BASDEV Vs. S S JAIN SABHA

JUDGEMENT

(1.) The petitioners before me are the legal representatives of one Mansa Ram who to begin with, was a contractual tenant under Sarup Chand landlord of the premises in dispute. The original tenancy contained in rent note, Exhibit A4 is dated 3rd April, 1962. The tenancy was for a period of one year starting from 7th March, 1962 to 6th March, 1963. However, after the end of the period of tenancy, Mansa Ram construed to be in possession of the premises. The original land owner Sarup Chand gifted the premises in dispute to the respondent S.S. Jain Sabha, Barnala, vide gift deed dated 8th September, 1966. Respondent Jain Sabha continued accepting rent from Mansa Ram and ultimately on 6th October, 1967, an ejectment application was filed against Mansa Ram by the Sabha claiming the arrears of rent from 7th March, 1967 to 6th October, 1967 and also claiming the premises to be needed for their personal use. Mansa Ram contested the said application on various grounds, but, ultimately, after trial, the learned Rent Collector accepted the ejectment application on 11th August, 1969 and ordered the ejectment of Mansa Ram. Mansa Ram filed an appeal against the said order which appeal was pending when Mansa Ram died on 15th March, 1973. The petitioners then moved an application for being impleaded as legal representatives of Mansa Ram with a view to continue the appeal. This application was opposed by the respondent- Sabha on the ground that Mansa Ram was a statutory tenant under the Sabha and, that being so, the legal representatives had no right to continue the appeal. The learned Additional District Judge, Barnala, who was exercising the powers of the appellate authority under the Rent Act, accepted the plea of the respondent-Sabha and dismissed the application as well as the appeal filed by the petitioners which according to him, had abated. It is this order of the learned appellate Authority dated 4th April, 1973, which is being assailed in this revision petition. It is not disputed by the learned counsel for the parties before me that if Mansa Ram was a statutory tenant under the respondent-Sabha his legal representatives have no right to continue the proceedings. This legal proposition is very well established and is no more in dispute. The question, therefore, to be determined is whether Mansa Ram at the time of his death was a statutory tenant under the landlord or was a contractual tenant. It is also very well settled that after the contractual tenancy comes to an end, it is open to the landlord and to the tenant to enter into a new contractual tenancy without even there being a written agreement and whether there is such a tenancy in existence would be a question of fact in each case which would be determined keeping in view the facts and circumstances of the case. This was so held by their Lordships of the Supreme Court in Ganga Dutt Murarka v. Kartik Chandra Dass and others, 1961 AIR(SC) 1067 and Bhawanji Lakhamshi and others v. Himatlal Jamnadas Dani and others, 1972 AIR(SC) 819 Mr. Harbans Lal, the learned counsel for the petitioner vehemently contends that there are three facts in this case which would show that Mansa Ram, in fact, was a contractual tenant under the landlord. The learned counsel points out that firstly, the respondent-Sabha continued accepting the rent from Mansa Ram from 8th September, 1966 to 6th March, 1967, and that would show that they accepted Mansa Ram as tenant. The learned counsel further points out the facts alleged in para 2 of the petition in which Mansa Ram was described as tenant and the petitioner-Sabha was described as a landlord and where there is also a mention of a notice being issued to Mansa Ram for vacating the premises. The learned counsel, therefore, contends that if the tenancy is the statutory one, according to law no notice under section 106 of the Transfer of Property Act was necessary to be given and since the notice in the present case was given by the respondent, therefore, it may be presumed that Mansa Ram was a contractual tenant. The learned counsel relies on Bhaiya Ram v. Mahavir Parshad, 1969 RCR(Rent) 1 , a Full Bench decision of this Court, in which it was held that in case of statutory tenancy no notice under section 106 of the Transfer of Property Act would be necessary to be given. From these three circumstances, the learned counsel contends that the conduct of the parties would show that the contractual tenancy had come into existence between Mansa Ram and the respondent-Sabha.

(2.) After hearing the learned counsel for the parties and going through the relevant case law, I am of the opinion that there is no merit in the contention raised by the learned counsel for the petitioners. It may be pointed out at the very outset that it cannot be disputed that it was for the petitioners who quoted themselves to be legal representatives of Mansa Ram to have pleaded and proved that Mansa Ram was a contractual tenant and not statutory tenant. This is so held by their Lordships of the Supreme Court in Bhawanji Lakhamshi's case . Therefore, in that context, the first thing which is to be seen is as to what were the averments made in the application which was filed by the petitioners before the learned appellate court for being brought on record as legal representatives of Mansa Ram. I do not find a single sentence in the application and even no averment has been made that Mansa Ram was a contractual tenant. I could understand if such an assertion had been made in the application itself and then the petitioners would have asked for an opportunity to prove that the tenancy was contractual but in the present case there is no pleading and no averment made in the application itself and, that being so, there is no question of petitioners leading any evidence to prove that the tenancy in question was a contractual tenancy.

(3.) As regards the acceptance of rent by the respondent and the mention in the ejectment application that the applicant-Sabha was the landlord and Mansa Ram was the tenant, suffice it to say that even if there was no contractual tenancy in existence according to the provisions of the East Punjab Urban Rent Restriction Act, the Sabha was a landowner and Mansa Ram was a tenant and, therefore, there was nothing wrong in the landlord accepting the rent from his tenant. The averment in the application nowhere points out that the landlord ever pleaded that Mansa Ram was statutory tenant.