INDERJIT KAUR Vs. BAIJ NATH

JUDGEMENT

(1.) THIS petition filed under sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') is directed against the judgment dated 5.11.1999 passed by the Appellate Authority, Hoshiarpur upholding the judgment of the Rent Controller dated 17.12.1997. Both the Courts below have held that there is relationship of tenant and landlord between the tenant-petitioner Ganga Bishan (now represented by his legal representatives) and the landlord-respondent. It has further been held that the tenant-petitioner would not lose his status of tenant merely because his wife Inderjit Kaur and purchased two marlas of land vide registered sale deed dated 12.6.1990 and has become co-sharer/co-owner of the land out of joint khata measuring 25 kanals 8 marlas as the total area of 25 kanals 8 marlas includes the demised shop. The Rent Controller on the basis of the pleading of the parties framed the following issues :-

(2.) THE admitted facts are that the landlord-respondent has been a co-sharer in the land measuring 25 kanals 8 marlas shown in jamabandi Ex.R2. The suit property forms part of this property. It is further admitted position that in 1963 the tenant-petitioner took the suit property from the landlord-respondent initially for placing his wooden khokha on this land which is a vacant plot and a rent note Ex.AW5/1 dated 23.12.1963 was executed. Subsequently, on 10.5.1969 a new rent note was executed between the parties. Roof of the khokha was changed and pucca shop of absetos/cement roof was constructed in place of wooden khokha. By new rent note Ex. A2 dated 10.5.1969 the rent was fixed at Rs. 20/- p.m. The tenant-petitioner, therefore, was not in possession of a vacant plot of the land under the landlord-respondent. Obviously, he was a tenant in a shop like structure. At no stage, the tenant-petitioner handed over the possession of the demised shop to the landlord-respondent. It is in theses circumstance that the learned Appellate Authority while affirming the view of the Rent Controller held as under :-

(3.) MR . Rajive Bhalla, learned counsel for the tenant-petitioner has pointed out that during the pendency of the proceedings before the Rent Controller, the tenant-petitioner Ganga Bishan had died and on 21.8.1997 the legal representatives of the tenant-petitioner, namely, his wife Inderjit Kaur, his son and a daughter now representing him were impleaded. According to the learned counsel, in such a situation Inderjit Kaur has acquired dual status because she has inherited the tenancy rights as well as she had become co- sharer in the property in pursuance of purchasing two marlas of land from the total area of 25 kanals 8 marlas jointly owned by landlord-respondents Baij Nath and other co-sharers, namely, Sharan Lata, Sudarshana, Krishna and Ram Lubhaya. The learned counsel has also drawn my attention to the statement of landlrod-respondent AW-9 alleging that the change was made by Ganga Bishan and chaubara was built by Inderjit Kaur. In support of his submission, the learned counsel has relied upon Section 44 of the Transfer of Property Act, 1882 (for brevity, 'TPA'). The learned counsel has also placed reliance on a Full Bench judgment of this Court in the case of Bhartu v. Ram Sarup, 1981 P.L.J. 204. He also placed reliance on a Division Bench judgment in the case of Bachan Singh v. Swaran Singh, 2000(2) PLJ 143 and Piara Lal and others of Gurdaspur v. Tirath Singh, 1985 HRR 656. The learned counsel has further argued that no Court should pass a decree which cannot be executed because the objection of the tenant-petitioner Inderjit Kaur would be entertained by the executing Court. Under Section 47 and Order XXI Rule 15 of the Code, the possession of the successor tenant-petitioner Inderjit Kaur and her sons cannot be disturbed till the rights of the parties are appropriately ascertained by a decree passed in a partition suit. For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Jagdish Dutt v. Dharam Lal, 1999(1) RCR(Rent) 466 (SC) : (1999) 3 SCC 644. It has also been submitted by the learned counsel that in such a situation the doctrine of merger as contemplated by Section 111 of the TPA would be attracted.