Vinay Verma vs Kamlesh Tiwari
2023 Latest Caselaw 370 Chatt

                                        1

                                                                      AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                              WPC No. 5059 of 2022
        Vinay Verma S/o Shri Dhannalal Verma Aged About 34 Years R/o
        Near Subhash Chowk, Station Road, Polsaipara, Durg, Tahsil And
        District Durg, Chhattisgarh
                                                             ---- Petitioner
                                   Versus
     1. Kamlesh Tiwari S/o Late Laxmi Narayan Tiwari Aged About 62
        Years R/o Near Aman Apartment, Vidyut Nagar, Durt, Tahsil And
        District Durg, Chhattisgarh
     2. The Chhattisgarh Rent Control Tribunal Raipur, Chhattisgarh
     3. The Rent Control Authority Durg, District : Durg, Chhattisgarh
                                                   Respondents
        _____________________________________________________
For petitioner - Ms. Sharmila Singhai, Sr. Advocate with Shri Avinash
Chand Sahu, Advocate.
For respondent No.1 - Shri B.P. Sharma, Advocate with Shri Nikhil
Parakh, Advocate.

                 Hon'ble Shri Justice Goutam Bhaduri &
                 Hon'ble Shri Justice N.K. Chandravanshi
                              Order on Board


Per Goutam Bhaduri, J.

18/01/2023 Heard.

1. Instant petition is against the order dated 28/09/2022 passed by the

Chhattisgarh Rent Control Tribunal, Raipur (henceforth 'the Tribunal'). By

such order, the Tribunal has affirmed the eviction order dated 4/03/2021

passed by learned Rent Control Authority.

2. The respondent Kamlesh Tiwari filed an application invoking the

provisions of Chhattisgarh Rent Control Act, 2011 (henceforth 'the Act of

2011') seeking ejectment on a ground enumerated in Schedule 2 of

Section 12(2) of Sr. No.11(a) and (h). The respondent contended that the

tenant is habitual defaulter of payment of rent and further has not vacated

the premises despite service of notice of a specified period of six months.

The Rent Controlling Authority passed an order of ejectment which was

affirmed in appeal by the Tribunal. Hence this petition.

3. Learned counsel for the petitioner/tenant Ms. Sharmila Singhai, Sr.

Advocate assisted by Shri Avinash Chand Sahu, Advocate would submit

that admittedly on the basis of a rent agreement initially executed on

4/09/2006, the petitioner was inducted as a tenant which was for three

years which came to an end on 3rd September, 2009. It is stated

subsequent thereto a sale agreement was executed by one of the brother

of the joint family property namely Ajay Tiwari whereby the suit

property/shop was agreed to be sold for an amount of Rs.31 lakhs and

Rs.16 lakhs was paid as an earnest amount. Learned counsel would

submit that it is the specific case of the petitioner that three shops exist at

the spot which came to be partitioned and one shop was agreed to be

purchased which fell into the share of Ajay Tiwari, for which eviction is

sought for. The agreement was referred as Ex.D-18. It is further submitted

that subsequently one of other co-sharer Kamlesh Tiwari had filed a

petition after service of notice under the Act of 2011. Learned counsel

would further submit that the very fact of non-payment of any rent after

2009 which is saved by the agreement Ex.D-18 would show that no

landlord-tenant relationship ever existed between the parties. She would

further submit that the notice which were exchanged in between the

parties prior to filing of the petition before the Rent Control Authority

specific stands have been taken by the petitioner that in respect of the suit

property, an agreement of sale exist for which different litigation is pending

before the Civil Court and landlord and tenant relation severed. She would

further submit that despite such facts on record the Rent Control Authority

has failed to appreciate and passed the order of ejectment, therefore both

the orders are liable to be set aside.

4. Per contra, Shri B.P. Sharma assisted by Shri Nikhil Parakh,

Advocate for the respondent/landlord would submit that admittedly the

petitioner/tenant tried to purchase a property of a joint ownership and one

of the sharer Ajay Tiwari had agreed to sell his undivided share. He would

further submit that agreement to sell undivided share would not extinguish

the tenancy which commenced in the year 2009 which would be carried

forward. The counsel would submit that determination of tenancy can only

be effected by the virtue of Section 111(d) of the Transfer of Property Act

which necessarily implies that whole of estate is required to be included.

He placed his reliance in (2005) 5 SCC 492 in between Pramod Kumar

Jaiswal & Ors. Vs. Bibi Husn Bano & Ors. and (2022) 10 SCC 496 in

between Karan Kapoor Vs. Madhuri Kumar to submit that if sale is not

registered, it will not extinguish the tenancy right, therefore the doctrine of

merger cannot be applied when intermediate estate floats in between.

Consequently, the finding of the Rent Control Authority and the Tribunal of

existence of landlord and tenancy right is well merited, which do not call

for any interference.

5. We have heard the learned counsel for the parties at length,

perused the evidence and the records.

6. Perusal of the record shows that before filing of the petition before

the Rent Control Authority, notices were exchanged in between the

parties. Initial notice was served by Ex.P-2 by Kamlesh Kumar Tiwari the

respondent herein in accordance with the provisions of the Act of 2011

wherein the vacant accommodation was sought for on the ground

enumerated in Section 12 (2) Schedule 2 Sr. No.11(a) and (h). For the

sake of brevity, the extract of Section 12(2) and Schedule 2 Sr. No.11(a)

and (h) of the Chhattisgarh Rent Control Act, 2011 are reproduced here

under :-

"12.Rights and Obligations of Landlords and Tenants.- xxx

(2) Every landlord shall have rights according to Schedule 2. The Tribunal and Rent Controller shall act at all times to secure to the landlord these rights:

(a) In case of any clash of interests of the landlord and the tenant, and/or any point of doubt in respect of matters relating to rent, the benefit thereof shall be granted to the tenant.

(b) In case of any clash of interests of the landlord and the tenant, and/or any point of doubt in respect of matters relating to returning possession of the accommodation to the tenant, benefit thereof shall be granted to the landlord."

"11. Right to seek from the Rent Controller eviction of the tenant on the following grounds:

(a) If the tenant is a habitual defaulter in payment of rent and/or other dues.

xxxx

xxxx

(h) On 6 months notice to the tenant in writing, without any obligation to assign any reason, but on the condition that the accommodation will not be leased out at a higher rent for atleast 12 months thereafter."

7. Admittedly, thereafter when the premises was not vacated, a

petition was filed for ejectment. The submission of the petitioner that after

agreement Ex.P-1(C) which was an initial agreement of tenancy between

Kamlesh Kumar Tiwari and Vinay Verma came to an end by efflux of time

on 4/09/2009 and subsequently it followed by the agreement of sale

Ex.D-18. By such agreement Ajay Tiwari agreed to sell the suit property

would sever the landlord-tenant relationship. In order to appreciate that

fact evidence adduced by Kamlesh Kumar Tiwari was perused. The

respondent has averred that from 1/10/2013 to 2016 he is entitled for

arrears of rent and since after issuance of notice on 27/09/2016 which was

served on 29/09/2016, the petitioner failed to vacate the shop. Thereafter

the petition for eviction was filed. The service of notice in accordance with

the schedule of 'Act of 2011' is not in dispute that after six months of

service of notice, the premises was not vacated, which otherwise would

create a right in favour of the landlord to get the premises vacated.

Therefore, the order of the Rent Control Authority on the basis of the

cause of action which accrued after service of notice and not vacating the

premises do not appear to be without any jurisdiction.

8. The primary question which has been raised by the petitioner that

whether the order of eviction is bad in law for the reason the landlord-

tenancy relation never continued. The facts shows as after the

determination of tenancy by Kamlesh Tiwari by notice, one of the

co-sharer Ajay Tiwari had agreed to sell the suit premises. To find out the

fact of partition whether took place between the co-sharer we went

through the statement of respondent/landlord as also the petitioner/tenant.

The evidence do not suggest or proved to show that there had been a

partition of the joint status by metes and bounds in between the

co-sharers which included the suit property. On the contrary, the reply to

the notice Ex.D-5 sent by Ajay Tiwari who entered into an agreement

would show that the joint ownership was not severed.

9. Now turning back to the agreement Ex.D-18 which purports that

Ajay Tiwari one of the co-sharer agreed to sell his undivided one third

share in the property which the petitioner as a tenant agreed to purchase,

whether would determine the lease. The perusal of the agreement would

show that it was agreed that the respondent/landlord would get his share

partitioned to the extent of one third, sale deed would be executed in

respect of the property. The perusal of agreement establishes the fact the

petitioner was also in know of the fact that no partition had taken place in

between the co-sharer till such date of execution of agreement dated

25/09/2009 came into being.

10. The submission of the petitioner that when one of the co-sharer has

agreed to sell his part by severance of his share it would determine the

tenancy cannot be sustained. These principle of like nature was

considered by the Supreme Court in (2005) 5 SCC 492 in between

Pramod Kumar Jaiswal & Ors. Vs. Bibi Husn Bano & Ors. wherein the

Supreme Court came to a finding of determination of lease under Section

111 (d) of the Transfer of Property Act, the determination can be said to

have happen in case the interest of lessee and lessor "in the whole of the

property" become vested at the same time in one person in the same

right. Therefore in order to determine the lease, the whole of the property

must be comprised in and if there is an intermediate estate comes to fore

or outstanding it will not lead to constitute the whole of the property has

been transferred. The Supreme Court at para 5, 6 and 16 of its judgment

has laid down the principle and further stated the doctrine of merger would

be prevented in case assignment of a fraction instead of whole takes

place.

11. It would be apt to reproduce para 5, 6 and 16 of the judgment supra

which are reproduced hereunder:-

"5. On the admitted facts and based on the arguments, the only question that requires to be considered is the effect of the purchase of the rights of certain co-owner landlords by the tenants of the building, on the lease originally taken by them and on the basis of which they held the building. A lease in terms of Section 105 of the Transfer of Property Act gets determined on the happening of one of the events referred to in Section 111 of the Transfer of Property Act. The clause relevant for our purpose is admittedly clause (d). Insofar as it is relevant, the Section reads:

"111. Determination of lease.-A lease of immovable property determines

(a)-(c)

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

(e)-(g)

On a plain reading of the provision, it is clear that in a case where a tenant takes an assignment of the rights of the landlord or the reversion, the lease is determined, only in a case where by such assignment, the interests of the lessee and the lessor in the whole of the property, become vested in the tenant. The emphasis in the section is clearly on the coalescing of the entire rights of the lessor and the lessee in the whole of the property in the hands of the lessee. The above provision incorporates the doctrine of merger at common law. According to Blackstone (as quoted in Broom's Legal Maxims)

"when a less estate and a greater estate, limited subsequent to it, coincide and meet in one and the same person without any intermediate estate, the less is immediately annihilated; or in the law phraseology, is said to be merged, that is sunk or drowned in the greater; or to express the same thing in other words, the greater estate is accelerated so as to become at once an estate in possession".

In Cheshire and Burn's Modern Law of Real Property, 16th Edition, it

is stated,

"The term 'merger' means that, where a lesser and a greater estate in the same land come together and vest, without any intermediate estate, in the same person and in the same right, the lesser is immediately annihilated by operation of law. It is said to be "merged", that is, sunk or drowned, in the greater estate. "

It is further stated :

"The essentials are that the estates shall unite in the same person without any intervening estate, and that the person in whom they unite shall hold them both in the same right.

To illustrate the first essential, if A, who is tenant for life, with remainder to B for life, remainder to C in fee, purchases and takes a conveyance of C's fee, the intervening life interest of B, since it is vested, excludes the possibility of merger." (see page 993)

In Megarry's Manual of the Law of Real Property, 8th Edition, it is explained as follows:

"Merger is the counterpart of surrender. Under a surrender, the landlord acquires the lease, whereas merger is the consequence of the tenant retaining the lease and acquiring the reversion, or of a third party acquiring both lease and reversion. The principle is the same in both surrender and merger: the lease is absorbed by the reversion and destroyed.

For merger to be effective, the lease and the reversion must be vested in the same person in the same right with no vested estate intervening."

This is based on the principle that a man cannot be a lessee of himself. The House of Lords in Rye v. Rye 1962 AC 496 said that a person cannot grant himself a lease of the land of which he is the owner. According to Woodfall on Landlord and Tenant:

"It may be laid down as a general rule that whenever the particular estate and that immediately in reversion are both legal or both equitable, and by any act or event subsequent to the creation of the particular estate become for the first time vested in one person in the

same right, their separate existence will cease and a merger will take place."

An extinguishment of a tenancy by merger is thus a counterpart of surrender by the tenant to the landlord. In Puran Chand Vs. Kirpal Singh, (2001) 2 SCC 433, this Court stated that a landlord could not become his own tenant and

"when a landlord transfers his rights in the leased property to his tenant there would be a merger of the rights of the tenant in his higher rights as owner and the tenancy would come to an end under Section 111(d) of the Transfer of Property Act." (SCC p. 440, para

19)"

"6. Thus, the ingredients are that two immediate estates should come into the hands of the same person at the same time and it must be rights in the whole of the property. A merger is prevented if there is an intermediate estate outstanding with another at the relevant time. Obviously, the taking of an assignment of a fraction of the reversion, or the rights of a co-owner landlord, does not and cannot bring about a determination of the lease in terms of Section 111(d) of the Transfer of Property Act. That a lease is not extinguished because the lessee purchases a part of the reversion was laid down by the Privy Council in Sk. Faqir Bakhsh vs. Murli Dhar (1931) 58 IA 75. Their Lordships after setting out the terms of Section 111 of the Transfer of Property Act quoted with approval (at IA p. 78) the statement of the law made by the trial Court in that case that for a merger to take place, "the fusion of interests required by law is to be in respect of the whole of the property." This Court in Badri Narain Jha v. Rameshwar Dayal Singh (1951 SCR 153) held that if a lessor purchases the whole of the lessee's interest, the lease is extinguished by merger, but there can be no merger or extinction where one of several joint holders of the mokarrari interest purchases portion of the lakhraj interest. It was held that when there was no coalescence of the interest of the lessor and the lessee in the whole of the estate, there could be no determination of the lease by merger. We do not think that it is necessary to multiply authorities in the face of the plain language of the provision and the authoritative

pronouncements of the Privy Council and of this Court referred to above. The position emerging from the relevant provision of the Transfer of Property Act is that the lease or tenancy does not get determined, by the tenant acquiring the rights of a co-owner landlord and a merger takes place and the lease gets determined only if the entire reversion or the entire rights of the landlord are purchased by the tenant."

"16. Fry, J. stated in Chambers v. Kingham, (1878) 10 Ch D 743, "I take the general rule to be, that where one of the interests is held en autre droit, no merger takes place." According to Black's Law Dictionary en autre droit means 'in the right of another'. The leasehold interest outstanding with the original lessee would be an interest held by that lessee in his own right standing in the way of merger."

12. Further more, the Supreme Court in the matter of (2022) 10 SCC

496 in between Karan Kapoor Vs. Madhuri Kumar reiterated the view

that it is a settled proposition of law that even if the consideration has

been exchanged the purchaser does not become the owner of the

property till the time the registered sale deed is executed in his favour and

landlord-tenant relationship cannot come to an end on the execution of the

agreement to sell.

13. The Supreme Court further in the case of Ramdas v. Sitabai &

ors. reported in AIR 2009 SC 2735 has held that without there being any

physical formal partition of an undivided landed property, a co-sharer

cannot put a vendee in possession although such a co-sharer may have a

right to transfer his undivided share and the right of the purchaser would

be to file a suit for partition.

14. In the instant case, the sale deed yet has not been executed but

the principle would govern as to the right of the co-sharer. Applying the

aforesaid principles, we are of the view that the judgement passed by the

Rent Control Authority and Tribunal do not call for any interference.

15. Accordingly, the petition is dismissed.

               Sd/-                                                  Sd/-

        (Goutam Bhaduri)                                     ( N.K. Chandravanshi)
              Judge                                                  Judge




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