KANSO DEVI Vs. KISHAN CHAND

JUDGEMENT

(1.) FACTS giving rise to this second appeal may briefly be stated as follows: On 9th october, 1954, Shrimati Prem Kaur and her sons (hereinafter referred to as the original vendors) sold certain property to Kisnan Chand (hereinafter referred to as the vendee ). This sale was successfully pre-empted by Shrimati Kanso Devi and a decree for possession by pre-emption was granted in her favour on 18th of november, 1955. A shop, being part of the property which was the subject-matter of the sale, was in the occupation of one Brij Lal as a tenant under the vendors. On 4th of February, 1955, this Brij Lal executed a fresh rent note, copy Exhibit 0. 8, in which he recognised Kisnan Chand as the landlord and the tenancy was to date bach to 9th of October, 1954, the date of the sale, the actual possession of the shop was with one Bal Krishan. In execution of the decree for possession shrimati Kanso, the pre-emptor-decree-holder, obtained possession of the property which was the subject-matter of the sale including the shop in dispute. Bal Krishan, who was in actual possession willingly surrendered possession. Brij lal thereupon filed an application under Order 21, Rule 100, Civil Procedure Code, claiming that Bal Krishan was a mere servant of Brij Lal who had a right to continue in possession as a tenant under Kishan Chand and that his possession should be restored. On behalf of Shrimati Kanso Devi it was urged that Bal Krishan was, in fact, a sub-tenant of Brij Lal and he having delivered the possession voluntarily, application under Order 21, Rule 100 was not competent. This objection application was accepted and possession was ordered to be restored to brij Lal. Being dissatisfied with this, Shrimati Kanso Devi brought the suit, out of which the present appeal has arisen, under Order 21, Rule 103, Civil Procedure code. She reiterated her position that Bal Krishan was a sub-tenant and further stated that even if he was only an employee, he having delivered possession on behalf of Brij Lal, the application under Order 21, Rule 100 was not competent and that the only remedy which was open to him was to file a suit. The only issue was as follows : "whether the order dated 24th of April, 1956, of Shri Des Raj Dhameja, sub-Judge, 1st Class, Amritsar, restoring the possession of the property in suit to defendant No. 4 under Order 21, Rule 100 of the Civil procedure Code is illegal and not binding upon the plaintiff for reasons given in para No. 4 of the plaint?" the Trial Court held that Bal Krishan was a mere servant and the possession obtained from him was a collusive one because Bal Krishan was given back the possession of the shop two months after the alleged delivery of possesslen in execution proceedings and that Brij Lal held the property on his own account and, consequently, possession had been rightly ordered to be restored to Brij Lal. This order was confirmed by the lower Appellate Court.

(2.) THE main point urged by Mr. Tuli, the learned counsel for the appellant is that even if Brij Lal be said to be a tenant holding under Kishan Chand, he cannot be said to be in possession of the properly "on his own account". For this, he placed reliance mainly on Jairam v. Nowroji, AIR 1922 Bom 449 (2) -- a judgment by macleod, C. J. The head-note runs as follows :

(3.) THE learned counsel for the respondent, however, urged that in view of Section 13 (2) and other provisions of the Urban Rent Restriction Act a tenant has a right to continue in possession in his own right even as against the original landlord and that, consequently, in the present case Brij Lal being a tenant even under the original vendors, Kishan Chand vendee could not eject him and that the pre-emptor, who only steps into the shoes of the vendee, cannot possibly get a better title or right to eject the tenant than the original vendee or the vendor. He referred to a Calcutta case reported in S. N. Talapalra v. Bengal Bonded Ware house Association, AIR 1953 Cal 593. In that case A, a landlord, obtained a decree for ejectment against his tenant B. The possession was actually with C, a subtenant from B. C resisted delivery of possession in execution of the decree obtained by A against B but he was ousted with the police help. C thereafter applied for restoration of possession to him under Order 21, Rule 100 and Section 144 of the Civil Procedure Code and Section 13 (2) of the West Bengal Premises rent Control (Temporary Provisions) Act (17 of 1950 ). This Section 13 (2) treated certain types of sub-tenants as if they were tenants directly under the landlords. C happened to be that type of sub-tenant. It was held that in order that the landlord may recover possession from the sub-tenant he must show that he has a right to treat the sub-tenancy at an end and to recover possession from the sub-tenant on the footing that the subtenancy no longer exists. It was further held that in view of the provisions of Section 13 (2), C, who was a sub-tenant under the tenant of the first degree, would be deemed to be a tenant under the landlord A, and A cannot, therefore, treat the petitioner C as trespasser. This ruling clearly supports the contention of the learned counsel for the respondent that inasmuch as under section 13 of the Punjab Urban Rent Restriction Act "a tenant in possession of a building shall not be evicted" in execution of a decree except in accordance with the provisions of the "aforesaid section", a right is created in the tenant to continue in possession and because this right enures in his favour even as against the original landlord he must be treated to be in occupation of the property "in his own right" within the meaning of Order 21, Rule 100. I feel there is force in this contention. No doubt it is open to such a tenant to bring a suit but that does not preclude him from seeking the summary remedy of filing an application under order 21, Rule 100.