Section 13-B of the East Punjab Urban Land Restriction Act, 1949 - Right to recover possession of rented shop - Tenant was estopped from denying the title - Trial court & High court wrongly come to the conclusion that the disputed shop is not constructed by the plaintiff in his site - even though the defendant admitted that he is a tenant of that shop - Apex court held that 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. 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.=
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.
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.
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.
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.
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.
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.
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.
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.
2014 - Sep. Month -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
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. 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.=
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.
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.
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.”
The only limitation onthe 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.
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.”
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.
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.
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.
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.
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.
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.
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.
2014 - Sep. Month -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
