NRI rent disputes

Through our proactive approach, we advise clients on how to avoid or resolve disputes before they have arisen. With our advice, NRI are able to manage disputes, avoid costly and protracted legal proceedings in India. We encourage their communication and discussions in detail so that our clients are able to identify potential future legalities and we are able to provide solutions to them. We assist clients in securing their property and their rent through solid lease or rent deeds which are drafted in such a way that they are pro-landlord and anti-tenant. Therefore whenever a dispute arises, courts surely decide in favour of our clients because of the lease or rent deed drafted by our expert landlord tenant dispute resolution team.

Though we try to keep our clients away from litigation, there are always some cases in which litigation is unavoidable. We assist our NRI clients outside India in rent dispute of residential or commercial property situated in India. We deal with cases of breach of rent agreement, termination of rent agreement, maintenance of property, succession of tenant’s, recovery of rent from tenant’s, cases of personal necessity of landlords and section 13B of East Punjab Urban Rent Restriction Act which empowers NRI to get vacant possession of the property with ease.

Our landlord tenant dispute resolution team represents NRI landlords at all stages of litigation, that is from trial court to High Court and then there’s Supreme Court of India. It is to be noted that nowadays, the judiciary has become pro-landlord because it has witnessed the problems faced by landlords in getting their own property evicted. We have also seen that tenant’s who are in possession of an array properties for three or four decades we are paltry sum of Rs. 500 to 1000 to the NRI landlords abroad thereby causing immense financial loss to the landlords. In such cases we procure exemplary relief in favour of landlords through the order of eviction, increase of rent and payment of mesne profit.

Important judgments on tenancy and co-sharers are:-

Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Ambadas Bukate, (SC) 1997 AIR (SC) 998

  • 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.
  • 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.
  • There is no right in the tenant to prevent the joint owners or co-lessors 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 bona fide and was a sham transaction of overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute.

JUDGMENT

S. Saghir Ahmad, J. – The landlord is in appeal before us against the Judgment and Order dated 17.1.1992 passed by the Bombay High Court (Aurangabad Bench) by which the Judgment and Order dated 29.3.84 passed by the Rent Controller and that of the District Judge, Latur passed on 12.2.87, affirming that Judgment, were set aside and the suit of the appellant for eviction of the respondent from the shop in Municipal building No. 2-10 (Old) and 69 (New), Ward No. 22, Bhusar Lane, Latur, was dismissed.

2. Proceedings for eviction were initiated by the appellant on the allegation that the shop measuring 23’x19′ was originally owned by his father Shaikh Mohd. Chaudhari who died on 12th of March, 1956 leaving behind the appellant and his elder brother, Shaikh Jaffar, as also two other brothers, as his heirs who inherited his properties including the aforesaid shop. Shaikh Jaffar being the eldest was managing the property, particularly as the appellant was minor in 1964 when the shop was let out to the respondent who paid rent to Shaikh Jaffar and continued to pay it till 1974. In the meantime, there was a partition among the brothers and a portion of the shop measuring 23’x 12′ fell in the share of the appellant who informed the respondent of the above and required him to pay rent to him. A similar information in writing was also given to the respondent by Shaikh Jaffar but the respondent did not pay rent to the appellant and consequently, his tenancy was terminated by notice dated 28.7.76. This was followed by a petition under Section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 for the eviction of the respondent on the ground of wilful default in payment of rent as also for the personal need of the appellant who wanted to run his cutlery business in the said shop.

3. This petition was filed before the Rent Controller before whom the respondent, in his reply, raised the plea that the shop having been let out to him on behalf of several brothers, he could not be legally evicted at the instance of one of them as tenancy was indivisible. He pleaded that the petition was not maintainable. He also pleaded that the so-called partition amongst the brothers was mala fide and, in any case, notice for attornment was not given to him. He also pleaded that the shop was not bona fide required by the appellant and that, in any case, he was not a defaulter as he was all along tendering the rent to the landlord but the same was refused by him.

4. The petition was allowed by the Rent Controller by his Judgment and Order dated 29.3.84 which was upheld in appeal by the District Judge by his Judgment and Order dated 12.2.87.

5. The High Court before whom the matter was thereafter taken, reversed the Judgment of the Rent Controller and that of the District Judge principally on the ground that the question of maintainability of the petition was not considered and the Rent Controller as also the District Judge had not adverted their mind to the question that the tenancy of the shop in question, held by the respondent, was indivisible. The partition, if any, amongst the brothers would not affect the lease which would still remain indivisible and consequently, eviction proceedings at the instance of only one of the co- landlords would not be maintainable.

6. During the pendency of the appeal in this Court, the respondent purchased the remaining portion of the shop namely, the portion measuring 23’x 6′ which had fallen in the share of the appellant’s brother, Shaikh Ahmad Chaudhari, from Smt. Zubedabi, his wife, to whom he had gifted the property and thus he claimed to have become the owner of that portion of the shop.

7. We have heard the learned counsel for the parties and have gone through the record.

8. The emphasis of the High Court was, throughout the judgment, on the indivisibility of contract of tenancy. The High Court treaded on a path which led it to a blind alley and did not take diversion which would have opened up the road to arrive at a correct decision.

9. The basic principle of the Transfer of Property Act is that where a premises is let out by several co-owners or joint owners or co-lessors, any one of them cannot sue the tenant either for his share of rent or for partial eviction on the ground that he being the co-owner had a right not only to collect his share of rent but also to evict the tenant from his portion of the premises. The unity of estate is, undoubtedly, indivisible but the individuality is not perpetual. In order to remove the obesession with which the High Court suffered, it is necessary to look to various provisions of the Transfer of Property Act (for short, the Act).

10. Section 36 of the Act dealing with Apportionment provides as under :

”38. Apportionment of periodical payments on determination of interest of person entitled. – In the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.”
11. This Section has to be read in the light of the provisions contained in Section 8, which provide, inter alia, that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor had in the property, including the easement annexed thereto as also the rents and profits accruing/due from that property after the transfer. The income or the rent in such a case has to be divided between the transferor and the transferee. If the income accrues from day to day, there would be no difficulty as it is obvious that with effect from the date of transfer, the transferee would get the right to collect income or rent and with effect from that date, the right of the transferor would come to an end. Where, however, the income did not accrue De Die in Diem, it has been provided that all periodical payments, like, yearly or monthly, in the nature of rent etc. shall be deemed to accrue from day to day and shall be apportioned between the transferor and the transferee on that basis. This Section, therefore, enacts the rule relating to Apporionment by Time, while Section 37, as we shall presently see, refers to Apportionment by Estate.

12. Section 37 of the Transfer of Property Act, (without the illustrations appended thereto) provides as under :

”37. Apportionment of benefit of obligation on severance. – When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed or if the severance would substantially increase the burden of the obligation, the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose;

Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this section, unless and until he has had reasonable notice of the severance.

Nothing in this section applies to leases for agricultural purposes unless and until the [State Government] by notification in the Official Gazette so directs.”
13. This Section contemplates a transfer as a result of which the property is divided into several shares and each share comes to be vested separately to each owner. In such a situation, each of the several owners will be entitled to his share of the rent or benefit of any other obligation relating to the property as a whole. But before the tenant can be required to split up the rent and pay separately to each owner, he has to be informed of the transfer by a notice which, by itself, will be sufficient to convert the single obligation into several obligations and he will be liable to pay rent to each co-sharer separately. (See: Raja Simhadri v. Pattipati Ramayya, ILR 1908(29) Mad. 29).

14. It is open to the owners to apportion the rent inter se, but if no such apportionment is made, the obligation of the tenant remains single and in that situation, the lessor will not be allowed to split the tenancy by recovering the rent of a part only; nor can a purchaser of a part of the property insist on payment of his part of the rent to him (See: Satyesh Chandra Sarkar v. Haji Jillar Rahman, 1918(27) CLJ 438 : 45 Indian Cases 721, Keshava Prasad Singh Bahadur of Damraon v. Mathura Kuar and others, AIR 1922 Patna 608 : 69 Indian Cases 704).

15. A reference to Sections 36 and 37 has been made only to indicate that even if the estate is in possession of a tenant, who is under an obligation to pay rent, there can still be a severance of such estate.

16. The properties which are covered by leases are, however, dealt with separately by the Act in which the relevant provision is contained in Section 109 which is reproduced below :

”109. Rights of lessor’s transferee. – If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him;

Provided that the transferee is not entitled to arrears of rent due before the transfer and that if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.”

17. This Section is based on the maxim, Qui in jus dominiumve alterius succedit jure ejus uti debit, that is to say, rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property.

18. A bare reading of the first part of the Section indicates that if the property is either transferred as a whole or any part thereof alone is transferred, the transferee comes to possess all the rights of the lessor.

19. The Proviso appended to first part of the Section contemplates that before a tenant can be made liable to pay rent to the transferee, he must have knowledge of the transfer either through the lessor or by his transferee by a notice. Requirement of knowledge of transfer in this Section as also in Sections 37 and 50 is based on the general principle of law set out by Willes, J. in De Nicols v. Saunders, 1870(22) LT 661 : 18 WR (Eng.) 1106, that if a person fulfils his obligations without notice of the rights of a third party, his obligation is treated as discharged. Requirement of knowledge and the communication of notice regarding transfer of the part or the whole of the property in occupation of a tenant is a condition precedent for creating a liability in the tenant to pay rent to the transferee or the assignee of the demised premises, but it does not have the effect of postponing the assignment or transfer of property till the receipt of the notice. The title passes to the assignee immediately on the execution of the Deed of Transfer or Assignment.

20. We may, before proceeding further, notice the arguments raised on behalf of the respondent that the appellant cannot take advantage of Section 109 of the Act and initiate proceedings for his eviction as his title to a portion of the shop in question is based upon ”partition” and since ”partition” is not a transfer within the meaning of the Act, Section 109 would be inapplicable. The suit, it is contended, was rightly dismissed by the High Court.

21. This argument is obviously based on Section 5 of the Act which provides as under :

”5. ”Transfer of Property” Defined. – In the following sections ”transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself [or to himself] and one or more other living persons; and ‘to transfer property” is to perform such act.

[In this section ”living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]”
22. This Section contemplates transfer of property by a person who has a title in the said property to another person who has no title. A family arrangement, on the contrary, is transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family disputes and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a ”conveyance of property” from a person who has title to it to a person who has no title.

23. This Court in Kale and others v. Deputy Director of Consolidation and others, AIR 1976 Supreme Court 807 and Ram Charan Das v. Girja Nandini Devi and others, AIR 1966 Supreme Court 323 : 1965(3) SCR 841, also took the same view and held that a ”Family Arrangement” proceeds on the assumption that the parties, in whose favour the arrangement was made and who, under that arrangement, come to have definite and positive share in the property, is not a transfer but is only a recognition of the title already existing in them. It was also pointed out by this Court in Tek Bahadur Bhujil v. Debi Singh Bhujil and others, AIR 1966 Supreme Court 292, as also in an earlier decision in Ram Charan Das v. Girja Nandini Devi and others (supra), that it was not necessary to show that every person taking a benefit under a Family Arrangement had a share in the property; it was enough if they had a possible claim or even if they are related, a semblance of a claim, Gajendragadkar, CJ, in V.N. Sarin v. Ajit Kumar Poplai, 1966(1) SCR 349 , ”the true effect of partition was that each co-parcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family.”

24. In the above case, the Court was concerned with the interpretation of Section 14(6) of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958) which provided, inter alia, that where a landlord has acquired any premises by transfer (emphasis supplied), no application for recovery of possession shall lie unless a period of five years had elapsed from the date of acquisition. The property in that case came to be possessed by the landlord on a partition of the co-parcenery property. It was observed by this Court as under :

”Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to that said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the co-parceners have subsisting title to the totality to the property of the family jointly, that joint title is by partiton transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr. Purshottam that partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners.”
25. In coming to the above conclusion, this Court relied upon the Privy Council decision in Girja Bai v. Sadashiv Dhundiraj and others, 43 Indian Appeals 151 : AIR 1916 PC 104, in which it was observed as under :

”Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers.”
26. In another case, namely, Commissioner of Income Tax, Gujarat v. Keshavilal Lallubhai Patel, 1965(55) ITR 637 , it was held that an oral partition between members of a joint Hindu family cannot be treated to be partition within the meaning of Section 16(3)(a)(iii) and (iv) of the Income Tax Act, 1922.

27. Partition, specially among the coparceners, would be a ”transfer” for purposes of Registration Act or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 Supreme Court 706 and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would fall within the mischief of Section 17(1)(b) of the Registration Act under which the document is compulsorily registrable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that Section. This decision has since been followed in Siromani and another v. Hemkumar and others, AIR 1968 Supreme Court 1299 and Roshan Singh and others v. Zile Singh and others, AIR 1988 Supreme Court 881.

28. The Privy Council in Appovier v. Rama Subba Aiyan, 1866(11) Moor’s Indian Appeals 75, propounded the theory of intention as the true test of partition of property and observed that intention being the real test, it follows that an agreement between the members of a joint family to hold and enjoy the property in defined shares as separate owners operates as a partition, although there may have been no actual division of the property by metes and bounds. The Judicial Committee further observed :

”In the estate each member has henceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided.”
In such a case the interest of each member stands divided though the property remains physically undivided.

29. The effect of the above judgment is that though the property remains physically undivided, the interest of each member stands divided, which would, therefore, descend and may be dealt with a separate property by the separating member or his own heirs.

30. We have our own doubts on this question. If a partition of the joint family property takes place by act of parties, it would not, as seen above, be treated as ”Transfer” within the meaning of Section 5 of the Act. But if a suit for partition is filed and the partition is brought about through a decree of the Court, it would amount to a ”Transfer” vide Section 2(d), which specifically excludes transfers by operation of law or under a decree or order of a Court. Section 5, which, in a way, defines transfer, is, therefore, over-ridden by Section 2(d) of the Act. This is rather anomalous and the anomaly will have to be cured one day, particularly as ”transfer” has been interpreted differently by this Court in the contest of different statutory provisions.

31. Leaving this question here, as it is, we may observe that although partition by agreement of parties may not amount to transfer, the principles underlying Section 5 have been applied to transfers of either the whole or a part of the demised premises under Section 109 of the Act.

32. The Calcutta High Court in Smt. Durgarani Devi v. Mohiuddin and others, 1950(86) CLJ 198, held that although partition was not a transfer, the owners, on severance of different portions, get ”all the rights” contemplated by Section 109 of the Act, including the right of the owners of the severed portion to recover possession from the tenant by terminating his tenancy.

33. A Full Bench of the Madhya Pradesh High Court in Sardarilal v. Narayanlal, 1981(1) RCR(Rent) 423 (M.P.) : AIR 1980 Madhya Pradesh 8, held that assignment of a part of holding effects a severance of the holding and entitles the transferee to proceed against the tenant. Similar view was expressed by the same High Court in an earlier decision in Pyarelalsa v. Garanchandsa and others, AIR 1965 Madhya Pradesh 1 and by the Patna High Court in Badri Prasad v. Shyam Lal Jaiwal and others, AIR 1963 Patna 85. The High Court of Jammu & Kashmir in Skattar Singh v. Rawela, AIR 1952 Jammu and Kashmir 18 took the view that ”partition” was a transfer to which Section 109 would be applicable.

34. The Allahabad High Court in Ram Chandra Singh and others v. Ram Saran and others, 1978(1) RCR(Rent) 368 (Allahabad) : AIR 1978 Allahabad 173 laid down that it was open to one of the co- owners, after partition, to sue for ejectment of the tenant from his share of the leased property.

35. A Full Bench of the Madras High Court in Puthiapurayil Kannyan Baduvan and another v. Chennyanteakath Puthiapurayil Alikutti and others, AIR 1920 Madras 838 is also of the same view.

36. The Madras and Allahabad decisions (cited above) were approved by this Court in Mohar Singh v. Devi Charan, 1988(1) RCR 654 (SC) : 1988(2) RCJ 471 (SC).

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 lessors 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-lessors 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 bona fide and was a sham transaction of overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute.

38. Learned counsel for the respondent relied upon a decision of this Court in Badri Narayan Jha and others v. Rameshwar Dayal Singh and others, 1951(2) SCR 153 and contended that the severance or assignment of a part of the reversion would not affect the integrity of the lessee. This case is wholly inapplicable to the facts of the present case. In that case, there were several lessees who had divided the tenancy rights among themselves and had thus split up the lease. It was in this connection that it was laid down that an inter se partition of the lessee rights amongst the co-lessees would not affect their liablity qua the lessor for the payment of the whole rent as they continue, in status, as a single tenant. It was further observed that in law an inter-se partition of the lease-hold interest would not affect the integrity of the lease.

39. The decision in Badri Narayan Jha’s case was considered by this Court in Mohar Singh v. Devi Charan and others (supra) and was not followed on the ground that it related to partition of the lease-hold rights among the co-lessees.

40. We have already indicated above that during the pendency of the appeal in this Court the respondent has purchased the remaining portion of the shop, which had fallen in the share of the appellant’s brother. This portion measures 23′ x 6’. It has been purchased from Smt. Zubedabi, wife of appellants’s brother, in whose share the said portion had fallen on partition, and who had gifted that portion to his wife. The copy of the sale-deed has been filed in this Court, to which no objection has been taken by the counsel for the respondent. The respondent does not deny the transaction. He having purchased the remaining portion of the shop, became the owner thereof and his interest as a tenant merged in his right as an owner of that portion. He, therefore, remained a tenant only in respect of the disputed portion and consequently the suit filed by the appellant in respect of that portion was clearly maintainable.

41. In view of the above, the appeal is allowed. The judgment and order dated 17.1.1992 passed by the High Court is set aside and the suit of the appellant for the eviction of the respondent is decreed with costs throughout.

Appeal allowed.

M/s Karta Ram Rameshwar Dass v. Ram Bilas, (SC) 2006 AIR (SC) 362

  • In a suit for partition filed by one co-sharer against another if a tenant is made party, he can object to the claim for partition if it is shown that the same was not bona fide and made with an oblique motive to overcome the rigors of rent control laws which protected eviction of tenant except on grounds set out in the relevant statute.
  • After a partition is effected or a decree for partition is passed, it would be open to the co-sharers to evict a tenant from that portion of tenanted premises which had fallen in their respective shares by filing separate proceedings for eviction under rent control laws on the grounds enumerated thereunder.
  • In the present case, the tenant failed to prove that the claim for partition was not bona fide. Therefore, final decree in the suit for partition has been rightly confirmed by the High Court but it was not justified in reversing decree of the trial court, which directed that the possession of the tenant could not be disturbed unless and until proceeding is initiated for its eviction under the Act, and in ordering for recovery of possession from the tenant of that portion of the tenanted premises which had fallen to the share of the plaintiff.
  • In our view, the trial court was quite justified in directing that possession of the tenant would not be disturbed and it can be evicted only in accordance with law by taking steps for eviction under the provisions of rent control legislation upon the grounds enumerated thereunder.

SUPREME COURT OF INDIA

JUDGMENT

B.N. Agrawal, J. – Leave granted.

2. These appeals by defendant No. 2 arise out of judgment rendered by Punjab & Haryana High Court in second appeals.

3. The short facts are that a shop measuring 90′ in length and 18′ in width situate in Jind Mandi was originally owned by one Ram Gopal and upon his death, his two sons, namely, Jai Narain and Chet Ram inherited the same in equal shares. In the year 1956, Chet Ram – one of the sons of Ram Gopal, who was co-sharer to the extent of half share, let out front portion of the shop to M/s Karta Ram Rameshwar Dass – defendant No. 2 with the consent and authority of the other co-sharer Jai Narain. Subsequently, Chet Ram died and upon his death, his sons and daughters sold their half share in the disputed shop to one Yashpal – defendant No. 1 under registered sale deed dated 20th August, 1975. Thereafter on 26th September, 1975, Jai Narain, another co- sharer filed a suit for partition of his half share in the aforesaid shop in which Yashpal, the purchaser, and the firm M/s Karta Ram Rameshwar Dass were impleaded as defendant Nos. 1 and 2 respectively. The share of the plaintiff in the shop in question was not disputed. In the said suit, a preliminary decree was passed in favour of the plaintiff to the extent of his half share in the shop in question and a Local Commissioner was appointed to effect partition who submitted report to the effect that the shop in dispute should be divided horizontally that is to say in such a way that one party would get the front portion opening in the Mandi and other would get its back portion. The plaintiff filed objections to the report of the Commissioner and according to him the shop should have been partitioned longitudinally by constructing a wall through and through, which partition would be a just one between the parties and partitioning the shop horizontally by giving front portion to one party and back portion to another would be unjust and unequal especially when the front portion of shop, which opens in the Mandi, would be more valuable one whereas back portion less valuable. Defendant No. 2 who was the tenant in the front portion of the shop objected to the prayer made by the plaintiff stating therein that by erecting a wall, his tenanted premises would be divided into two portions which would amount to evicting him from a portion of the tenanted premises without taking recourse to the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as ‘the Act’). Defendant No. 1, who is purchaser from Chet Ram, took the stand that the objections to the local commissioner’s report filed by the plaintiff were fit to be rejected.

4. The trial court allowed the objections filed by the plaintiff to the report of the local commissioner and passed a final decree directing that the shop in question should be partitioned longitudinally by constructing middle wall through and through but the tenant would continue to occupy the shop let out to him unless and until he is evicted therefrom by taking recourse to the provisions of the Act. Against the final decree passed by trial court, two appeals were filed before the lower appellate court; one by heirs and legal representatives of Jai Narain (since dead); and other by the purchaser defendant No. 1. The tenant-firm – defendant No. 2 filed a cross objection in the appeal filed by the legal representatives of Jai Narain. The appellate court upheld the final decree passed by the trial court by dismissing both the appeals as well as the cross-objection. Thereafter, three appeals were filed before the High Court; one by the heirs of Jai Narain; another by defendant No. 1 – transferee from Chet Ram; and the third by tenant-firm (defendant No. 2). The High Court dismissed appeals filed by the transferee as well as the tenant but allowed the same filed by legal representatives of Jai Narain, modified decrees of trial court as well as the lower appellate court and granted decree in favour of the plaintiff for vacant possession directing the tenant to be evicted from that portion of the tenanted premises which had fallen to the share of the plaintiff in the final decree. Hence, these appeals by special leave.

5. Learned counsel appearing on behalf of the appellant in support of the appeals has raised two points. Firstly, it has been submitted that the tenancy was indivisible as such the claim for its partition was unwarranted; and secondly, the tenant-firm could be evicted only by filing an eviction proceeding in accordance with the provisions of the Act upon grounds enumerated thereunder and decree for recovery of vacant possession from it passed by the High Court in the partition suit was not permissible under law. On the other hand, learned counsel appearing on behalf of the respondents submitted that a tenant could not object to the claim for partition by a co- sharer so long the same is bona fide and the High Court was quite justified in passing a decree for recovery of vacant possession against the tenant.

6. In support of their submissions, both the parties have relied upon conflicting decisions of the High Courts but it is not necessary to refer to the same as both the points are concluded by a judgment of this Court in the case of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, 1997(1) RCR(Rent) 98 (SC) : 1997(1) RCR(Civil) 513 (SC) . In that case, a shop measuring 23′ x 19′ belonged to one Shaikh Mohd. Choudhari who died in 1956 leaving behind his two sons, namely, Shaikh Jaffar and Shaikh Sattar. In the year 1964, one of the brothers Shaikh Jaffar let out the premises in question to a tenant Gundapa Amabadas Bukate who continued to pay rent till 1974. In the meantime, there was a partition amongst the two brothers, in which a portion of the shop measuring 23′ x 12=’ fell in the share of Shaikh Sattar whereas the remaining portion in the share of Shaikh Jaffar. Both the brothers intimated the tenant about the partition requesting him to make payment of rent of the premises in question separately in equal proportion to them but no rent was paid. Accordingly by a notice, his tenancy was determined and consequently a petition under Section 15 of the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 was filed by one of the brothers Shaikh Sattar for eviction of the tenant on the ground of default as well as bona fide personal necessity of the plaintiff. The tenant objected on the grounds that the partition was not a bona fide one and petition for eviction by one of the brothers was not maintainable. Both the grounds for eviction were denied by the tenant. The Rent Controller granted eviction on both the grounds which was upheld in appeal. Thereafter matter was taken to the High Court of Bombay by filing a civil revision application which, after reversing both the orders impugned before it, dismissed the eviction petition on the ground that the tenancy was indivisible and partition amongst the brothers would not affect the same and the claim for eviction at the instance of only one of the co-sharers would not be maintainable. Challenging the decision of the High Court, the plaintiff filed an appeal before this Court by special leave. During the pendency of the appeal, the tenant purchased the share of Shaikh Jaffar in the property. It has been laid down by this Court that if all the co-owners “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”. It was further laid down that there was no right in the tenant to prevent the co-owners from partitioning the tenanted accommodation among themselves unless it was shown that the partition was not bona fide and was a sham transaction to overcome the rigors of rent control laws which protected eviction of tenants except on grounds specified in the relevant statute meaning thereby that a tenant could be evicted only by taking recourse to the provisions of rent control laws upon proof of the grounds enumerated thereunder. This Court came to the conclusion that the partition between the co-sharers was bona fide and as the tenant had acquired the share of Shaikh Jaffar as owner thereof, the claim for eviction from the remaining portion which fell to the share of the plaintiff was granted.

7. In view of the foregoing discussion, we hold that in a suit for partition filed by one co-sharer against another if a tenant is made party, he can object to the claim for partition if it is shown that the same was not bona fide and made with an oblique motive to overcome the rigors of rent control laws which protected eviction of tenant except on grounds set out in the relevant statute. After a partition is effected or a decree for partition is passed, it would be open to the co-sharers to evict a tenant from that portion of tenanted premises which had fallen in their respective shares by filing separate proceedings for eviction under rent control laws on the grounds enumerated thereunder. In the present case, the tenant failed to prove that the claim for partition was not bona fide. Therefore, final decree in the suit for partition has been rightly confirmed by the High Court but it was not justified in reversing decree of the trial court, which directed that the possession of the tenant could not be disturbed unless and until proceeding is initiated for its eviction under the Act, and in ordering for recovery of possession from the tenant of that portion of the tenanted premises which had fallen to the share of the plaintiff. In our view, the trial court was quite justified in directing that possession of the tenant would not be disturbed and it can be evicted only in accordance with law by taking steps for eviction under the provisions of rent control legislation upon the grounds enumerated thereunder.

8. In the result, the appeals are allowed in part and that portion of the impugned judgment, rendered by the High Court, whereby a decree for vacant possession of the portion of the property falling to the share of the plaintiff has been passed in his favour is set aside and judgment and decree passed by the trial court are restored in its entirety. In the circumstances of the case, we direct that the parties shall bear their own costs.

Appeals partly allowed.

Important judgments on NRI tenancy are:-

Baldev Singh Bajwa v. Monish Saini, (SC) 2006 AIR (SC) 59

To seek eviction, it is not necessary for NRI landlord to permanently return to India.

SUPREME COURT OF INDIA

JUDGMENT
P.P. Naolekar, J. – Leave granted in all the Special Leave Petitions.

2. In all the above appeals, a common question of law arises for determination and therefore they are heard together and are decided by the common Judgment.

3. All these appeals have been preferred by the tenants against whom a decree for eviction from their tenanted premises were passed by the Controller and confirmed by the Punjab and Haryana High Court. In three appeals, namely, S.L.P. (C) No. 17622/2003 – Mohinder Singh v. Git Singh, SLP (C) No. 19540/2003 – Laxmi Kant v. Surjit Singh Channa and SLP (C) 4566/2004 – Shangara Singh v. Malkiat Singh leave to contest were granted by the Controllers and after trial, decrees for ejectment were passed against the tenants. In other appeals, leave to contest the landlords’ applications for ejectment were rejected at the initial stage by the Controllers.

4. Certain provisions of The East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred to as ‘The Act of 1949’) which have been inserted by Punjab Act No. 9 of 2001 dated 31.5.2001 have been elaborately discussed by the High Court in the matter of Baldev Singh Bajwa v. Monish Saini and therefore we will refer to the facts of that case for consideration and interpretation of the Sections inserted in the Act of 1949 by Act No. 9 of 2001 and shall elaborate and discuss the factual aspects necessary, in regard to the other appeals in the latter part of the Judgment.

5. The facts, in brief, in the matter of SLP (C) 17864/2003 – Baldev Singh v. Monish Saini are :

6. Appellant in this case is a tenant of the disputed shop which was leased out to him vide Rent Note dated 14.3.1985 by Monish Saini, landlord with the consent of other landlords. The landlord was born in Delhi and later migrated to United Kingdom for employment and settled there. He holds a Canadian Passport and is doing service in U.K. The landlord filed an ejectment petition invoking Section 13-B of the Act of 1949 by making averments that the tenant-appellant was bound to surrender immediate possession of the disputed shop to him. He had claimed the status of Non-Resident Indian (hereinafter to be referred to as ‘NRI’) as per definition under Section 2(dd) of the Act. Ejectment was sought on the allegation that he wanted to start business of Transport and Goods Carrier in which he had acquired sufficient experience. On notice of application for eviction, the appellant-tenant filed an affidavit seeking leave to contest, as required under Section 18-A(5) of the Act of 1949. The tenant pointed out that the landlord holds a Canadian Passport and he was living in U.K. and came to India on Tourist Visa and, therefore, has not returned to India permanently. It was also pleaded that respondent did not require the shop as he and his family own various shops around the shop in dispute and had been letting out the same from time to time. The affidavit also mentioned that one very big shop of the respondent-landlord and his family remained vacant and possessed by them. Previously also the ejectment of the premises on other grounds was dismissed. That the respondent could not be regarded as a NRI as there is no likelihood of his return to India for the purpose of doing business. That the ejectment petition by invoking Section 13-B of the Act of 1949 was merely to seek ejectment from the shop in dispute without there being bonafide need. The Controller declined the prayer of the tenant to contest and allowed the petition filed by the respondent under Section 13-B of the Act of 1949 and directed tenant to handover possession of the shop in dispute to the landlord. The Controller held the landlord to be a special category of landlord, i.e., NRI. Controller held that there was no need to ascertain the intention of the landlord regarding his settlement in India as specific penal provision has been incorporated in the Act to counter that. He further held that the availability of other buildings or accommodation could not be a ground to deny a NRI the possession of any building of his choice. The Controller further observed that the tenant in his affidavit had not cared to specify the properties by giving number, location or area of the properties owned by the landlord in the same locality. The Controller also held that dismissal of the previous proceedings for ejectment would not be sufficient to non-suit the landlord.

7. The tenant preferred revision petition to the High Court of Punjab and Haryana. The learned Single Judge vide Judgment and Order dated 29.5.2003 dismissed the revision petition. It was held that the expression ‘NRI’ under Section 2(dd) of the Act of 1949 had to be given its ordinary meaning and a person of Indian origin living abroad, whether settled permanently or temporarily, would be a NRI within the meaning of Section 2(dd) of the Act of 1949. The learned Single Judge also pointed out that the expression ‘returns to India’ used in Section 13-B of the Act of 1949 would not necessarily mean that he must return permanently or he must file a petition after he had returned to India. The learned Single Judge held that in the context of the provisions of the Act of 1949 applicable to NRI landlord, no leave to contest can be granted on the ground that the landlord did not require the suit accommodation. The question of bonafide need not be gone into in these proceedings. To be in the words of the High Court : “Therefore, no leave to contest can be granted in respect of cases which are covered by various penal provisions. Any other approach would render those provisions as a dead letter. For example, the question ‘need’ does not require to be gone into in view of corresponding provisions to the effect that the NRI owner must occupy the building after eviction for a continuous period of three months and must not let out the whole or part of it (except to the evicted tenant) to any one for a period of five years as provided by sub-section (3) of Section 13-B of the Act”. The High Court confirmed the order passed by the Controller, Hoshiarpur.

8. In S.L.P. (Civil) 17622 of 2003 – Mohinder Singh v. Git Singh, the High Court relied upon the decision of the Punjab and Haryana High Court in 2002(2) RCR(Rent) 203 (P&H) : Civil Revision No. 586 of 2001 – Prem Kumar Patel v. Inder Singh Grewal and others in which it was held that :

(i) that the landlord is a Non-resident Indian;

(ii) that the landlord has returned to India; and

(iii) that the landlord should be the owner of the property for the last five years.
Once these three ingredients are proved, a mere prayer of the landlord that the tenanted premises is required for his or her own use, or for the use of any one ordinarily living with the dependent on him or her, entitles him/her to get the immediate possession of the property.

9. Learned senior counsel for the appellant have vehemently urged that the order for eviction of the tenant cannot be passed by the Rent Controller under Section 13-B of the Act of 1949 unless it is found, as a fact, that the landlord requires the suit accommodation for his or her use or for the use of any one ordinarily living and dependent on him or her. The Rent Controlling Authority could not have rejected the application for leave to contest the ejectment proceedings without going into the merits of the case in regard to the requirement of the landlord of the suit accommodation and considering it on the touchstone of bonafide requirement or genuine requirement of the landlord. It is urged that the law does not allow the Rent Controller or the High Court to act mechanically on the application being moved by the landlord and grant him relief merely because an averment is made in the petition of his requirement of the suit accommodation. On the other hand, it is urged by the learned counsel for the respondent-landlord that the very purpose of providing expeditious relief to the NRI landlord or ejectment of tenant from their suit accommodation with the conditions imposed by the provisions of the Act itself, would be defeated if the question of requirement of the landlord would be called upon to be considered as bonafide requirement, particularly so when the expression “bonafide requirement” does not occur in Section 13-B of the Act. It is contended that the absence of these words in Section 13-B and the other restrictions imposed on the NRI landlord is obviously to obviate the difficulty of the landlord by enabling him to get immediate possession of his premises which is in occupation of the tenant.

10. East Punjab Urban Rent Restricting (Amendment) Ordinance, 2000 (Ordinance No. 10 of 2000) was promulgated and published in the Punjab Government Gazette (Extraordinary), vide Notification No. 33/Leg/2000 dated 27th December 2000. Later on the Ordinance was made Act No. 9 of 2001. The relevant provisions with which we are concerned in the present appeals, on the submissions made by the learned counsel appearing for respective parties are Section 13-B and 19(2-B) which are reproduced below along with the Statement of Object and Reasons of introductions of new provisions :-

“The State Government had been receiving representations from various N.R.I.s individuals and through their associations highlighting the plight of Indian residents returning to India after long years abroad. It was represented that the NRIs having spent long years of their life abroad did not find conditions congenial in their own country on their return either to settle down or to take up any business. On account of rigid legal provisions of existing Rent laws, the NRIs were unable to recover possession of their own residential building from the tenants. Government having considered the situation had decided that the existing Rent Legislation viz. East Punjab Urban Rent Restriction Act, 1949 should be amended to provide relief to NRIs to enable them to recover possession of a residential or scheduled building and/or one non-residential building for their own use.”

Section 13-B : Right to recover immediate possession of residential building or scheduled building 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 the 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.”

Section 19(2-B) : The owner, who is a Non-resident Indian and who having evicted a tenant from a residential building or a scheduled building and/or non-residential building in pursuance of an order made under Section 13-B, does not occupy it for a continuous period of three months from the date of such eviction, or lets out the whole or any part of such building from which the tenant was evicted to any person, other than the tenant in contravention of the provisions of sub-section (3) of Section 13-B, shall be punishable with imprisonment for a term, which may extend to six months or with fine which may be extended to one thousand rupees or both.”
11. The amendment introduced in the Act created a special class of NRI landlords and repose special right to them to recover immediate possession from the tenants occupying their premises provided, such premises were required by them. Section 13-B intends to provide immediate possession of the accommodation to the NRI landlord which is in possession of the tenant if the landlord requires the same for his or her use or for the use of any one ordinarily living with him/her and is dependent on him or her. Sub-section (1) of Section 13-B postulates that the NRI-landlord should be owner of the building from which he has asked ejectment of the tenant. He should require the same for his or her use or for the use of anyone ordinarily living with him/her and is dependent on him or her. He should be the owner of that building for five years before he applied to the Controller for possession of such building. The right under Section 13-B of immediate possession could be availed of only once during the life time of such an owner/NRI landlord. Sub-section (2) of Section 13-B gives a choice to the NRI-landlord to select one among several others residential building or schedule building and/or non-residential building for the purpose of eviction of the tenant from that premises. Residential building is defined in Section 2(g) to mean a building which is not a non-residential building. Scheduled building is defined in Section 2(h) of the Act which means a residential building being used by a person engaged in one or more of the professions, namely, lawyers, architects, dentists, engineers, veterinary surgeons, medical practitioners including practitioners of indigenous systems of medicine and who occupies the same partly for his business and party for his residence. Sub-section (3) of Section 13-B puts a restriction on the landlord to deal with building of which he has taken possession by virtue of the order passed under Section 13-B of the Act of 1949. Under this section the owner who recovers the possession of the building by virtue of the order passed under Section 13-B shall neither transfer it either by sale or by any other mode nor he shall let it out for the period of five years from the date he took possession of the building. In case there is a breach on the part of the owner who took possession of the building, of any of the conditions, the tenant who had been evicted would be entitled to apply to the Controller for an order directing that the tenant be restored back possession of that building and on such a petition being moved, the Controller would pass an appropriate order. Apart from the restriction which is imposed by sub-section (3) of Section 13-B on the landlord’s right to deal with the building of which he took possession under the provisions 13-B, a further restriction has been imposed on the landlord under Section 19(2-B) of the Act of 1949. Section 19(2-B) contemplates that when the order for possession is being passed in favour of the owner-landlord under Section 13-B, he is required to occupy the premises continuously for the period of three months from the date of eviction of the tenant. He is prohibited from letting out the whole or any part of that building from which the tenant was evicted to any other person except the tenant who had been evicted by virtue of the order passed under Section 13-B. In contravention of these restrictions, landlord is liable for a penal action and can be imposed punishment of imprisonment for a term which may extend to six months or with fine which may extend to rupees one thousand or with both.

12. The application of the NRI-landlord for eviction of a tenant on the ground of his requirement under Section 13-B is to be disposed of in the manner indicated in Section 18-A of the Act. The procedure and provisions show that when an application is made to the Rent Controller and the summons issued on the tenant, the tenant cannot contest that application of the landlord for his eviction unless he obtains leave to contest the application under sub-section (5) of Section 18-A of the Act of 1949. Sub-sections (4), (5), (6) and (8) of Section 18-A are re-produced below :

“Sub-section (4) : The tenant on whom the service of summons has been declared to have been validly made under sub-section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled building and/or non-residential building, as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the specified landlord or, as the case may be, the widow, widower, child, grand-child or the widowed daughter-in-law of such specified landlord or the owner who is a non-resident Indian, in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction of the tenant.

Sub-section (5) : The Controller may give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the specified landlord or, as the case may be, the widow, widower, child, grand-child or widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian from obtaining an order for the recovery of possession of the residential building or scheduled building and/or non-residential building, as the case may be, under (Section 13-A or Section 13-B).

Sub-section (6) : Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing on a date not later than one month from the date on which leave is granted to the tenant to contest and shall hear the application from day-to-day till the hearing is concluded and application decided.

Sub-section (8) : No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building and/or non-residential building as the case may be, made by the Controller in accordance with the procedure specified in this section :

Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is accordance to law, call for the records of the case and pass such order in respect thereto as it thinks fit.”
These provisions indicate that in order to obtain leave to contest the application of the landlord, the tenant has to file an affidavit taking the grounds on which he wants to contest that application. If the affidavit filed by the tenant discloses such facts as would disentitle the NRI-landlord from obtaining an order for the recovery of immediate possession, the Controller would grant leave to the tenant to contest landlord’s application for eviction. Once the leave is granted, the application is required to be disposed of as per the procedure applicable to the Court of Small Causes. The Controller is required to commence the hearing within one month from the date on which the leave is granted to the tenant to contest. The application shall be heard day-to-day till hearing is concluded and application decided. The order to direct recovery of possession of the suit accommodation made by the Controller is not subject to appeal or the second appeal. However, the High Court may call for the record of the case to satisfy itself that the order passed by the Controller is in accordance with law and may pass such order as it thinks fit.

13. The above provisions makes it explicitly clear that right to eject the tenant, under Section 13-B, is available to that landlord only who has a particular legal status or character namely, that he is non-resident Indian landlord, he is owner of the suit building for five years before he availed of that right. The landlord has also to prove his requirement in respect of that building.

14. We may now take up the contentious issue relating to the standard of proof required by the NRI landlord to prove his requirement of the accommodation from which the ejectment is asked for in the light of the relevant provisions imposing conditions on his enjoyment of the premises, possession of which, to be obtained under Section 13-B of the Act of 1949.

15. The phrase “bonafide requirement” or “bonafide need” or “required reasonably in good faith” or “required”, occur in almost all Rent Control Acts with the underline legislative intent which has been considered and demonstrated innumerable (underlying ?) times by various High Courts as also by this Court, some of which we would like to refer to. In Ram Dass v. Ishwar Chander, 1988(1) RCR(Rent) 625 (SC) : 1988(3) SCC 131, it is said that the bonafide need should be genuine and honest, conceived in good faith. It was also indicated that the landlord’s desire for possession, however honest it might otherwise be, has inevitably, a subjective element in it, and that desire, to become a ‘requirement’ in law must have the objective element of a ‘need’ which can be decided only by taking all the relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down.

16. In Bega Begum and others v. Abdul Ahad Khan (dead) by LRs. and others, 1979(1) SCC 273 it was held by this Court that the words “reasonable requirement” undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so to make even the genuine need as nothing but a desire.

17. In Surjit Singh Kalra v. Union of India and another, 1991(1) RCR(Rent) 347 (SC) : 1991(2) SCC 87, a Three-Judge Bench of this Court has held as under :

“The tenant of course is entitled to raise all relevant contentions as against the claim of the classified landlords. The fact that there is no reference to the words ‘bonafide’ requirement in Section 14-B to 14-D does not absolve the landlord from proving that his requirement is bonafide or the tenant from showing that it is not bonafide. In fact every claim for eviction against a tenant must be a bone fide one. There is also enough indication in support of this construction from the title of Section 25-B which states “special procedure for the disposal of applications for eviction on the ground of bonafide requirement”.
18. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999(2) RCR(Rent) 141 (SC) : 1999(6) SCC 222, this Court while dealing with the aspect of bonafide requirement has said that in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself – whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest.

19. From the aforesaid decisions the requirement of the landlord of the suit accommodation is to be established as genuine need and not a pretext to get the accommodation vacated. The provisions of Sections 18-A(4) and (5) concede to the tenant’s right to defend the proceedings initiated under Section 13-B showing that the requirement of the landlord is not genuine or bonafide. The legislative intent for setting up of a special procedure for NRI landlords is obvious from the legislative intent which has been deliberately designed making distinction between the ordinary landlords and special category of landlords. The Controller’s power to give leave to contest the application filed under Section 13-B is restricted by the condition that the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for recovery of possession. It is needless to say that in the summary proceedings the tenant’s right to contest the application would be restricted to the parameters of Section 13-B of the Act. He cannot widen the scope of his defence by relying on any other fact which does not fall within the parameters of Section 13-B. The tenant’s defence is restricted and cannot go beyond the scope of the provisions of the Act applicable to the NRI landlord. Under Section 13-B the landlord is entitled for eviction if he requires the suit accommodation for his or her use or the use of the dependant, (who) ordinarily lives with him or her. The requirement would necessarily to be genuine or bonafide requirement and it cannot be said that although the requirement is not genuine or bonafide, he would be entitled to the ejectment of the tenant nor it can be said that in no circumstances the tenant will not be (will be ?) allowed to prove that the requirement of the landlord is not genuine or bonafide. A tenant’s right to defend the claim of the landlord under Section 13-B for ejectment would arise if the tenant could be able to show that the landlord in the proceedings is not NRI landlord; that he is not the owner thereof or that his ownership is not for the required period of five years before the institution of proceedings and that the landlord’s requirement is not bonafide.

20. The legislative intent of expeditious disposal of the application for ejectment of the tenant filed by the NRI landlord is reflected from the summary procedure prescribed under Section 18-A of the Act of 1949 which requires the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of an application. The Legislature wants the decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction, it is only the High Court which can exercise the power of consideration of the case, whether the decision of the Controller is in accordance with law. Section 13-B gives right of ejectment to special category of landlord who is NRI (Non-Resident Indian); and owner of the premises for five years before action is commenced. Such a landlord is permitted to file an application for ejectment only once during his life time. Sub-section (3) of Section 13-B imposes a restriction that he shall not transfer through sale or any other means or lease out the ejected premises before the expiry of the period of five years from the date of taking possession of the said building. Not only that, if there is a breach of any of the conditions of sub-section (3) of Section 13-B, the tenant is given a right of restoration of possession of the said building. Under sub-section (2-B) of Section 19 the landlord has to take possession and keep it for a continuous period of three months and he is prohibited from letting out the whole or any part of such building to any other person except the evicted tenant and any contravention thereof, he shall be liable for punishment of imprisonment to the term which can be extended upto six months. These restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine. Landlord, after the decree for possession, is bound to possess the accommodation. Landlord is prohibited from transferring it or letting it out for a period of five years. Virtually conditions and restrictions imposed on the NRI landlord makes it improbable for any NRI landlord to approach the Court for ejectment of a tenant unless his need is bonafide. No unscrupulous landlord probably, under this section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him by which practically he is deprived of his right in the property not only as a lessor but also as the owner of the property. There is a restriction imposed even on the transfer of the property by sale or any other manner. The restriction imposed on the landlord by all probability points to the genuine requirement of the landlord. In our view there are inbuilt protections in the relevant provisions, for the tenants that whenever the landlord would approach the Court he would approach when his need is genuine and bonafide. It is, of course, subject to tenants’ right to rebut it but with strong and cogent evidence. In our view, (in) the proceeding taken up under Section 13-B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlord’s need pleaded in the petition is genuine and bonafide. But this would not dis-entitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord’s favour that his requirement of occupation of the premises is real and genuine.

21. We cannot subscribe to the submission of the learned counsel appearing for the respondents/landlords, that if the inquiry in the allegation of landlord’s need regarding the bonafide and genuineness is permitted, the legislative intent of immediate delivery of possession of the accommodation owned by them would be defeated. Time and again this Court has laid down that legislative intent has to be ascertained according to plain language used in the enactment and basic rule of statutory construction should be preferred which advances the purpose and object of a legislation and not which leads to anomalies, injustice or absurdities. To refer some, they are K.P. Verghese v. Income Tax Officer, Ernakulam and another, 1981(4) SCC 173; Babaji Kondaji Garad v. Nasik Merchants Co-operative Bank Ltd., Nasik and others, 1984(2) SCC 50; Ravulu Subba Rao and others v. Commnr. of Income-tax, Madras, AIR 1956 Supreme Court 604.

22. The golden rule of construction is that when the words of legislation are plain and unambiguous, effect must be given to them. The basic principle on which this rule is based since the words must have spoken as clearly to legislatures, as to judges, it may be safely presumed that the legislature intended what the words plainly say. The legislative intent of the enactment may be gathered from several sources which is, from the statute itself, from the preamble to the statute, from the statement of objects and reasons, from the legislative debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where they may be allowed. Record may be had from legislative history and latest legislation also. But the primary rule of construction would be to ascertain the plain language used in the enactment which advances the purpose and object of the legislation. No doubt the legislative intent in enacting Section 13-B, is to provide for immediate possession of the accommodation owned by the NRI but it cannot be assumed that the legislature wants the NRI landlord/owner, to get the possession of the accommodation from the tenant even if he does not require it and the need pleaded is proved to be a mere pretext to get the accommodation vacated. Had that not been the intention of the legislatures, the phrase ‘required’ by the NRI landlord would not have been used in Section 13-B. The classified landlords are given the benefit of summary trial under Section 18-A of the Act. The summary trial is in two parts. Sub-section (4) provides that after the service of summons the tenant has no right to contest the prayer for eviction from the residential building, or schedule building and/or non-residential building as the case may be unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as provided in sub-section (5) of Section 13-B to contest the matter. If the tenant defaults to appear in pursuance of summons or when he does not get leave to contest, the Controller shall presume the statements made by the NRI in his petition have been admitted by the tenant and pass an order of eviction. This eventuality is contemplated when a tenant does not appear in pursuance of the summon issued and served or where the leave to contest has not been granted by the Controller. The second facet of the section comes into operation when the leave to contest is granted by the Controller. Sub-section (6) of Section 18-A provides that the Controller has to commence the hearing of the petition not later than one month from the date on which the leave was granted to the tenant to contest and he has to hear the application from day-to-day till the hearing is concluded and the application is decided. It is further provided that the procedure which shall be followed in deciding the application would be as is being practiced by Court of Small Causes. No appeal or second appeal is provided. From the aforesaid, it is absolutely apparent that even when leave would be given to the tenant to contest, legislatures have taken care of expeditious disposal of the petition for ejectment filed by the NRI landlord. Trial of the issue of bonafide requirement of the landlord in the procedure prescribed would not take much time and thus we cannot accept the argument that the phrase “required” used by the legislature in Section 13-B would not mean bonafide or genuine requirement and the section has to be construed as and when the allegation is made by the landlord of his need, it is to be taken as gospel truth and the tenant’s right to defend on that count is completely extinguished and given a go-bye. We do not think High Court is right in holding that mere prayer of the NRI landlord that tenanted premises is required by him or his dependent living with him entails decree of eviction on the mere allegation of requirement and no leave to contest can be given in respect of cases which are covered by various provision restricting the right of the landlord to deal with the premises taken possession of by him in pursuance of the decree for eviction passed by the Controller under Section 13-B of the Act of 1949. We hold that allegations made by the NRI landlord of his requirement shall be presumed to be genuine and bonafide unless rebutted by the tenant by placement of cogent and material facts and evidence in support thereof at the stage of ‘leave to contest’ before the Controller. We feel any other interpretation would completely whittle down and deny the tenant’s right to show and prove that landlord does not in fact, or in law require suit premises.

23. It is further contended that for according relief under Section 13-B of the Act of 1949, it must be proved by the NRI landlord that he has permanently returned to India or that his intentions are to permanently return to India. The intention to permanently settle down in India should be read into words “return” used in Section 13-B. The specific category of NRI landlord has been created by the Legislature with the intention to provide relief to them who are intending to settle down in India or take up business in India only. Learned counsel appearing for the landlords have submitted that from the very definition of the NRI in Section 2(dd) of the Act, it is not necessary for the NRI-landlord to permanently return to India either for the purpose of his residence or for non-residential purpose.

24. Definition of “Non-resident Indian” (NRI) under the Act contemplates that any person who is of an Indian origin, and who has settled either permanently or temporarily outside India for taking up employment; or for carrying on a business or vocation outside India; or for any other purpose in such circumstances as would indicate to stay outside India for an uncertain period, would be a Non-resident Indian. Thus to be a NRI, it is sufficient that a person of an Indian origin establishes that he has permanently or temporarily settled outside India for his business or on account of his employment, or for any other purpose which would indicate his intention to stay outside India for an uncertain period. Therefore, any person who has gone out of India and temporarily settled there for the purposes of undertaking certain course or degree of University would not be a NRI because his stay could not be said to be for an uncertain period. A person to be an NRI, first should be of an India origin. The phrase “Indian Origin” has not been defined in the Act of 1949. The dictionary and in ordinary parlance phrase “origin” refers to person’s parentage or ancestry. The person whose parent, grand-parents, or great-grand parents were born in India and permanently resided in India would be an NRI for the purposes of the Act of 1949. It is not necessary that the person should be a citizen of India and shifted to the foreign country or that because he holds foreign passport he would not be NRI. In the appeals before us, there is no challenge that the landlords are not the NRIs within the meaning of the Act because they do not have the Indian origin. Submission of the learned counsel for the appellants is to bring the case within the four corners of Sections 2(dd) and 13-B of the Act of 1949, it is necessary that NRI has to return to India permanently. We are unable to agree with the interpretation of Sections 2(dd) and 13-B sought to be placed by the learned counsel. Return to India could not be read as return to India permanently with an intention to settle in India permanently. If we read the phrase “return to India” along with the definition of the “NRI” under Section 2(dd) of the Act, it is clear that the special category of landlords NRI could also be a person who has settled permanently outside India. Thus permanent resident outside India being NRI can claim ejectment.

25. When we read Section 13-B along with the definition of the NRI it is apparent that the person who is a permanently residing outside India can also claim possession under Section 13-B of the Act. All that is required under Section 13-B is that a NRI should return to India and claim the premises for his/her use or for the use of any dependent ordinarily living with him. There is no requirement that he has permanently settled in India on his return or he has returned to India with an intention to permanently settle in India. A NRI may require the accommodation for expansion of his business which he is carrying on in other country or requires the accommodation for his temporary stay. Under Section 13-B, a NRI can also claim ejectment of the tenant from the premises for the purposes of any other person who is dependent on him and is ordinarily living with him, which makes it clear that although a NRI resides permanently in other country, he could get the accommodation vacated for the need of his dependant who ordinarily lives with him and he intends to come to India, choosing it to be his permanent abode. We do not find any substance in the submissions made by the learned counsel that the words “return to India” under Section 13-B of the Act denote return to India permanently.

26. On the interpretation given by us and on a plain reading of the provisions, once in a lifetime possession is given to a NRI to get one building vacated in a summary manner. A Non-resident Indian landlord is required to prove that :- (i) he is a NRI; (ii) that he has returned to India permanently or for the temporary period; (iii) requirement of the accommodation by him or his dependent is genuine; and (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenant’s affidavit asking for leave to contest the NRI landlord’s application should confine to the grounds which NRI landlord is required to prove, to get ejectment under Section 13-B of the Act. The Controller’s power to give leave to contest the application filed under Section 13-B circumscribe to the grounds and inquiry to the aspects specified in the Section 13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller.

27. In the light of interpretation given by us to relevant provisions of the Act of 1949 applicable to NRI landlord we shall consider individual cases of the appellants/tenants. We are confining our decision to the relevant grounds raised by the tenants in their affidavit filed seeking leave to defend and allegations made therein and the points urged before the High Court.

SLP (C) 17864 of 2003

Baldev Singh v. Monish Saini

28. In the facts and circumstances of the case, the High Court was right in holding that the landlord is not required to prove that he would permanently return to India. From the available material on record it is apparent that the tenant had not placed before the Controller the cogent material in his affidavit or along with the affidavit to prove that the landlord is in possession of reasonable suitable accommodation as owner, in his possession, to indicate that landlord’s need was not genuine and bonafide. In this circumstance, we do not find any infirmity in the order passed neither by the Controller refusing to grant leave to contest nor by the High Court dismissing the revision petition of the appellant.

SLP (C) No. 19540 of 2003,

Laxmi Kant v. Surjit Singh Channa

29. In this matter the tenant has raised two contentions :- (1) that the landlord is not the owner of the suit accommodation; (2) that he is not a NRI within the meaning of the Act and has no intention to return to India, reside and work here. Leave has been granted by the Controller and after consideration of the evidence placed on record, a finding is arrived at that the landlord is a NRI, he has returned to India and that he is the owner of the premises for the last five years, and these findings were confirmed by the High Court. We are not persuaded to take a different view in the matter.

SLP (C) 3989 of 2004

Inder Bhushan Khanna v. Virendra Kumar Bhalla

30. In this matter, the landlord invoked Section 13-B of the Act of 1949 and filed a petition claiming ejectment of the tenant on the allegations that he is a NRI as per the definition under Section 2(dd) of the Act. It is alleged by the landlord that he was operated for triple by-pass surgery and the cold climate of USA aggravated his health problems and he wants to settle in India along with his wife and for the said purpose he wants the suit accommodation, the portion of the premises being let out to the tenant which contains the amenities of toilet, bathroom etc., which were common, which would hamper peaceful stay leading to lack of privacy. The tenant entered appearance and filed his affidavit as required under Section 18-A(5) of the Act of 1949 contending therein that since the landlord was a citizen of USA and has not returned to India, hence, not covered under the definition of NRI within Section 2(dd) of the Act. The landlord had sought the possession only for the winter months and such requirement cannot be called shifting permanently to India as the part of the building in possession of the landlord has a separate municipal number and, therefore, it would be an independent building, different than the portion given to the tenant. Besides this, he possessed three big rooms, kitchen and verandah therein in a building and the landlord does not require the portion of the building which was let out to the tenant. The Controller on the basis of the passport found the landlord to be a NRI. The Controller held the need of the landlord to be genuine. Aggrieved by the decision of the Controller the appellant/tenant filed a civil revision petition in the High Court of Punjab and Haryana. The High Court dismissed the civil revision petition holding that the site plan produced by the landlord clearly showed the tenanted premises and premises in possession of the landlord as one building and the need of the landlord is genuine as he would require the entire premises for his own use; that the landlord is a NRI within the meaning of Section 2(dd) of the Act. It is nowhere stipulated in the Act that the NRI landlord must occupy the premises for all the 12 months of the year or he must go back to India permanently.

On these findings arrived at by the two Courts below, we hardly find any scope to interfere with in an appeal.

SLP (C) No. 4566 of 2004

Shangara Singh v. Malkiat Singh

31. Upon notice to the application for eviction the tenant/appellant has filed an affidavit seeking leave to contest as required under Section 18-A(5) of the Act. The affidavit of the appellant has raised the following objections :- (1) that the respondent has been a citizen of England and hence could not invoke Section 13-B of the Act without prior permission of the Central Government; (2) that respondent has not returned to India permanently as he has come to India after getting visa from the United Kingdom and could not live in India after the expiry of visa; (3) that respondent does not require the shop in dispute for his personal use and he already owns six other shops. Moreover, the landlord has not disclosed other commercial plots and property, which he owns. The Controller has, on facts found that the landlord is a NRI and has returned to India. The Controller held that the fact of bonafide requirement is not required to be proved by the landlord. The revision preferred by the tenant challenging the order of the Controller has been dismissed by the High Court in limine and it was held that although the landlord does not give the specific nature of business intended by him to set up in India after the settlement that would not be fatal to his claim. The learned judge has explained the ambit and the expanse of the requirement of the proof of bonafide need for the purpose of Section 13-B of the Act of 1949 and pointed out that the bonafide requirement of the premises would be proved once the statutory conditions were fulfilled, unless and until, the tenant brought on record such facts which might show that ejectment petition lacks bonafide. It has also been held that in-built safeguards provided under the Act are sufficient enough to check the bonafide requirement. We do not find any infirmity in the reasoning adopted by the learned Judge of the High Court nor perversity on facts to interfere with the order of the High Court.

SLP (C) No. 4383 of 2004

Ashok Kapoor v. Smt. Harbans Kaur and another

32. The landlady (Smt. Harbans Kaur) along with her son (Satbir Singh) have presented the ejectment petition before the Controller, Ludhiana by making averments that the tenant is bound to surrender the immediate possession of the suit property to them. The landlords have claimed the status of the NRI as per definition under Section 2(dd) of the Act. The ejectment has been sought for on the grounds :- (1) that they want to settle in India; (2) that the son is dependent on the landlady and wants to establish his business at Ludhiana; (3) that the landlady has no residential house at Ludhiana except some portion of the property No. 3-H, Sarabha Nagar, Ludhiana which is not sufficient for the accommodation of the landlady. The tenant, after notice has entered appearance and also has filed an affidavit seeking leave to contest the petition alleging therein that the respondents are neither permanently nor temporarily settled outside India; that the landlords have not specified as to how much premises would be required for residential purposes and for non-residential purposes; that the landlords are in possession of more than 25000 sq. yds. of property bearing No. 4-H situated at Sarabha Nagar, Ludhiana; that another son of the landlady and the brother of Satbir Singh, viz., Harbhajan Singh has already got a decision in his favour by the Court of Rent Controller in which the ejectment order has been passed against another tenant-Malkiat Singh, in relation to property No. 4-H and, therefore, need is not genuine and the landlords are misusing the provisions of the Act. The Controller has declined the prayer to contest the petition on the findings of fact that the documents on record clearly shows that the landlords are the NRIs that she is the owner of the property for more than last five years and since the possession of premises No. 4-H has not been delivered, the respondents could file a petition for ejectment of the appellant/tenant under Section 13-B of the Act. The High Court has found that decree in regard to House No. 4-H has been passed in favour of Harbhajan Singh, the other son of the landlady and, therefore, it cannot be said that the suit premises (No. 3- H) is not required by landlords and the same could be got vacated for the bonafide use and occupation of the brother, i.e., Satbir Singh. We find that in another suit since the decree is passed in favour of Harbhajan Singh, the other son of the landlady on his bonafide need, there is no impediment in passing decree for possession of House No. 3-H for the bonafide need of Satbir Singh and the landlady.

SLP (C) No. 24572 of 2003

Malkiat Singh v. Harbhajan Singh and another

33. In this appeal the appellant is a tenant in the small portion measuring 25′ x 140′ in the property bearing No. 4-H situated at Sarabha Nagar, Ludhiana and Harbhajan Singh along with his brother Satveer Singh are the owner- landlords of the suit property. Harbhajan Singh alongwith his mother (proforma plaintiff) have invoked Section 13-B of the Act and presented the ejectment petition before the Controller, Ludhiana for ejectment of the tenant alleging that he is the owner of the property which was let out by his mother on behalf of him to the tenant; that he is a Non-Resident Indian under the Act. He requires the accommodation for the residential purpose and also to start his business. After service of notice the tenant-appellant filed an affidavit seeking leave to contest as required under Section 18-A(5) of the Act on the ground that he is residing in the small portion of the suit property and the major portion of the property measuring 2500 sq. yds. is in absolute possession of the respondent-landlord and therefore respondent is having the possession of the accommodation, which is sufficient to satisfy his need and that the need claimed is neither genuine nor bonafide; that he is not the NRI.

34. The Controller has declined the prayer of the tenant-appellant and directed him to hand-over the possession of the property in question. The need of the landlord has been found to be genuine and bonafide as landlord is in possession of only portion of House No. 4-H and he wants to settle near his mother in that house. On consideration of the document the Controller has found the landlord to be a NRI landlord. The High Court has accepted the findings arrived at by the Controller and dismissed the suit.

35. The landlord’s genuine need of the suit accommodation is found correct by the two Courts and nothing has been brought to our notice to take a different view in the matter. In the affidavit seeking leave to defend, except a bare allegation that the landlord’s need is not genuine, no other material has been placed to rebut the presumption which arises in favour of the landlord of his genuine and bonafide requirement of the accommodation.

SLP (C) No. 17622 of 2003

Mohinder Singh v. Git Singh

36. The tenancy in this appeal is of a garage which was rented out to the appellant. The respondent-landlord is a pensioner in Britain. He has filed a petition for ejectment invoking the provisions of Section 13-B of the Act, alleging that he is a NRI, that he requires the property for his own use and for the use of his family members. He has alleged that he and his family members came to India permanently and wanted to settle here; that he has not invoked Section 13-B for eviction of any other building and that he shall follow every requirement as contemplated to be followed by the NRI-landlord. The tenant-appellant has entered appearance and filed his affidavit seeking leave to contest on the ground that the landlord is not the owner of the disputed premises; that the landlord is not NRI; that the premises is a non- residential premises and could not be vacated for residential purpose; that the suit accommodation is not required genuinely and that the landlord has moved the petition for eviction with ulterior motive to sell the property only.

37. Vide order dated 8.2.2002, Controller has granted leave to contest. After trial the Controller has found that the tenant himself admitted the ownership of the disputed premises of the landlord; that the Landlord is a NRI within the meaning of Section 2(dd) of the Act of 1949. The need of the landlord of the suit accommodation for personal use is held to be genuine as there is no suitable accommodation available for the landlord’s use in the same locality. The High Court has dismissed the revision summarily at the motion stage. The High Court has held that it is immaterial as to which category of building and for what purpose that building is sought to be evicted as the Act stipulate that a NRI landlord can file application for ejectment of any type of building, whether residential or non-residential for any of the purpose i.e., for residential use or for non-residential use. The High Court has held that there is a presumption of bonafide requirement exist as in favour of the landlord. The High Court further held that the bonafides of his claim are not open to challenge as there are in-built safeguards provided in the Act itself.

38. After going through the record we do not find that the tenant has produced any material along with his affidavit whereby he could be said to have rebutted the presumption in favour of the landlord of his bonafide requirement and thus the two Courts have rightly rejected his assertion that the need of the landlord is not genuine or bonafide. Section 13-B permits ejectment of a tenant from the residential or non-residential premises or from the schedule building if the NRI requires it for his or for the use of his dependent. Section 13-B does not postulate that the NRI-landlord cannot seek ejectment of a non-residential building if the requirement of the landlord is for residential purpose. Having considered all the facts of the case, this Court does not feel it necessary to interfere with the order passed by the High Court.

SLP (C) No. 17039 of 2004

Joginder Singh v. Tarsem Lal

39. The tenanted premises in this appeal consists of one shop on the ground floor and a residential flat on the first floor. The landlord has invoked Section 13-B of the Act and presented the ejectment petition before the Controller on the allegations that the tenant is bound to surrender immediate possession of the disputed premises as he wants to settle in India and hence requires the premises for his use as well as for the use of his wife who is residing with him and is dependent upon him. The commercial premises will be utilised by him for starting his business jointly with his wife. He has claimed the status of the NRI as per definition of Section 2(dd) of the Act of 1949. The tenant has entered appearance and filed an affidavit. He has denied the ownership of the landlord regarding the disputed premises; that a single petition for ejectment of the non-residential premises and residential premises is not maintainable; that the landlord-respondent is not a NRI; that the need of the respondent is not bonafide as he is the owner and is in possession of a shop situated on northern side of the building in dispute wherefrom he is running the business of a dry-cleaner in the name & style of “New Bharat Dry Cleaners”. The Controller has held that the landlord is the owner of the suit premises and that he is a NRI under Section 2(dd) of the Act. The Controller has also recorded the finding that the entire suit premises was under one tenancy as it was let out on the rent of Rs. 60/- per month. On the basis of the Sale-Deed dated 19.1.1987 Controller has held that the landlord owns suit premises more than five years from the date of presentation of the petition. Considering these aspects, the Controller refused to give permission to contest the petition filed by the landlord.

40. In the High Court it has been urged that the rent of the demised premises has been taken on two separate rent notes and therefore the common petition for ejectment of two tenanted premises was not maintainable. It is also urged that the landlord is not a Non-resident Indian and therefore cannot take advantage of Section 13-B of the Act of 1949. It is also contended that the landlord is not the owner of the premises. The High Court has recorded its finding that the two premises were taken on a rent for Rs. 60/- per month in the year 1960 and thus the tenant cannot raise the question that the landlord cannot file the ejectment proceeding of the entire premises as a single unit. The High Court relied on the Sale-Deed of the suit premises for finding that the landlord is the owner of the premises for more than five years. The contention that the appellant-landlord is not a NRI has been rejected on the basis of the passport issued by the United States of America which reveals that the birth place of the landlord is India and he is shown to be a citizen of USA. No other question was urged before the High Court. The High Court has upheld the decision of the Controller whereby the leave to defend was rejected. The findings recorded by the Controller and that of the High Court are based on the material placed on record and no case is made out before us to interfere.

SLP (C) Nos. 4204-05 of 2004

Kasturi Lal v. Avtar Singh

41. The landlord-respondent, in this appeal, is a British citizen. He has filed a petition invoking the provisions of Section 13-B of the Act of 1949, by making averments that the suit accommodation is required by him to run the business of electric goods; that due to advance age and cold climate in England, he is not keeping good health; and that doctors have advised him to live in India. He has also stated that later on he intends to demolish the entire building and wants to re-construct it according to his needs. Upon notice, the tenant-appellant has filed an affidavit contending therein that the landlord must furnish a prima facie proof that he wants to shift to India permanently by surrendering the citizenship of U.K. as well as the Insurance Card, medical facilities and other amenities which have been provided to him in Britain; that the landlord has not come to India with his complete bag & baggage; that the respondent-landlord has suppressed the fact about his other properties in the city; that the landlord had previously filed a suit for ejectment invoking general provisions of the Act which has been dismissed. The Controller has declined to grant leave to contest the petition. The Controller had found as a fact that respondent was non-resident Indian and also the owner of the property in suit for more than five years. The Controller has recorded the finding of his intention to return back to India and consequent thereof leave to contest the application filed by the appellant was rejected. Aggrieved thereof, the tenant preferred a revision petition before the High Court. He has contended before the High Court that there is no evidence on record that the appellant shall shift to India or has intention to return to India, as the landlord is a British citizen and has taken no steps to settle permanently in India. It is also urged before the High Court that as the landlord has expressed his wish to re-construct the building after demolition according to his needs, no order for ejectment could be passed as that is not the ground available to the landlord under Section 13-B of the Act. The High Court has held that the assertion of the landlord that he wishes to reside permanently in India on the basis of the allegations made in the petition for ejectment are reliable. It is further held by the High Court that there is no bar under the Act so as to deny the landlord the right of reconstructing the building according to his needs. We do not find any infirmity in the reasoning of the High Court. As per provisions of Section 13-B, what is required to be proved by the landlord is his requirement of the building. There is no prohibition for the landlord from reconstructing the building according to his needs so long as he does not breach any of the conditions required to be fulfilled under the law. The requirement of the landlord can be to get the accommodation vacated and make it according to his needs. We do not find any substance in the appeal. It is accordingly dismissed.

SLP (C) 10865 of 2004

Gurbachan Singh Badhan v. Gurcharan Singh

42. The tenant has filed an affidavit seeking leave to contest on the grounds : (1) that the application filed by the landlord under Section 13-B of the Act is not maintainable under Section 10 of the CPC; (2) non-joinder of the necessary parties as respondent has not been the sole owner of the property; (3) that application has been filed through an attorney; (4) that the owner/landlord has sufficient accommodation in his possession and he has a property in Village Damonda. In the affidavit filed by the tenant the particulars have not been specified. The other proceedings which have been taken up by the landlord for ejectment under the general provisions of the Act, would not bar the proceedings taken up under the special provision connected with the welfare of the NRI. The ownership of the said premises has been established by the landlord on the basis of the documents produced and even assuring that the landlord was the sole owner of the property in dispute, there is no bar for him to take up the proceedings under Section 13(B) of the Act. The High Court has upheld the order passed by the Controller and held that the landlord/respondent is the owner of the property for more than the five years and that it is not necessary for an NRI to personally come and file the petition; and that if the petition is filed through an attorney and the NRI comes later, requirement of Section 13-B is satisfied. There are no particulars given about the other properties held by the landlord and in the absence of cogent material placed before the Controller as to the other properties alleged to have been held by the landlord, the burden placed on the tenant to rebut the presumption that the need of the landlord is genuine and bonafide, would not stand discharged and thus there is no ground to interfere with the decision of the High Court.

43. In view of the discussion held above, we find no merit in the above appeals preferred by the tenants and they are accordingly dismissed. However, in the circumstances of the case, parties shall bear their own costs.

Appeals dismissed.

Kamaljit Singh v. Sarabjit Singh (SC) 2014(16) SCC 472

SUPREME COURT OF INDIA

JUDGMENT
T.S. Thakur, J. – 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 L 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(*) R.C.R. (Rent) 832 : (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:

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

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

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

(4) 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.