KIDAR NATH Vs. SHRIMATI KARTAR KAUR

JUDGEMENT

(1.) THE demised property bears property -tax No. BXIII -28 -S/439 -A and is situate in Gali No. 3 of Putlighar at Amritsar. It was the property of Avtar Singh, who had let it to the Applicant, Kidar Nath, under the rent -note, Exhibit A/2 of July 1, 1960. The tenancy was for eleven months from July 1, 1960. The other terms in the rent -note that the necessary to note are (a) that the tenant, the Applicant, was given a right to introduce sub -tenants, (b) that he having already constructed six rooms at his own costs in the demised property had agreed that he would remove the structures when he would want to vacate the demised property, and (c) that he was to deduct Rs. 50 per annum from rent for repairs and whitewashing of the demised property. The demised property originally had three rooms. It appears from the rent -note Exhibit A/2, that it had been in the tenancy of the Applicant since 1955. He had before the date of the rent -note, Exhibit A/2, built six rooms m addition to those that were already on the property when he took the same on rent. In the rent -note, Exhibit A/2, all this was clearly stated and the Applicant expressly agreed that he would remove the structure of the six rooms built by him at his own cost when he would be wanting to vacate the demised property. This property was purchased by the Respondent, Kartar Kaur, from Avtar Singh by a registered sale deed of December 16, 1964. When the Applicant took his property on rent from Avtar Singh, room marked 'A' in the plan, Exhibit A/3, with the rent -note, Exhibit A/2, was in the tenancy of Shiv Textile Mills, and the Applicant admits that in June, 1964, he sublet that room to Naval Kishore Silk Mills. The subletting of the room was, therefore, before the sale of the property in favour of the Respondent.

(2.) ON March 18, 1966, the Respondent sought eviction of the Applicant under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949), hereinafter referred to as 'the Act', on two grounds, (a) non -payment of arrears of rent from December 16, 1964, and (b) subletting of part of the demised property without the written consent of. the landlord. The Applicant paid the arrears of rent pursuant to proviso to Section 13(2)(i) of the Act, and that ceased to be a ground of eviction. He admitted that he had sublet the room marked 'A' in the plan, Exhibit A/3, with the rent -note Exhibit A/2, to Naval Kishore Silk Mills in June, 1964, but took the defences (i) that he having, at his own cost, constructed six rooms on the demised property, that property ceased to be demised property from the landlord to him as tenant, for what was demised to him under the rent -note, Exhibit A/2, was not the shape of the property after he had constructed on it six rooms at his own cost and so the Act had no application to the case and the Rent Controller had no jurisdiction to entertain and dispose of the eviction application of the Respondent, and (ii) that his tenancy of the demised property has been a permanent tenancy and even after the expiry of eleven months from the date of the rent -note, Exhibit A/2, he has held the demised property on same terms and conditions as in the rent -note Exhibit A/2, so that in the terms of that rent -note he has had all the time the written consent of the landlord to induct sub -tenants. The Rent Controller by his order of December 12, 1966 negatived the defences of the Applicant and made an order of eviction against him on the ground of subletting of a part of the demised property without the written consent of the landlord. The Appellate Authority, on the appeal of the Applicant, affirmed the order of the Rent Controller on December 13, 1967, after consideration of the grounds on which the Applicant sought to escape eviction by urging that the tenancy with him of the demised property was a permanent tenancy and he held the same subject to the same terms and conditions as in the rent -note, Exhibit A/2, thus having the written consent of the landlord to induct a sub -tenant like Naval Kishore Silk Mills in a part of the demised property.

(3.) THE other argument that is urged by the learned Counsel for the Applicant is that the tenancy with the Applicant is a permanent tenancy and the Applicant continues to hold the demised property on exactly the same terms and conditions as in the rent -note, Exhibit A/2. It has already been stated above that under that rent -note he was given the right to induct sub -tenants. The rent -note was only for eleven months. In spite of that what is urged on the side of Applicant is that fixation of the term of tenancy be ignored and after considering other term in the rent -note it be concluded that it is a case of permanent tenancy. The first condition in the rent -note upon which reliance in this respect is placed is the right given to the Applicant to sublet the demised property, but the giving of such a right alone cannot be taken to indicate any intention of the parties to create a permanent tenancy, for such a term is not unusual in ordinary tenancies and even Section 13(2)(ii)(a) of the Act envisages a case of subletting in the case of a tenancy other than a permanent tenancy. The other condition of the rent -note relied upon in this respect is the right given to the Applicant to deduct Rs. 50 per annum from the rent for repairs and white -washing of the demised property, but I just cannot understand how any such right can convert an ordinary tenancy into a permanent tenancy, because, obviously such a condition ensures only so long as the tenancy subsists and it comes to an end with the coming to an end of the tenancy. The third factor that has been relied upon in this respect is the construction of six new rooms on the demised property by the Applicant and in this respect the learned Counsel has referred to Muhammad Ismail Khan v. Jawdhir Lal, A.I.R. 1935 AIL 492, but in that case the lessee had been given the right to build a house and to let it out on rent to anyone else, and it was recited in the lease deed that the lessee shall have the same right as the lessor enjoyed up till the date of the demise and the last condition the learned Judges interpreted that the lessee was to have the same proprietary rights during the currency of the lease as the lessor had the proprietary rights in the demised property. It is obvious that the facts were entirely different and the case is of no assistance to the argument on the side of the Applicant. But, this argument is otherwise besides the point for, as I have already pointed out, after the date of the rent -note, Exhibit A/2, no change whatsoever has taken place at the instance of anybody, let alone the Applicant, in the demised property. Whatever construction the Applicant made on the demised property that was before the date of that rent -note. The demised property was taken on rent by the Applicant as it was with even the six rooms constructed by him thereon and acknowledging the right of the owner of the property to give it on rent to him but leaving him only the right of removal of the structure at the time when he should be vacating the demised property. So this consideration is even otherwise not available on the facts of the present case. The last consideration which has been urged in this respect is that it is stated in the rent -note that the Applicant was to have the right to remove the structure of the six rooms built by him when he should be wanting to vacate the demised property. The learned Counsel urges that this gives an unconditional option to the Applicant to vacate the demised property at his own will so that so long as he does not exercise any such option he has tile Sight to have the tenancy of the demised property. In this way he is a permanent tenant of such property. In support of this argument reliance has been placed by the learned Counsel on Apu Budgrvda v. Narhari Annajee, (1879) 3 Bom. 21, Khayali v. Hussain Bakhsh, (1886) 8 All. 198 and Abdulrahim Funumulla v. Sarafalli Mohamadalli, A.I.R. 1929 Bom. 66, but in all those cases the question was only whether the lease deed required registration or not under Section IT of the Registration Act on the ground that it was a tenancy existing for a term of one year, the argument having been based on this that although the tenancy in express terms was for a period of less than one year, it gave an option to the tenant to continue as tenant so long as he continued to pay the annual rent. Even in these cases it was never held that any one of the cases was that of a permanent tenancy. (But the question that arises on the argument of the learned Counsel here did not anise in any of those cases and there is no question of the registration or non -registration of the rent -note, Exhibit A/2, so far as the present case is concerned. Now, not one of these considerations is the least evidence from which it can be inferred that this is a case of permanent tenancy, and not a case of tenancy expiring and determining in the terms of the rent -note, Exhibit A/2. If the Act was not there, immediately upon the expiry of eleven months from the date of the rent -note, Exhibit A/2, the tenancy having determined by that date, the Applicant was liable to eviction from the demised property. It is only because of the provisions of the Act that after the date of the determination of the contractual tenancy under the rent -note, Exhibit A/2, that the Applicant has been able to retain possession of the demised property. He has thus been a statutory tenant of the demised property from the date of the determination of the contractual tenancy after the expiry of eleven months of the date of the rent -note, Exhibit A/2. The argument on the side of the Applicant that on the date of the rent -note, Exhibit A/2, in the room marked 'A' in the plan, Exhibit A/3, there was already a sub -tenant, Shiv Textile Mills, and if subsequently the Applicant has changed the tenant and inducted Naval Kishore Silk Mills in June, 1964 in that room, that is not subletting without the written consent of the landlord, cannot obviously be sustained in view of the decision of the Supreme Court in Pooran Chand v. Motilal : A.I.R. 1964 S.C. 461, in which their Lordships held that the fact there were sub -tenants in the demised property and new ones were substituted for them could not conceivably be of any help to the tenant, because the new sub -tenants were not holding under the earlier sub -tenants but were inducted by the tenant after the earlier sub -tenancy was terminated. There is then the argument on the side of the Applicant that even after the expiry of eleven months from the date of the rent -note, Exhibit A/2, the Applicant has held the demised property on the same terms and conditions as in that rent -note, but that rent -note expired after eleven months of its date and after that the Applicant has held the property as a statutory tenant not on the terms and conditions as in that rent -note but on the right available to him to remain in possession of the demised property under the provisions of the Act. It has been said by the learned Counsel for the Applicant that because the Applicant's tenancy and conditions of the rent -note, Exhibit A/2, have continued to subsist. But it has been shown above that this argument has no basis and there is no material in this case from which it can be concluded that this is a case of a permanent tenancy. It is a case of a statutory tenancy after the expiry of fixed period of tenancy in the rent -note, Exhibit A/2, and in the case of such a statutory tenancy their Lordships held in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi : A.I.R. 1965 S.C. 414 that even if under the original demise a tenant is entitled to sublet, that right could not subsist after the tenant became a statutory tenant. Actually, in that case their Lordships have explained that the right of a statutory tenant a tenant having protection of a statute is a personal right to remain in possession of the property, but is not a right of tenancy which is transfer of interest in the demised property. Obviously a person whose only right is to possession of the property, that in the term of a statute like the Act is not a person who has interest in property and he is not a person who can exercise a right as that of subletting. In the terms of Section 13(2)(ii)(a) of the Act, there can be no implied right of subletting, for it is specifically provided that there can be subletting except with the written consent of the landlord. The written consent of the landlord allowing the Applicant to induct sub -tenants under the rent -note, Exhibit A/2, came to an end after the expiry of eleven months as fixed in that rent -note, and there has been no means whereby such a right has come to be extended in favour of the Applicant after the expiry of that period. So that the second argument on the side of the Applicant also does not prevail.