Can a tenants and the sub-tenants inducted by them can claim ownership of the property
December 8, 2017
A Bench of Justice Kurian Joseph and Justice Banumathi passed judgment in an appeal filed by the Plaintiff/ Landlord against claim of tenant, sub tenant inducted by them for the ownership of property.
Facts of the case are that the suit property No.37(old), 17 and 18 (new numbers) situated at Beli Bazar, Meerut was let out by the original plaintiff/landlord (Nazar Mohammad Zaidi) to the original defendants (Abdul Qayuum and Hazi Anvaruul Haq) by way of registered rent agreement dated 12.08.1968 for a period of ten years at the rent of Rs.750/- per month. There was a specific term in the rent agreement which envisaged renewal of the rent agreement by execution of a separate registered agreement for a further period of five years at enhanced rent from Rs.750/- to Rs.800/- per month.
After expiry of the original term of lease, landlord (Nazar Mohammad Zaidi)
filed ejectment suit in SCC Suit No. 2 of 1981 for eviction of
defendants/tenants inter alia on the pleas:- (i) that the period of lease has
expired; the defendants/tenants have failed to get the fresh lease deed executed
at the enhanced rent of Rs.800/- per month; (ii) the defendants/tenants have put
up construction of shops in the suit premises and let out the same to third
party in violation of the terms of the rent agreement; and (iii) default in
payment of rent and municipal tax by the defendants.
Respondents-tenants contested the suit stating that they have taken every
possible step to get the lease deed renewed for a further period of five years
and also sent the rent @ Rs.800/- per month as per the terms of the lease deed
dated 12.08.1968 to the original plaintiff who refused to receive the same. The
tenants further pleaded that the entire arrears of rent, damages along with
interest etc. have been deposited in the court under Section 20(4) of the Uttar
Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
(for short 'U.P. Act 13 of 1972') and the suit for eviction is liable to be
dismissed.
Upon consideration of the pleadings and evidence, the trial court framed eleven
issues and dismissed the suit on the ground that the plaintiff/landlord has not
been able to establish any of the grounds for eviction specified under Section
20 of the U.P. Act 13 of 1972. Insofar as the issue of construction by
defendants/tenants allegedly in violation of terms of rent agreement was
concerned, the trial court held that the construction was in consonance with the
terms of the rent agreement and there was nothing in the rent agreement which
restricted the right of defendants/tenants to raise construction in the
premises. So far as non-renewal of the rent agreement is concerned, the trial
court held that there was reluctance on the part of the plaintiff/landlord to
renew the rent agreement. The trial court further held that there was no default
in payment of rent and the tenants continued paying the rent even after lapse of
lease period at the enhanced rate of rent. Being aggrieved, the
plaintiff/landlord approached the High Court by way of revision and the same
came to be dismissed by the impugned order.
The question falling for consideration is whether after expiry of the lease
period and the determination of the tenancy whether the respondents-tenants can
continue in possession of the suit property, when the lease was not renewed?
The trial court was of the view that there was no violation of the terms of the
lease deed as they had put in sufficient efforts in getting the rent agreement
renewed. The trial court did not keep in view the denial of the
appellant-landlord regarding issuance of notice. In the light of denial of
issuance of notice, it was necessary to adduce evidence to prove that notice was
actually issued on instructions by the landlord. The burden was upon the
respondents-tenants to prove that the said notice was issued by advocate Gulzar
Mohd. on the instructions of the landlord. The trial court pointed out that the
respondents-tenants had taken steps to examine the said advocate; but he had not
appeared before the court.
From the materials on record, it is not known as to what steps were taken by the
tenants to examine the said advocate Gulzar Mohd. The trial court, in our view,
could have very well exercised its power under Order XVI Rule 14 CPC and
summoned the said advocate as witness. In the absence of examination of the said
advocate Gulzar Mohd., the trial court ought not to have placed reliance upon
notice alleged to have been issued on the instructions of the landlord.
The bench said that "The term in the lease agreement for renewal of lease
deed does not ipso facto extend the tenure or term of the lease. So far as the
clause for renewal in the lease deed is concerned, it was held in Delhi
Development Authority v. Durga Chand Kaushish (1973) 2 SCC 825 that such
covenant only entitled a lessee to obtain a fresh lease in accordance with and
in due satisfaction of the law governing the making of leases. In the absence of
renewal of rent agreement, in our considered view, the possession of the
respondents-tenants in the demised premises has become unlawful and they are
liable to be evicted."
The Bench also said that:
"Yet another ground for eviction is construction of shops in the suit
premises by the tenants and sub-letting the same in violation of terms of rent
agreement."
Though, there is a clause in the rent agreement enabling the tenants to put up
construction, there is no clause in the lease agreement permitting the tenants
to transfer his interest of tenancy to third party It is the case of the
appellant that in violation of the rent agreement, Anwar Ul Haq who was one of
the original tenants, transferred his interest of tenancy in favour of third
respondent Mohd. Ilyas alias Chaman. The appellant-landlord specifically denied
that such transfer of interest in the tenancy was with the consent of the
original landlord.
On those issues, the courts below recorded findings that the rent agreement
nowhere prohibited any of the tenants from transferring their interest in
tenancy and therefore, there was no violation of any of the terms of the rent
agreement. In noting so, the trial court lost sight of the fact that in the rent
agreement, parties specifically incorporated clause (9), permitting sub-letting
by tenants. Had the parties agreed to create or transfer of interest in the
tenancy in favour of third party, they would have added a specific term in that
regard in the rent agreement.
The court also observed that:
"The courts below did not properly appreciate that after service of eviction notice on 09.04.1979 continuance of respondents' possession in the demised premises had become illegal. The High Court did not appreciate that the respondents have sub-let the property to third party and are earning huge profits by simply paying a meager rent of Rs.800/- per month. The respondents-tenants cannot squat on the property and make a profit for themselves at the cost of the appellant-landlord and the judgment of the High Court cannot be sustained."
The court allowed the appeal with the following direction:
"In the result, the impugned judgment is set aside and this appeal is
allowed. The respondents-tenants and the sub-tenants inducted by them and any
other person claiming through them are directed to hand over vacant possession
of the suit premises within a period of one year from today, failing which the
respondents-tenants and their sub-tenants or other persons claiming through them
shall be liable for contempt of Court in addition to other proceedings. No order
as to costs."
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Read the Judgment of Supreme Court dated 07.12.2017