Vinod K. Sharma, J.
1. This revision petition has been filed against an order of ejectment passed by the learned Rent Controller and affirmed by the Appellate Authority.
The case set up by the petitioner was that the tenant petitioner had taken the property in dispute on rent from Smt. Sushila Bhalla at a monthly rent of Rs. 250/- and by way of sale-deed dated 19.3.1990, said Sushil Bhalla sold the entire property including the suit property in favour of the petitioner and since then the petitioner is the landlord and respondent is tenant qua the suit property by operation of law.
2. The grounds of ejectment were that the respondent has neither paid nor tendered the arrears of rent since 19.3.1990 till the date of filing of the petition without any sufficient cause or reason, and that room in dispute had become unfit and unsafe for human use and habitation as the portion of the room marked by letters LMNO had fallen down. Even the battons were eaten by while ants and also that the petitioner bonafide required the room in dispute for his personal use and occupation as the accommodation in possession of the petitioner was insufficient.
3. The petitioner-tenant contested the said application and denied that he had taken only the suit property from Smt. Sushila Bhalla at the alleged rate of rent. It was the case of the petitioner that the said portion ABCD is only part of property in possession of the respondent as tenant under Sushila Bhalla at the rate of Rs. 50/- per month for the whole tenanted portion. The tenant further denied that Smt. Sushila Bhalla had sold the entire property in favour of the landlord-respondent as alleged. According to the tenant the portion in occupation of the respondent was sold by her to number of persons who jointly along with the petitioner constitute a body of landlord qua the respondent. According to the petitioner-tenant the agreed rent was paid to the landlord to whom Smt. Sushila Bhalla had sold the property but they were refusing to accept the same and were putting a false claim regarding the rate of rent and extent of tenancy. The case of the claimant was that the landlord in the present petition alone was not entitled to claim the rent from the respondent qua the demised premises in his possession. The tenant further alleged that the landlord-respondent had acted malafide in claiming the rent at exaggerated rate. According to the tenant, the entire premises in his possession were let out to him by Smt. Sushila Bhalla at the rate of Rs. 50/- per month out of which the petitioner had purchased only a portion of the demises premised. The tenant tendered the rent at the rate of Rs. 50/- per month and therefore, the ground for eviction on account of nonpayment of rent was not applicable. It was also denied that any portion of the suit property had become unfit or unsafe for human habitation. For that no portion of room had fallen down as alleged. The ground of bonafide requirement was also denied.
4. On the pleadings of the parties, the following issues were framed:
1. What is the rate of rent? OPP
2. Whether the tender is invalid? OPA
3. Whether the demised premises is unfit and unsafe for human habitation? OPA
4. Whether the applicant requires the demised premises for his bonafide personal necessity? OPA
5. Relief.
5. Learned Rent Controller on issue Nos. 1 and 2 came to the conclusion that the rate of rent was Rs. 250/- per month and rent tendered at the rate of Rs. 50/- per month was invalid, illegal being deficit and accordingly issue Nos. 1 and 2 were decided in favour of the landlord and against the tenant-petitioner. On issue No. 3, on the basis of evidence led, learned Rent Controller came to the conclusion that the demised premises had become unfit and unsafe for human habitation. Even issue No. 4 was decided in favour of the landlord and resultantly the learned Rent Controller allowed the rent petition and ordered ejectment of the petitioner-tenant with a direction to the petitioner to hand over the vacant possession within a period of 2 months from the passing of the order. The petitioner-tenant went in appeal before the Appellate Authority, Gurdaspur against the order of ejectment. The learned Appellate Authority did not accept the application moved by the petitioner-tenant for leading additional evidence to prove the factum of rent being Rs. 50/- as the stand was held to be contrary to the pleadings of the parties. Learned lower Appellate Court also upheld the finding of the learned trial Court with regard to the rate of rent and held the tender to be invalid.
6. Learned Counsel for the petitioner rightly contended that no ejectment is to be maintained on ground of non-payment of rent as the Rent Controller as well as the Appellate Authority failed to assess the rent in terms of Section 13 of the East of Punjab Urban Rent Restriction Act, 1949 (for short 'the Act') and no opportunity was given to the petitioner to pay the assessed rent. Therefore, the contention of the learned Counsel for the petitioner that the case is required to be remanded back to the learned Rent Controller for assessment of the rent so as to enable the petitioner to deposit the said rent along with interest and costs. This order could have been passed in case the petitioner was to succeed on other grounds. However, this ground is not being upset in view of the findings record on issue No. 3 with regard to the building being unfit and unsafe for human habitation. Both the Courts below on appreciation of evidence came to the conclusion that the building had become unfit and unsafe for human habitation. It was specifically noted by the learned Appellate Authority that it was not a case that the entire house had become unfit and unsafe for human habitation. Learned Courts below held that the ejectment application had been filed regarding one room on the first floor and part of this room had fallen down and there was a big hole in the same which clearly showed that the premises in dispute had become unfit and unsafe for human habitation and the remaining portion of the room could also fall at any time. It was also held by the Court that the petitioner-tenant had not led any evidence to prove that the building was safe for human habitation. The exhibited photographs were not disputed and therefore, the finding on this issue was also affirmed by the Appellate Authority. This being pure finding of fact cannot be challenged in revision.
7. The contention of tenant that the ejectment being for partial tenancy could not be sustained, was also rejected by taking note of the fact that Smt. Sushila Bhalla had sold the property by way of three sale-deeds to Jitender Singh, Duni Chand and Hari Chander. The said sale-deeds were exhibited as Ex. R.1 and R.2. Learned lower Appellate Court held that the landlord had sought ejectment regarding the portion which he had purchased from Smt. Sushila Bhalla as it was not open to him to file a petition regarding portion which he had not purchased. Therefore, learned Courts below were pleased to hold that once the landlord-respondent was not owner of the entire building it was not open to him to seek ejectment from the entire building as he could only eject the petitioner-tenant from the part of the building under his tenancy. However, the finding of the learned Rent Controller was reversed on the ground of personal necessity. However, learned Appellate Authority ordered the ejectment of the petitioner on the ground of tender being short and invalid and also on the ground that the demised premises had become unfit and unsafe for the human habitation and accordingly the appeal was rejected.
8. Mr. A.K. Chopra, learned Senior Counsel appearing with Mr. Rajbir Singh, Advocate, for the petitioner mainly challenged the order of eviction on the ground that it was a case of partial eviction and therefore, could not be sustained. He placed reliance upon a judgment of this Court in Panna Lal v. Dev Jit (1976) 78 P.L.R. 23 (S.C.) : 1978 (1) R.C.R. (Rent) 530 and also a judgment of Hon'ble Supreme Court in Hakibunnisa Begum and Ors. v. G. Doraikannu Chettiar and Ors. : AIR2000SC152 .
9. By relying upon the judgment of the Hon'ble Supreme Court, learned Counsel for the petitioner contended that the petitioner was tenant under Sushila Bhalla which consisted of three rooms and therefore, it was not open to the authorities below to split the single tenancy by ordering partial ejectment of the tenant from the premises let out to him. He made reference to paras 2 and 3 of the said judgment which read as under:
2. The only question that arises in this case is as to whether it was open to the High Court to split the single tenancy by ordering partial ejectment of the tenant from the premises let out to him. In S. Sanyal v. Gian Chand : [1968]1SCR536 , it was held that where a contract of tenancy was a single indivisible contract and in the absence of any statutory provisions to that effect, it is not open to the Court to split the tenancy. Law, therefore, is that where there is a single indivisible contract of tenancy, it cannot be split by a Court unless there is statutory provision to that effect. In the present case it is not disputed that the contract of tenancy is single indivisible contract for Door Nos.27 and 28. It is also not disputed that there is no provision in the Tamil Nadu Buildings (Lease and Control) Act empowering the Court to order partial ejectment of a tenant from the premises by splitting the single indivible tenancy. For these reasons it was not open to the High Court to split the tenancy and order the partial ejectment of the tenant from the premises.
3. In view of the aforesaid legal position of law this appeal succeeds and is allowed. The judgment of the High Court to the extent it allowed the revision of the tenant is set aside and the decree of the trial Court is affirmed. There shall be no order as to costs.
10. The petitioner also made reference to judgment of Hon'ble Supreme Court in the case of Nilesh Nandkumar Shah v. Sikandar Aziz Patel : [2002]SUPP1SCR652 to contend that it was not open to the Courts to split up a contract of tenancy for the purposes of passing a partial decree of eviction. He made special reference to para No. 8 of the said judgment which reads as under:
8. It is well settled that it is not permissible for the Court to split up a contract of tenancy in eviction proceedings see T.S. Subramanian (Dr.) v. Andhra Bank Ltd., : AIR1989SC1420 Firm Panjumal Daultram v. Sakhi Gopal : [1977]3SCR767 and S. Sanyal v. Gian Chand : [1968]1SCR536 . A tenancy can be split up by operation of law or by contract between the parties. In cases governed by rent control legislation, if a ground for eviction in respect of part of the tenancy premises is made out, the decree shall be for eviction from the entire tenancy premises unless the law permits a partial decree of eviction being passed. The purpose of rent control legislation is to protect the tenants from unjust evictions at the hands of greedy or unscrupulous landlords. The shortage of accommodation and unequal distribution of national wealth warrants a welfare State stepping in to so regulate the common law rights and obligations between landlords an tenants as to protect the tenants and to that extent curtail the common law rights of the landlords. In case of doubt, rent control laws should be so interpreted as to lean in favour of the tenant, to advance the purpose sought to be achieved by rent control legislation and to see that the beneficial protection extended by the Act is not scuttled down or defeated or rendered nugatory. In the cases like the one with which we are dealing, there may be two angles of looking at the issue. For the landlord it may be argued that part of the tenancy accommodation (i.e. the portion leased for purposes other than residential) does not enjoy protection under the Bombay Act and therefore, that part of the tenancy premises which enjoys such protection (i.e. the portion leased for residential purpose) must go with the unprotected part of the premises, that is to say the tenancy premises as a whole shall not enjoy the protection of the Bombay Act. On the other hand, looking at the issue from the point of view of the tenant, it may be urged that merely because a part of the tenancy premises (i.e. the non-residential part) does not enjoy the protection of the Bombay Act that does not mean that the protection of the Act which is certainly and undoubtedly applicable to a part of the premises (i.e. the residential portion) should be allowed to be defeated. In the rent control legislation the relevant provision which regulates or restricts the right of landlords to seek eviction of tenants invariably opens with a non obstante clause and is given thereby an overriding effect on the statutory or common law right of the landlord to evict a tenant. Even in the absence of the non obstante clause a rent control legislation being a special beneficial provision shall override the provisions of any general legislation in case of conflict. It would, therefore, be reasonable and consistent with the principles of interpretation of statutes to hold that such part of the tenancy premises as is protected by the rent control legislation (here, the residential portion) shall take along with it such other part of the tenancy premises as is not protected, the contract of tenancy being an integral one. A view to the contrary would defeat the provisions of the Rent Control Legislation.
11. In view of law referred to above it was contended by the learned Senior Counsel for the petitioner that once it was proved that the petitioner was tenant under Smt. Sushila in three rooms it was not open to the learned Rent Controller and Appellate Authority to order ejectment of the petitioner from the room on the ground that the property has been sold to three persons. Thus, according to the learned Counsel, it was a case of partial eviction and therefore, cannot be sustained.
12. Mr. Alok Jain, Advocate, appearing for the respondent-landlord by relying upon the judgment of Hon'ble Supreme Court reported as Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. : AIR2005SC2857 contended that the limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of there version.
13. Learned Counsel contended that for the purpose of servance of the reversion and the assignment of the part so served does not need the consent of the tenant. He made special reference on para No. 29 of : AIR2005SC2857 , (Para 5 of the Judgment delivered by Justice R.C. Lahoti, C.J.I. in (2005-3141 P.L.R. 27 at Page 36 - Editor) of the judgment referred to above in support of his contention which is reproduced below for ready reference:
29. The conclusion drawn in Indra Perfumery case (1969) 11 S.C.R. 967 (supra) would have been different if only the attention of the learned Judges would have been invited to Section 109 of the Transfer of Property Act and the doctrines of 'statutory attronment' and of 'merger' with all the ramifications. This was done in Nalakath Sainuddin case : [2002]SUPP1SCR1 . It has been clearly held on a detailed examination of all the relevant statutory provisions and the doctrine of merger:
(i) that merger is founded on the principle that two estates-one larger and one smaller cannot - and need not - coexist, if the smaller estate can in equity, and must in law, sink or merge into the larger estate. One cannot be an owner and sublessee both at the same time. The smaller estate of sub-tenancy shall sink or drown into the lager estate of ownership as the two cannot coexist; (Nalakath Sainuddin case).
(ii) that Section 109 of the T.P. Act does away with the need for consensual attornment. The attornment is brought about by operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract does not visit the assignee of the part of the reversion. The servance of the reversion and the assignment of the part so served do not need the consent of the tenant See: Mohar Singh v. Devi Charan : AIR1988SC1365 .
14. Learned Counsel also placed reliance on a judgment of Hon'ble Supreme Court reported as Sk. Sattar Sk. Mhd. Choudhari v. Sundappa Amabadas Bukate 1996 (6) Supreme Court Cases 373. In this judgment also it was held that it was open to maintain the eviction against the tenant regarding portion of tenancy of which landlord becomes the owner. Para 37 of the said judgment is reproduced as under:
37. In view of the above discussion, it is obvious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessor contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessor from partitioning the tenanted accommodation among themselves. Whether the premises which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bonafide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of the tenants except in specified grounds set out in the relevant statute.
15. I have considered the arguments of the learned Counsel for the parties and find force in the contentions raised by the learned Counsel for landlord-respondent.
16. In the present case, it is not in dispute that the original owner Smt. Sushila Bhalla by way of different sale-deeds had sold the property to 3 different persons and therefore, it was open to the respondent-landlord only to seek ejectment from the portion of the property which he inherited therefore, it is not a case where the landlord has field a petition for partial eviction but he has filed a petition for eviction from the premises of which he is the landlord and owner. It is not the case of the respondent that some part of the ownership of the landlord would continue to be in his possession after the order of ejectment is passed. This is a case where the splitting of tenancy has occurred due to operation of law and interest created in 3 different persons in pursuance to the 3 different sale deeds executed in their favour. Thus, the ground of partial eviction is not available to the petitioner. This contention of the learned Counsel for the petitioner is rejected.
17. Faced with this situation, learned Counsel for the petitioner contended that in the present case the learned Rent Controller as well as the Appellate Authority have misread the evidence as the parties had failed to prove that there was partition. This contention of the petitioners cannot be sustained firstly for the reason that no such plea was raised before the Courts below and secondly the property has come to the landlord-respondent by way of sale-deed and there is no dispute inter se between the purchasers with regard to the portion in their possession.
18. Learned Counsel for the petitioner thereafter contended that keeping in view the fact that the petitioner had come up with the wrong plea of rent to be Rs. 250/- qua the whole premises he should not have been believed on other points. According to the learned Counsel, once the petitioner had purchased only portion of the property it was not open to him to claim rent for the whole premises. This contention needs to be rejected, firstly for the reason that both the Courts below did not find that the tenant was wrong in claiming rent at the rate of Rs. 250/- qua the tenancy premises. The application of the petitioner for additional evidence was rejected, therefore, the finding regarding rate of rent being finding of fact is not open to challenge in the revision petition.
19. Learned Counsel thereafter contended that the order suffers from non-application of mind as the Courts below failed to notice that the petitioner had come up with the wrong plea of rate of rent as the rent of Rs. 250/- was qua the whole premises whereas the petitioner has only purchased portion thereof.
20. Learned senior counsel for the petitioner also contended that there is a contradictory stand taken by the respondent-landlord as he had sought eviction on the ground that the building had become unfit and unsafe for human habitation at the time he has claimed eviction on the ground of personal necessity. This Court does not find any force in this contention too, firstly for the reason that on appreciation of evidence and looking into the photographs which were admitted by the tenant to be correct, both the Courts below have come to the conclusion that the building was unfit and unsafe for human habitation and therefore, no fault can be found with that finding. Furthermore, as learned lower Appellate Court had reversed the finding on the ground of personal necessity and therefore, there remains no contradiction in the findings recorded by the Courts below with regard to the eviction of the petitioner.
21. In view of the above discussion, this Court finds no force in the present revision petition and the same is dismissed with no order as to costs.