legal fiction of tenancy against all co-owner.
In view of the rights of the co-owner as explained by the Larger Bench Judgment of this Court as well as by the Hon'ble Supreme Court in M/s India Umbrella Manufacturing Co., Dhannalal's cases (supra) and Mahavir Prasad Jain v. Manohar Lal Jain 2006(2) SCC 724, a co-owner NRI can seek eviction of the tenant in a building  though the tenant was not inducted by such NRI and that it is not necessary that all other co-owners should be Non Resident Indians.

Punjab-Haryana High Court
Smt. Bachan Kaur And Others vs Kabal Singh & Another on 26 April, 2011
Civil Revision No. 4025 of 2006    
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE ARVIND KUMAR
The following questions have been referred to Larger Bench vide order dated 29.9.2010 passed by the learned Single Judge:-
1. Whether NRI/landlord who is a co-owner with the other landlords, who do not have the same status, as that of NRI can maintain a petition for eviction of the tenant from the property jointly owned by all of them?
2. Whether the premises from which eviction is sought under Section 13-B of the Act is to be let out by NRI/landlord or his duly authorized person acting on his behalf, or it can also include the letting by some other co-owner or predecessor-in-interest in their own right and not under the authority of NRI/landlord?
The said questions of law relates to the interpretation of the provisions of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short `the Punjab Act'), as inserted by the Punjab ActNo. 9 of 2001.
The facts relevant are taken from Civil Revision No. 4025 of 2005. The petitioner-Bachan Kaur pleaded that the respondent was inducted as tenant in the building by her late husband Kabal Singh vide rent note dated 21.4.1980 as a co-owner with her and that the petitioners intend to come back to India permanently and that they have completed five years ownership over the property in question. It may be noticed that Kabal Singh, husband of petitioner-Bachan Kaur, died and his estate is inherited by his two sons namely, Gurmail Singh and Rajinder Singh. The trial Court dismissed the petition, inter-alia, for the reasons that the petitioners are not proved to be Non Resident Indians (for short NRI's) and that the petitioners have not returned to India, in the last more than six years before 2003 when statement of Tarsem Singh, one of the petitioners was recorded.
The Punjab Act is one of the fallouts of Second World War which led to rent legislations in various provinces of British India. The first such legislation in Punjab came in force in the year 1941. The present Punjab Act was enacted for restricting the increase of rents of certain premises and to protect the tenants from mala-fide attempts of their landlords to procure their eviction. Subsequently two majors amendments have been carried so as to provide summary right of eviction to specific category of landlords. Vide Punjab Act No.2 of 1982, a summary right of eviction was given to specified landlord i.e. retiring defence and civil personnel. Initially, Section 13-B was Civil Revision No. 4025 of 2006 [ 3] inserted by Punjab Ordinance No.10 of 2000, which has since been replaced by the Punjab Act No. 9 of 2001. A right has been given to the NRI in order to seek summary eviction in such amending Act. The object and reasons of enactment of Act No. 9 of 2001 are as under:-
"The State Government had been receiving representations from various NRIs. Individual and through their associations highlighting the plight of Indian residents returning to India after long years abroad. It was represented that the NRIs having spent long years of their life abroad did not find conditions congenial in their own country on their return either to settle down or to take up any business. On account of rigid legal provisions of existing Rent laws, the NRIs, were unable to recover possession of their own residential building from the tenants Government having considered the situation had decided that the existing Rent Legislation viz. East Punjab Urban Rent Restriction Act, 1949, should be amended to provide relief to NRIs to enable them to recover possession of a residential or scheduled building and/or one non residential building for their own use. As the mater required immediate action, it was decided that an Ordinance to give effect to this amendment should be issued."
Some of the Single Bench judgments of this Court have taken a view that one co-owner, who is an NRI, as defined in Section 2(dd) of the Punjab Act, is competent to seek eviction of a tenant although the other co-owners may not be NRIs. Before the learned Single Judge reliance was placed upon the Constitutional Bench judgment of the Hon'ble Supreme Court in Nathi Devi v. Radha Devi Gupta, 2005 (2) SCC 271 to contend that right of summary eviction is available to only those NRI's who have let the premises to the tenant themselves. In the said judgment, the provisions of Delhi Rent Control Act, 1958 (for short `the Delhi Act'), were subject matter of consideration, particularly Section 14Dthereof, which conferred right of eviction upon a widow seeking eviction of a tenant in a summary manner.

Learned counsel for the landowners has argued that a co-owner has an interest in whole of the property and in every parcel of it and that the possession of one co-owner is in the eyes of law possession of all. Such rights of co-owner have been considered and recognized long back by a Division Bench of this Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528, later reiterated by a Three-Judge Bench judgment in Bhartu v. Ram Swarup, 1981 PLJ 204, and Five-Judge Bench Judgment in Ram Chander v. Bhim Singh & others, 2008(3) PLR 747. Even the Hon'ble Supreme Court in Pokhar (Dead) By LRs v. Ram Singh, 2009(16) SCC 625, has affirmed the Full Bench judgment of this Court in Bhartu's case (supra) and in Jai Singh v. Gurmej Singh, 2009 (15) SCC 747. The Court held to the following effect in Jai Singh's Case (supra):-
"9. It is to be noted that in the subsequent Full Bench judgment in Bhartu case, the earlier decision in Lachhman Singh case was distinguished on facts. The principles relating to the inter-se rights and liabilities of co-sharers are as follows:-
(1) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of  the joint property except in the even of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co- owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition."
Learned counsel for the landowners have further argued that the right of a co-owner to seek eviction has been accepted by the two Division Bench Judgments of this Court in Ram Piari v. Dr. Kesho Ram, 1980(2) RCR (Rent) 137 and Mathra Dass v. Ram Piari, AIR 1982 Punjab 286. It is also contended that right of co-owner to seek eviction has been accepted by the Hon'ble Supreme Court in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, wherein it has been held to the following effect:-
"29. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that he plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants."
In a later judgment reported as Dhannalal v. Kalawatibai & Ors., AIR 2002 SC 2572, the provisions of Section 23-A(b) and 23-J of the M.P. Accommodation Control Act, 1961, were the subject matter Civil Revision No. 4025 of 2006 [ 6] of consideration, which provided summary eviction to a classified landlord. While considering the question, if one of the co-owners is not a classified landlord and whether a classified landlord can seek eviction of the tenant as a co-owner, the Hon'ble Supreme Court held to the following effect:-
"16. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath and Ors.¸ (1976)4 SCC 184: 1976 RCR (Rent) 832 (SC), Kanta Goel v. B.P.Pathan and Ors., (1977)2 SCC 814: 1979(1) RCR (Rent) 484, and Pal Singh v. Sunder Singh (dead) by LRs and Ors., (1989)1 SCC 444: 1989(2) RCR (Rent) 331 (SC), that one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other co- owners if such other co-owners do not object. ........
17. It follows that a widow, who is a co-owner and landlady of the premises can in her own right initiate proceedings for eviction under Section 23-A(b), as analysed hereinbefore, without joining other co- owners/co-landlords as party to the proceedings if they do not object to he initiation of proceedings by such landlady, because she is the owner of the property and requires the tenanted accommodation for the purpose of continuing or starting the business of any of her major sons. The major sons though co-owners/co-landlords may not have been joined as party to the proceedings, but it would not adversely affect the maintainability of the proceedings. It would also not make any difference if they are also joined as party to the proceedings. Their presence in the proceedings is suggestive of their concurrence with the widow landlady maintaining the proceedings in her own right. The presence of such co-
landlord, as co-plaintiffs or co-applicants, as are not classified landlords as defined in Section 23-J of the Act does not alter the nature of claim preferred by the Civil Revision No. 4025 of 2006 [ 7] widow landlady and, therefore, does not take the proceedings out of the scope of Section 23-A(b). Convesely, the major sons or any of them suing alone without joining a widow co-landlord as party to the proceedings may institute a suit before a Civil Court under Section 12 of the Act, pleading that the non- residential premises were required bona-fide by them or any of them for the purpose of continuing or starting their own or his own business as they would be co- owners thereof and the requirement will be theirs. It would not make any material difference if the widow co- landlord was joined as party to the proceedings either as plaintiff or as co-applicant because the case pleaded in the plaint would squarely fall within the ambit of clause (f) sub-section (1) of Section 12 of the Act." Still later in M/s India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (dead) by Lrs. Smt. Savitri Agarwalla, (2004)3 SCC 178, it was held by the Hon'ble supreme Court to the following effect:-
".....It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners (See: Sri Ram Pasricha v. Jagannath and others, (1976)4 SCC 184; Dhannalal v. Kalawatibai and others, (2002)6 SCC 16 (Para 25): 2002 (1) RCR (Rent) 126 SC. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-
owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law."
On the other hand, on behalf of the tenants, it is not disputed that a co-owner is entitled to seek eviction of a building owned with other co-owners, who may or may not be NRI, but it is asserted that such right does not entitle an NRI to seek summary eviction provided under Section 13-B of the Punjab Act.
A co-owner is owner of each part of the property in husband like manner with other co-owners. He is entitled to seek ejectment of tenant in premises for benefit and for the benefit of all other co- owners. Such right is subject to one exception that none of the remaining co-owner objects to such action of the petitioning co-owner. If one of the owners happens to be a NRI, he does not relinquish his character and status as that of co-owner. Thus an order of ejectment obtained by a NRI - co-owner will bind other co-owners but will not entitle other NRI and/or an co-owner to seek ejectment of tenant from another building either owned solely by such co-owner or jointly with other persons as co-owner in exercise of right of eviction granted to an NRI by Section 13-B of the Punjab Act. Thus in respect of first question of law, it is held that a co-owner, who is Non-Resident Indian, even when other co-owners are not Non-Resident Indians, can maintain a petition for ejectment for the benefit of all the co-owners.
The second question is that whether, a NRI, who has not let out the premises, can maintain petition for ejectment. It is contended by the learned counsel for the tenants that Section 13-B of the Punjab Act confers rights upon an NRI to seek eviction of a tenant only if the building is "let out by him or her". It is contended that if the tenant has not been inducted by an owner seeking eviction of a tenant, such as if he has either inherited the same or purchased the same, he is not Civil Revision No. 4025 of 2006 [ 9] entitled to seek eviction of a tenant not inducted by him. Reliance is placed upon Nathi Devi's case (supra), wherein the earlier judgment in Surjit Singh Kalra v. Union of India 1991(2) SCC 87, was approved.
The judgment of the Hon'ble Supreme Court in Nathi Devi's case (supra), is the star anchor of the arguments raised by the learned counsel for the tenants, but in our view the said judgment considering the provisions of the Delhi Act, is not applicable to the facts of the present case arising out of the Punjab Act. To appreciate the arguments raised by counsel for the parties, the provisions of the two Acts is required to be kept in view. Such provisions are:-

 East Punjab Urban Rent Restriction      Delhi Rent Control Act, 1958
             Act, 1949




Section 2- Definitions.-                 Section 2- Definitions
In this Act, unless there is anything In     this      Act,   unless   the   context
repugnant    in     the    subject   or otherwise requires-
context:--


(a) "building" means any building or (i) "premises" means any building or part of a building let for any purpose part of a building which is, or is whether being actually used for that intended to be, let separately for use purpose or not, including any land, as a residence or for commercial use godowns, out-houses, or furniture or for any other purpose, and let therewith, but does not include a includes.- room in a hotel, hostel or boarding- xxxx xxxx house.
(c) "landlord" means any person for (e) "Landlord" means a person who, the time being entitled to receive for the time being is receiving, or is rent in respect of any building or entitled to receive, the rent of any tented land whether on his own premises, whether on his own account or on behalf or for the account or on account of or on benefit, or any other person, or as a behalf of, or for the benefit of, any trustee, guardian, receiver, executor other person or as a trustee, or administrator for any other guardian or receiver for any other person, and includes a tenant who person or who would so receive the sublets any building or rented land rent or be entitled to receive the in the manner hereinafter authorized rent, if the premises were let to a and, every person from time to time tenant;
deriving title under a landlord (dd) "Non-resident Indian" means a person of Indian origin, who is either permanently or temporarily settled outside India in either case-
(a) for or on taking up employment outside India; or
(b) for carrying on a business or vocation outside India; or
(c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for an uncertain period;
14. Protection of tenant against eviction: -
Civil Revision No. 4025 of 2006 [ Section 14(6) of the Delhi Act restricts the right of a landlord to seek eviction in the event of acquisition of title. In Surjit Singh Kalra's case, the court held that a transferee can seek eviction only under Section 14(1) of the Act and not under Section 14(B) of the Delhi Act contemplating summary right of eviction. It held:
21. It was next urged that sub-section (6) of Section 14 is also attracted to applications under Sections 14-B to 14-D. This contention overlooks the express wordings of sub-section (6). It refers to premises acquired by transfer and thereby the transferee becoming the landlord. Such a landlord cannot bring an action for eviction of tenant in possession of the acquired premises within a period of five years from the date of acquisition. After five years such a landlord can ask for eviction of the tenant under Section 14(1)(e). This is indeed, as we said earlier, a protection to the tenant. The original landlord who cannot evict the tenant since he has got many houses under his occupation cannot use the device by transferring one of the houses to a third party who could easily evict such a tenant. The tenant in occupation of the transferred premises gets a protection from eviction for a minimum period of five years. Section 14-B and other allied provisions refer to the premises let out and not acquired by transfer. One may become an owner of the premises by transfer but the tenant in occupation of the transferred property cannot be evicted by resorting to Sections 14-B to 14- D. If the transferee wants to evict the tenant of such premises he must take action only under Section 14(1)(e).
In Nathi Devi's case, the Court held that the provisions of Sub Section 6 of Section 14(1) and Section 14D of the Delhi Act have to be harmoniously interpreted. It held:
30. Sections 14(6) and 14-D of the Act, if the rule of harmonious construction is not applied, would lead to an anomaly. Such an anomaly can be removed if the negative test contained in Section 14(6) of the Act is applied in the construction of Section 14-D thereof, that is to say, as in terms of the earlier provision a transferee landlord cannot evict a tenant before expiry of five years from the date of purchase, Civil Revision No. 4025 of 2006 [Section 14-D which provides for immediate recovery of the tenanted premises would not be applicable.
It has been further held that the expression premises let out by him is used in Section 14-Band 14-C of the Delhi Act, but the expression used in Section 14-D is premises let out by her or by her husband. It was held to the following effect:-
".....The scheme of these sections appears to be that where the landlord is alive and the premises have been let out by him, he only can make an application for immediate possession of the premises for his own use. Only in the case of his death his dependent under Section 14-A and his widow under Section 14-D can seek immediate possession of the premises. The use of the expression, 'let out by him' in Section 14-B and 14- C and the expression, "let out by her, or by her husband' in Section 14-D have significance. If it was unnecessary in the scheme of these sections as to who had actually let out the premises, the legislature would not have used the term "let out by him" or 'let out by her, or by her husband'. In interpreting a provision one cannot assume out that the words employed by the legislature are redundant. Section 14-D gives a right to file an application under that provision only to a widow who had let out the premises or whose husband let out the premises. Consequently, if the premises had been let out by someone else, Section 14-Dwill not apply."
xx xx xx By expressly providing that the premises must be one let out by her or by her husband, the legislature has clearly excluded from the purview of the said provision "premises let out by any other person" even if in course of time the widow may have become its landlord. We are obliged to read the provision as it is, and cannot give it a meaning by deleting an expression expressly employed by the legislature. The expression, "let out by her, or by her husband" is not an expression which permits of any ambiguity. We must, therefore, give its Civil Revision No. 4025 of 2006 [ normal meaning. So understood the conclusion is inescapable that the legislative intent was only to confer a special right on a limited class of widows viz, the widow who let the premises or whose husband had let the premises before his death, and which premises the widow requires for her own use."
In Surjit Singh Kalra's case (supra), the tenant's appeal was dismissed by the Supreme Court after returning a finding that the tenant cannot contest the eviction petition filed by the landlord under Section 14-B on the grounds specified in Section 14(1)(e) of the Delhi Act. Sub-section (6) of Section 14 of the Delhi Act grants right of eviction to a landlord after a period of five years from the date of acquisition by transfer if the eviction is sought for bona-fide personal use under Section 14(1)(e) of the said Act. In terms of Nathi Devi's case, the summary eviction in terms of Section 14-D cannot be availed by transferee landlord as it is not leading to immediate possession. Section 14(6) and Section 14D of the Delhi Act deal with distinct grounds of eviction whereas, Section 13B of the Punjab Act itself contain provision of acquisition of title.
In the Punjab Act, as originally enacted, the word owner is not used in the entire Act. Section 13-B of the Punjab Act confers a right of eviction to an owner for the first time. Therefore, an ordinary meaning of such expression has to be applied while interpreting the provisions of the Punjab Act. The proviso to sub-section (1) of Section 13-B of the Punjab Act, regulates the right of eviction of such owner i.e. after a period of five years from the date of becoming the owner of such a building. The proviso is an exception to the substantive provision when it restricts right of such owner to seek eviction after five years and is explanatory, when it provides that an owner shall be entitled to seek eviction after five years of becoming owner. The right of eviction under the Punjab Act, has been given to an owner in respect Civil Revision No. 4025 of 2006 [ of residential, scheduled or non residential building let out by him or her, required for his or her use or for the use of anyone ordinarily living with or dependent upon him or her. The proviso explains that an owner is entitled to seek ejectment after five years of acquiring title. It is well settled that all words in the statute have to be given meaning. The argument that an NRI is entitled to seek eviction after five years of becoming owner only if the tenant has been inducted by him does not serve the purport of the Act. If such meaning is assigned, the right of eviction given to NRI becomes otiose. Therefore, restricting the right of eviction to an owner who has let out the building alone cannot be reconciled with the proviso. The harmonious construction of proviso and the substantive provision is possible by accepting the argument that the tenant need not be necessarily inducted by the petitioner- owner more so when a tenancy is interest in the immoveable property transferred with the property itself.
The ownership of the building is the necessary condition for maintaining the eviction petition under Section 13-B of the Punjab Act. The letting out by the petitioner is not a sine-qua-non to maintain eviction petition in terms of the Punjab Act. One can acquire ownership right by virtue of a purchase or by inheritance. Though in our opinion, the title derived by inheritance is legal consequence and should exclude limit of five years, but since the said question has not been debated before us, we so no more in the present case. We leave such question to be decided in an appropriate case later. Therefore, an owner has a right to seek eviction after the period of five years from the date of becoming owner of such building, irrespective of the fact that the building has been let out by him or her. Once a person has become owner of the property, the tenancy rights being attached to the building stand transferred to him in the same manner as all other rights to a building, which has been purchased by him or her. The Civil Revision No. 4025 of 2006 [ object of granting summary right of eviction to a Non Resident Indian is to provide mechanism for possession of their own residential building, as an exception to rigid legal provisions of the existing provisions of the law. Such right is manifested when right of eviction is conferred on an owner. If the argument of the learned counsel for the tenants is to be accepted that the intention was to restrict the right of eviction to only those NRI's who have let out the premises, such interpretation would negative the very purpose of the insertion of the mechanism of summary eviction contemplated under Section 13- B of the Act. The expression let out by him in the context of Section 13-B of the Punjab Act, does not require strict interpretation as interpreted by the Supreme Court in Nathi Devi's case (supra), as such interpretation is neither warranted nor advances the purpose of granting summary right of eviction under Section 13-B of the Punjab Act. Therefore, the Judgment in Nathi Devi's case (supra) cannot be applied to the cases arising out of the Punjab Act.
Examining the proposition from another angle, it may be noticed that the tenancy rights are indivisible and a co-owner is competent to induct tenant in part of whole of the building. The tenant cannot be evicted from part of the tenant premises. An act of the co-owner of inducting a tenant binds all other co-owners. After a tenant has been inducted, he is a tenant under all the co-owners. Therefore, a co-owner who has not inducted a tenant can seek eviction of such tenant. The right and liabilities of the co-owner creates a legal fiction of tenancy against all co-owner.
In view of the rights of the co-owner as explained by the Larger Bench Judgment of this Court as well as by the Hon'ble Supreme Court in M/s India Umbrella Manufacturing Co., Dhannalal's cases (supra) and Mahavir Prasad Jain v. Manohar Lal Jain 2006(2) SCC 724, a co-owner NRI can seek eviction of the tenant in a building  though the tenant was not inducted by such NRI and that it is not necessary that all other co-owners should be Non Resident Indians.
The reference is answered accordingly.
Let the petition be placed before the learned Single Judge, for decision, as per Roster.
(Hemant Gupta) Judge (Arvind Kumar) Judge April 26, 2011 ds
Print Page

No comments:

Post a comment