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Wednesday, September 10, 2014

CIVIL APPEAL NO. 8410 OF 2014 (Arising out of S.L.P. (C) No.19532 of 2011) Kamaljit Singh …Appellant Vs. Sarabjit Singh …Respondent = 2014 - Sep. Part - http://judis.nic.in/supremecourt/filename=41861

 2014 - Sep. Part - http://judis.nic.in/supremecourt/filename=41861  

                                      REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                      CIVIL APPEAL NO.   8410   OF 2014
                (Arising out of S.L.P. (C) No.19532 of 2011)


Kamaljit Singh                                     …Appellant

Vs.

Sarabjit Singh                                     …Respondent


                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.





2.    This appeal arises out of an order dated 9th July, 2010 passed by  the
High Court of Punjab  and  Haryana  at  Chandigarh  whereby  Civil  Revision
Petition No.580 of 2005 filed by the appellant has been dismissed and  order
dated  5th  November,  2004  passed  by  the  Rent   Controller,   Phagwara,
dismissing a petition under Section 13-B  of  the  East  Punjab  Urban  Land
Restriction Act, 1949 upheld.

3.    The suit premises comprise a shop in a building  bearing  No.XVI/258/1
situate at Banga Road, Phagwara.  It was let out  to  the  respondent-tenant
by the appellant who was born and brought up in India but having spent  over
30 years in U.K. has returned in the year 2000 with the intention to  settle
down and establish a hotel at Phagwara his home town.  An eviction  petition
under Section 13-B of the East Punjab Urban Land Restriction Act,  1949  was
filed by the appellant on the ground that as a Non Resident Indian  in  need
of the shop for his own use, he was entitled to have the same  vacated  from
the respondent-tenant.





4.    The eviction petition was  contested  by  the  respondent  on  several
grounds including the ground that the appellant was not a NRI and  that  the
eviction petition was barred by the provisions of Order 2  Rule  2  CPC.  It
was also contended by the respondent-tenant that although he  was  a  tenant
in occupation of the premises under the  appellant,  the  sale-deeds  relied
upon by the respondent did not relate to the land  underlying  the  shop  in
question.

5.    By an order dated 5th November, 2004, the  Rent  Controller  dismissed
the eviction petition filed by the appellant holding that the appellant  had
failed to prove his ownership over the demised  premises  for  a  period  of
five years before the filing of the eviction petition. The  Rent  Controller
held that the deposition  of  the  witnesses  appearing  on  behalf  of  the
appellant did not satisfactorily prove  that  the  building  comprising  the
shops one of which happened to be the suit shop was constructed on the  land
purchased by the appellant in terms of the two sale-deeds  set  up  by  him.
The Rent Controller  was  of  the  view  that  although  the  sale-deeds  in
question had been proved by the appellant, he had failed  to  co-relate  the
same to the suit shop or other shops over which he  claimed  ownership.  The
Rent Controller, therefore, dismissed the eviction petition  no  matter  the
appellant's case that he was an NRI and had returned home to set up his  own
business was accepted.





6.    Aggrieved by the judgment and order passed  by  the  Rent  Controller,
the appellant filed revision petition No.580 of 2005 before the  High  Court
of Punjab and Haryana at Chandigarh. An application for permission  to  lead
additional evidence filed by the appellant in the said revision petition  to
establish that the sale-deeds proved by the appellant at the  trial,  indeed
related to the land comprising the shop in  dispute  was  dismissed  by  the
High Court by its order dated 9th  July,  2010  and  so  also  the  revision
petition. The High Court concurred with  the view  that  the  appellant  had
failed to prove that he was the owner of the suit shop for  more  than  five
years prior to the  filing  of  the  petition,  a  condition  essential  for
invoking the provisions of Section 13-B of the  Act.  The  High  Court  also
held that the additional evidence sought to be adduced was very much  within
the knowledge of the appellant and could have been adduced by  him  if  only
he was diligent in doing so.  Additional evidence, could not,  observed  the
High Court, be allowed to fill up the lacunae in the appellants’ case.





7.    Section 13-B of the East  Punjab  Urban  Land  Restriction  Act,  1949
reads as under:



“13-B. Right to recover immediate  possession  of  residential  building  or
scheduled and/or non-residential building to accrue to  Non-resident  Indian
– (1) Where an owner is a Non-Resident Indian and returns to India  and  the
residential building or scheduled building and/or non-residential  building,
as the case may be, let out by him or her, is required for his or  her  use,
or for the use of any one ordinarily living with and  dependent  on  him  or
her, he or she, may apply to the  Controller  for  immediate  possession  of
such building or buildings, as the case may be:



      Provided that a right to apply in respect of  such  a  building  under
this section, shall be available only after a period of five years from  the
date of becoming the owner of such a building and shall  be  available  only
once during the life time of such an owner.



(2) Where the owner referred to in sub-section (1), has let  out  more  than
one  residential  building  or  scheduled  building  and/or  non-residential
building, it shall be open to him or her to make an application  under  that
sub-section in respect of only one residential  building  or  one  scheduled
building and/or one non-residential building, each chosen by him or her;



(3)   Where an owner recovers possession of a building under  this  section,
he or she shall not transfer it through sale or any other means  or  let  it
out before the expiry of a period of five years  from  the  date  of  taking
possession of the said building,  failing  which,  the  evicted  tenant  may
apply to the Controller for an order directing that  he  shall  be  restored
the possession of the said building and the Controller shall make  an  order
accordingly.”





8.    A careful reading of the above would show that  the  same  entitles  a
Non-Resident  Indian  who  returns  to  India  to  demand  eviction  of  any
residential or non-residential building, as the case may be, let out by  him
or her, if the same is required by such non-resident Indian for his  or  her
use or for the use of any one ordinarily living  and  dependant  on  him  or
her. In terms of the proviso, however, the right to  seek  eviction  of  the
tenant is available only after a period of five years from the date of  such
Non-Resident Indian becoming owner of  any  such  building.  It  is  further
subject to the condition that any such right shall be available  to  a  Non-
Resident Indian owner of the premises only once during his life time.





9.    In terms of sub-section (2)  the  Non-Resident  Indian  owner  of  the
demised  premises  is  entitled  to  apply  for  eviction  from   only   one
residential or  one  scheduled  building  or  one  non-residential  building
chosen by him or her. Sub-section (3) postulates that if the owner  recovers
possession of the building under Section 13-B but transfers it through  sale
or any other means or lets the same out before the expiry  of  a  period  of
five years from the date of taking possession  of  the  said  building,  the
evicted tenant may apply to the Controller for an order  directing  that  he
shall be restored the possession of the said  building  and  the  Controller
shall make an order accordingly. There is,  therefore,  no  gainsaying  that
Section 13-B is a code by itself for the special  category  of  cases  where
the landlord happens to be a non-resident Indian who returns  to  India  and
needs the demised premises for his or her own use or for the use  of  anyone
ordinarily living with and dependant on him or her. The only  limitation  on
the exercise of the right vested under Section 13-B (supra) is that the  NRI
owner must apply for eviction of the tenant only  after  a  period  of  five
years from the date he becomes the owner of such a  building  and  that  any
such right shall be exercisable by him only once during his  life  time  and
in respect of one of the several buildings that he may be owning. The  short
question that arises in the above backdrop  is  whether  the  appellant  had
satisfied the above conditions in the case at hand.





10.   In support of his claim of  ownership  over  the  suit  premises,  the
appellant places reliance upon two sale-deeds one  dated  10th  April,  1985
and  the  other  dated  19th  April,  1985.  These  sale-deeds   have   been
satisfactorily proved and accepted at the trial before the Rent  Controller.
The findings recorded by the Rent Controller to that effect  are  clear  and
specific.  What is according to the Rent Controller and the High Court,  not
established is that the sale-deeds relied upon by the  appellant  relate  to
the land underlying the shops. That view is not, in our opinion, sound.  The
reasons are not far to seek.  The appellant has, in para 1  of  the  amended
eviction  petition,  made  a  specific  averment  to  the  effect  that  the
appellant is the owner of the  building  bearing  No.XVI/258/1,  situate  at
Banga Road, Phagwara, comprising 15 shops and open courtyard,  as  described
in the plan attached with the eviction petition. In reply,  the  respondent-
tenant has denied the ownership of the appellant over the shop  in  dispute.
It is also denied that there are 15 shops in the  building  in  dispute.  It
is, however, admitted by the respondent that 6  out  of  the  several  shops
that comprise the building, are in the possession of the  appellant-landlord
while the remaining are in possession  of  the  tenants  each  one  of  them
having a separate provision for ingress and egress.  More  importantly,  the
appellant has in para 2 asserted that the respondent is  a  tenant  in  shop
no.4 under the appellant since the same was demised in  1989  on  a  monthly
rent of Rs.400/-. The respondent in reply to the said averment  admits  that
he is in occupation of the shop in dispute but denies  that  his  possession
relates back to the year 1989. The  respondent’s  case  is  that  he  is  in
possession of the suit shop since the year 1992 only.  Para 2 of  the  reply
to the eviction petition reads:



“2. That para no.2 of the application is correct only  to  the  extent  that
the respondent is in possession of the shop in dispute.   The  rest  of  the
para is wrong and incorrect.  The respondent is in possession  of  the  shop
in dispute since 1992 not from 1989, the answering respondents  is  not  the
subletee of the shop in dispute.  The respondent took the  shop  in  dispute
on rent and since the day of creation of tenancy  the  respondent  works  in
the shop in dispute.”



11.   It is evident from the above that  the  respondent  does  not  dispute
either the jural relationship of landlord and tenant between the parties  or
the rate of rent settled between them. All that the respondent has  asserted
is that he has been in possession of the shop since the year  1992  and  not
since 1989 as asserted by the appellant. It is also  not  the  case  of  the
respondent that he is the owner of the suit shop or that he  had  taken  the
same on rent from anyone other than the appellant. Such being the  position,
the question is  whether  the  respondent  can  dispute  the  title  of  the
appellant over the shop assuming that  he  was  let  in  possession  by  the
appellant in the year 1992 as asserted by him and not in the year 1989.  Our
answer is in the negative. We say so  because  once  the  respondent  admits
that he has been let in possession as a tenant by the appellant in the  year
1992 i.e. more than 10 years before the filing  of  the  eviction  Petition,
the requirement of appellant being owner of the property for more than  five
years within the meaning of Section 13-B (supra) would stand satisfied.  The
respondent would then be estopped from denying the title  of  the  appellant
during the  continuance  of  the  benefit  that  he  is  drawing  under  the
transaction, between him and the appellant.  It is trite that  the  doctrine
of estoppel is steeped in the principles  of  equity  and  good  conscience.
Equity will not allow a person  to  say  one  thing  at  one  time  and  the
opposite of it another time.  It would estop him from denying  his  previous
assertion, act, conduct or representation to say something contrary to  what
was implied in the transaction under which he obtained the benefit of  being
let in possession of the property to be enjoyed by him as a tenant.

12.   Lord Edward Coke, Chief Justice of the Kings Bench  and  17th  Century
English Jurist explains estoppel thus:

“Cometh of the French Word ‘estoupe’, from where the English  word  stopped;
and it is called an estoppels or conclusion, because  a  man’s  own  act  or
acceptance stoppeth or closet up his mouth to allege or  plead  the  truth.”
[Co. Litt. 352a]



13.   Law Lexicon  (Second  Edition,  Page  656)  defines  estoppel  in  the
following words:

“An Estoppel is an admission, or  something  which  the  law  treats  as  an
equivalent to an admission, of so high and conclusive a nature that any  one
who is affected by it is not permitted to contradict it.” [11th Edn  p.  744
in the note to the Dutchess of Kingston’s case]

“An admission or determination under circumstances of  such  solemnity  that
the law will not allow the fact so admitted to be questioned by the  parties
or their privies.”

 “The preclusion of a person from asserting  a  fact,  by  previous  conduct
inconsistent therewith, on his own part, or on the part of those under  whom
he claims.”



14.   Black’s Law Dictionary (9th Edn., page 629) describes Estoppel as :

“A bar that prevents one from asserting a claim or  right  that  contradicts
what one has said or done before or what has  been  legally  established  as
true.”





15.   Section 116 of the Evidence Act deals with  estoppel  against  tenants
and of licensees or persons in possession.  Estoppel  under  this  provision
falls in the category of estoppel by contract and  is  relatively  a  recent
development.  The rule embodied in Section 116 simply  prevents  the  tenant
in occupation of the premises from denying the title  of  the  landlord  who
let him into possession, just as it applies to a mortgagor or  a  mortgagee,
vendor or a vendee, bailer or a bailee  and  licensor  or  a  licensee.  The
rationale underlying the doctrine of estoppel against  the  tenant’s  denial
of title of his landlord was  stated  by  Jessel.  M.R.  in  Re:  Stringer’s
Estate, LR Ch 9 as under:





“Where a man having no title obtains possession of land under a demise by  a
man in possession who assumes to give him a title as tenant, he cannot  deny
his landlord’s title. This is  perfectly  intelligible  doctrine.   He  took
possession under a contract to pay rent so long as he held possession  under
the landlord, and to give it up at the end of the term to the landlord,  and
having taken it in that way he is not allowed to  say  that  the  man  whose
title he admits and under whose title he took possession has  not  a  title.
That  is  a  well-established  doctrine.  That  is  estoppel  by  contract.”






16.   There is considerable authority for the proposition both in  India  as
well as in U.K. that a tenant in possession of the property cannot deny  the
title of the landlord.  But if he wishes to do so he  must  first  surrender
the possession of the property back to him.  He cannot, while  enjoying  the
benefit conferred upon him by the benefactor,  question  latter’s  title  to
the property. Section 116 clearly lends itself to that  interpretation  when
it says:





“116. Estoppel of tenant;  and  of  licensee  of  person  in  possession.—No
tenant of immovable  property,  or  person  claiming  through  such  tenant,
shall, during the continuance of the tenancy, be permitted to deny that  the
landlord of such tenant had, at the beginning of the  tenancy,  a  title  to
such immovable property; and no person who came upon any immovable  property
by the licence of the person in possession thereof, shall  be  permitted  to
deny that such person had a title to such possession at the time  when  such
licence was given.”



17.   A three-Judge of this Court in Sri Ram Pasricha v. Jagannath and  Ors.
(1976) 4 SCC 184 reiterated the principle  that  a  tenant  in  a  suit  for
possession was estopped from questioning the title  of  the  landlord  under
Section 116 of the Evidence Act.  The title of the landlord,  declared  this
Court, even otherwise irrelevant in a suit for eviction of the  tenant.  The
only exception to the rule of estoppel as stated in Section 116 (supra)  may
be where the tenant is validly attorned to the  paramount  title  holder  of
the  property  or  where  that  the  plaintiff-landlord  had,   during   the
intervening period, lost his title to the property.  We  are  not,  however,
dealing with a case where the respondent-tenant claims that the property  is
vested in anyone else who could be described as the paramount  title  holder
or there was any extinction of the title  of  the  appellant  on  any  count
whatsoever since the induction of  the  respondent  as  a  tenant  into  the
premises.  We  need  not,  therefore,  be  detained  by  any  one  of  those
considerations.  What is important is that so long as a  jural  relationship
exists between the respondent-tenant and the appellant and  so  long  as  he
has not surrendered the possession of the premises  in  his  occupation,  he
cannot question the title of the appellant to the property.  The  inevitable
inference flowing from the above proposition would be  that  (viz-a-viz  the
respondent) the appellant was and continues to be the owner of the  premises
in question since the year 1992  when  the  respondent  was  inducted  as  a
tenant. Reckoned from the  year  1992  the  appellant  has  established  his
ownership of the premises for a period of five years before  the  filing  of
the eviction petition thereby entitling him  to  invoke  the  provisions  of
Section 13-B of the East Punjab Urban Land Restriction Act, 1949.



18.   We must before  parting  remind  ourselves  that  Section  13-B  is  a
beneficial provision intended to provide a speedy remedy to NRIs who  return
to their native places and need property let  out  by  them  for  their  own
requirement  or  the  requirement  of  those  who  are   living   with   and
economically dependent upon them.   Their  position  cannot,  therefore,  be
worse off than what it  would  have  been  if  they  were  not  Non-Resident
Indians. If ordinarily a landlord cannot be asked to prove his title  before
getting his tenant evicted on any one of the  grounds  stipulated  for  such
eviction, we see no reason why he should be asked to do so only  because  he
happens to be a Non-Resident Indian. The general principles of Evidence  Act
including the doctrine of estoppel enshrined in Section 116  are  applicable
even to  the  tenants  occupying  properties  of  the  Non-Resident  Indians
referred to in the Act.





19.   The upshot of the above discussion is that the Courts  below  fell  in
manifest error in holding that the appellant-landlord was obliged  to  prove
his title  to  the  property,  no  matter  the  tenant  clearly  admits  the
existence of jural relationship of landlord and tenant between him  and  the
appellant.  We have, in the circumstances no  hesitation  in  reversing  the
view taken by the Courts below and in decreeing the eviction petition.





20.   We accordingly allow this appeal, set aside  the  judgment  and  order
passed by the Courts below and direct eviction of the  respondent  from  the
suit premises. Since the respondent has  been  in  possession  of  the  suit
property for a considerable length of time, we are  inclined  to  grant  him
reasonable time to do so. We accordingly direct that  the  respondent  shall
have time till 31st March, 2015 to  vacate  the  premises  in  question  and
handover the peaceful possession of the same to  the  appellant  subject  to
the following conditions:





The respondent files an undertaking in this  Court  on  usual  terms  within
four weeks.





The respondent deposits arrears of rent, if any, with  the  Rent  Controller
within six weeks from today.





The respondent pays/deposits with Rent Controller compensation for  use  and
occupation of the premises @Rs.2000/- per month w.e.f. 1st  September,  2014
onwards till the date of vacation.

In the event of the failure of the respondent to comply with any one of  the
above conditions, the order of eviction shall become executable, forthwith.





                                                      ……………………………..…….…..…J.
                                                               (T.S. THAKUR)







                                                       …………………………..……………..J.
                                                               (C. NAGAPPAN)
New Delhi,
September 2, 2014

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