Hira Lal vs Padam Singh Jain & Co. And Ors.
1988 Latest Caselaw 290 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This second appeal filed by the tenant is directed against the order of the Rent Control Tribunal, Delhi dated 28th February 1984 whereby the appeal filed by the Respondent No. I-landlord was allowed.

(2) The brief facts relevant for determination of the appeal are as follows: Premises bearing No. 5292-5295 at No. 40 Shardanand Marg, Delhi originally belonged to one Shri Ram Dev. On 20th August 1953 the property was gifted to one Shri Sushil Kumar Bhutani by way of a gift deed. Shri Sushil Kumar Bhutani, therefore became the owner. The present landlord i.e. respondent No. I herein purchased the property from Shri Sushil Kumar Bhutani on 14th April 1964. One Mst. Raj Kanwar was the tenant in respect of three rooms, Kitchen bath and latrine on the second floor in the said property at the monthly rent of Rs. 33.00 Mst. Raj Kanwar continued to pay rent to respondent No. I from 14th May 1964 to 31st March .1965, however thereafter in May 1965 Mst. Raj Kanwar left Delhi for her home town where she is stated to have died Respondent No. I-landlord came to know about the death of Mst. Raj Kanwar in August 1968 and, therefore, in October 1968 he moved a petition for eviction of the present appellant and respondents 2 to 5 alleging that they have no right to stay in the premises because they had no tenancy right. That petition was however dismissed as not maintainable under the Delhi Rent Control Act because no relationship of landlord and tenant was alleged. Respondent No. I filed an appeal which was also dismissed on 18th November 1972. The respondents-landlord, therefore , accepted the appellant as legal heir of Mst. Raj Kanwar and made a demand for rent from the appellant on 1st August 1975. The appellant failed to deposit the rent inspite of the demand. The respondent No. I therefore filed an eviction petition before the Additional Rent Controller under Section 14(l)(a) for non-payment of rent as well as under Section 14(l)(b) on the ground of unlawful sub-letting alleging that 2/3 years before her death Mst. Raj Kanwar sub-let, assigned and parted with possession of two rooms, kitchen and bath in favor of respondents 2 to 5 without the consent of the respondent-landlord or the previous owner. The Additional Rent Controller by his order dated 20th September 1983 dismissed the eviction petition under Section 14(l)(b) however made composite order under Sections 15(1) and 14(l)(a) of the Delhi Rent Control Act. Respondent No. I, therefore, filed an appeal challenging the order of Additional Rent Controller before the Rant Central Tribunal. The ground of non payment of rent under Section 14(l)(a) of the Act was not pressed but findings of the Controller on the question of sub-letting were seriously assailed. By the impugned order, the Rent Control Tribunal allowed the appeal and ordered eviction of the appellant. It is this order of the Rent Control Tribunal which has been challenged by the appellant in this second appeal.

(3) It was not disputed by the appellants that the premises were sublet to respondents 2 to 5 but it was contended that the sub-tenancy in favor of respondents 2to 5 was created in the year 1947 and, therefore, under the Delhi Rent Control Act these sub-tenants were protected. In the alternative, it was contended that since respondent No. I had purchased the property in April 1964 and the alleged sub-tenancy was created before he had purchased the property even if it is found that the sub-tenancy was created after 1952, respondent No. I could not seek eviction on the ground of breach committed before he purchased the property. He relied on the judgment of the Punjab & Haryana High Court in Gugan Mal and others v. M/s. Megi Lal Chund Mal, 1962 Punjab Law Report, P. 372.

(4) The short question, therefore, to be determined first is whether respondents 2 to 5 were lawful sub-tenants inducted before 9th June 1952. The case of the appellant is that respondents 2 to 5 were inducted in the years 1947 by Shri Sushil Kumar Bhutani. It is not disputed that respondents 2 to 5 are sub-tenants and they were not inducted by the original landlord but were inducted by Mst. Raj Kanwar. I find that the Additional Rent Controller has relied on the voters list of 1947 which showed the name of respondent No. 2 to come to the conclusion, that the respondent No. 2 to 5 were inducted as sub-tenants in the year 1947 and were thus protected. The Rent Control Tribunal has however observed that since as per the appellant's own case in his written statement the sub-tenants were inducted after obtaining the consent of the then landlord Shri Sushil Kumar Bhutani who became the owner of the property only on 24th August 1953, the sub-tenancy could not have been created before 9th June 1952 stands falsified. The Rent Control Tribunal further observed that the case of the appellant that respondents 3 and 4 were inducted by the landlord in the year 1947 also cannot be believed because in 1947 these respondents were infants and they could not have been inducted as sub-tenants.

(5) I have gone through the evidence of RW5 and also perused the documents on record. In my opinion, the finding that the premises were sub-let after 1952 is based on cogent evidence and I find no error in the reasoning of the Rent Control Tribunal. The inclusion of respondent no. 2 in the electoral roll does not in any manner change the position because present in the premises at that time but does not prove in what capacity he was there.

(6) Now coming to the next contention of the learned counsel for the appellant. It is not disputed by respondent no. I that the sub-tenancy was created before respondent no. I purchased the property and the breach was committed when Shri Sushil Kumar Bhutani was the owner and landlord . Under Section 109 of the Transfer of Property Act, the transferee in the absence of a contract to the contrary would possess all the rights of the 334 Lesser. Thus, if a Lesser transfers a leased property and prior to. the date of transfer, the lessee had committed breach of the lease agreement and right to recover possession has accrued to the Lesser before the transfer, then his transferee can recover possession. In other words, if the unlawful sub-letting takes place before the transfer, the transferee who is the new owner/landlord can take advantage of the breach and ask for possession from the lessee. I find support for this proposition from a Full Bench judgment of the Gujarat High Court in Champaklal Dahayabhai Netaji v. Smt. Saraswatiben, 1977(1) R.C.J. 664. In fact the Punjab High Court in Pritam Singh Jiwan Singh and others v. Raja Ram Kalu Ram and another', A.I.R. 1964, Punjab 363 has also held that illegal sub-letting which took place prior to the transfer could be availed of by the transferee to evict the tenant. A similar . - view is expressed by Madras High Court in Mamkkam Pillai v. Rathnasami Nadar and others A.I.R. 1919 Madras, 1186, Andhra Pradesh High Court in Satyanarayan v. Sindhu Bai Sharma', and Rajasthan High Court in Naraindas v. Rajindra Singh, 1972 R.C.J., P. 607.

(7) There is nothing on record to indicate that Sushil Kanwar Bhutani bad consented to the sub-letting or that the respondent No. I had agreed to accept respondents 2 to 5 as tenants. In my opinion, therefore, Respondent No. I could seek eviction of the appellant on the ground of unlawful sub-letting even though the premises sub-let to respondents 2 to 5 before Respondent No. I purchased the property and became the owner/ landlord.

(8) The second appeal is therefore without any merit and is dismissed. No costs.