SHISHIR KUMAR,J. - (1.) THIS writ petition has been filed quashing the order dated 10.4.2009 (Annexure 11 to writ petition) and order dated 23.9.2009 (Annexure 14 to writ petition).
(2.) BRIEF facts arising out of writ petition are that respondent being landlord filed a suit which was numbered as P.A. Case No.4 of 2008 for release of the accommodation in dispute under Section 21(1)(a) of the Act No.13 of 1972. After receipt of notice, petitioner filed an objection stating therein that accommodation in dispute was initially in the form of an open piece of land let out to one Sri Allauddin and at this stage one Sri Dwarika Prasad was its owner. Sri Allauddin with the consent of Sri Dwarika Prasad sub-let the aforesaid accommodation to grandfather of petitioner namely Sri Munna Lal who had been paying rent to Sri Dwarika Prasad through Sri Allauddin @ Rs.12 per month. It has further been stated that Allauddin has collected rent from the predecessor of petitioner and he was not its real owner and rent was being collected on behalf of Dwarika Prasad. Sri Dwarika Prasad died leaving behind two daughters as his only heirs. It was stated that neither Sri Allauddin nor his successor including his son Gyasuddin were the owners of the accommodation in dispute nor they were entitled to execute any sale deed, therefore, sale deed dated 17.12.2004 through which respondent-landlord derives title is not legally and validly executed document and has not conferred any right and title on the respondent Sri Kamal Kishore. Further it was said that Sri Kamal Kishore was also gainfully engaged and did not need this disputed property for his house. It has also been denied by tenant- petitioner that he was not doing anything at the disputed place and he was running parchun shop from his house. In support of their pleadings, parties have filed their respective affidavits and brought on record various evidences. It has further been stated that when accommodation in dispute was let out, it was an open piece of land, therefore, the provision of Act No.13 of 1972 are not applicable to the accommodation in dispute. Further, respondent is not the owner of the accommodation in dispute, therefore, he is not entitled to get the property released in his favour. Petitioner has also brought on record the affidavits of Ramesh Chand Sharma dated 5.12.2008 and of Babu Lal Sharma dated 7.11.2008 who have supported the claim of petitioner. The entire accommodation in dispute is primarily an open piece of land. Apart whereof is covered by tin-shed supported on wooden pillars on two sides and only pakka construction is towards the front which is a wall to support a gate. It has further been stated that predecessor namely Smt. Afzal bibi claims herself to be the owner of the shop in dispute on the basis of judgement and decree dated 30.5.1988 passed in Original Suit No.38 of 1988. Petitioner coming to know regarding the aforesaid fact, the actual owner of the property has taken to the satisfaction by making an application for impleadment and has also filed a Suit No.134 of 2009 for cancellation of the judgement and decree dated 30.5.1988 as well as the sale deed dated 17.12.2004, therefore, Kamal Kishore, the respondent has got no title and interest in the property. The aforesaid application has not been decided instead it was kept pending an it was rejected on 10.4.2009 on the same date when the judgement was passed against petitioner releasing the accommodation in favour of respondent. Petitioner filed an appeal. In the meantime, during pendency of appeal, when proceeding for execution was initiated Sri Mahesh Chandra Singh has filed an objection under Order 21 Rule 97 stating there in that he was the owner of the shop in dispute and Smt. Afzal Bibi has got no transferable right and title in property in dispute. Therefore, the sale deed executed will not confer the right but Appellate Authority has dismissed the appeal vide its judgement and order dated 23.9.2009. Hence, the present writ petition.
(3.) SRI K.K.Arora, learned counsel for petitioner has raised various points and arguments to this effect that if there is any doubt or an objection has been raised that respondent is not landlord and in view of present facts and circumstances, once the application was filed by one Mahesh Chand Singh, who alleged himself to be owner of the property, therefore, by virtue of the sale deed executed by Smt. Afzal Bibi in favour of respondents, no right can be conferred upon respondent-landlord. Further, depositing rent under Section 30 of the Act cannot be inferred that petitioner has admitted the relationship as well as the landlord and owner of the property and he is estopped to raise this point before the Court. He has placed reliance upon the following judgements of the Apex Court. 1. (2005)7 Supreme Court Cases, 791 Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and another. 2. 2007 Judgement Today (1), Supreme Court 623 Official Trustee of West Bengal v. Stephen Court Ltd. "19. The Company's locus to maintain the application was not questioned. True and affidavit in opposition has been filed, but it is equally true that therein certain suggestions were made; one of them being enhancement in the quantum of rent. The High Court passed an order enhancing the quantum of rent, which was beneficial of the Official Trustee. It accepted the same without any demur. Benefit of the order was, thus, taken. It was only at its suggestion, a valuer was appointed. The recommendations of the valuer as regards the quantum of monthly rent which would be payable at the end of the period of lease was not questioned. The High Court also accepted the same. The order of the High Court dated 17.04.1984 must be judged in the aforementioned factual backdrop. The High Court for all intent and purport accepted the suggestions of the Official Trustee." 3. (1987) 4 Supreme Court Cases, 410 Richpal Singh and others Vs. Dalip "9. Our attention was drawn by Sree Harbans Lal, learned counsel appearing for the appellants to S. 98 of the Act, as to the power of the Revenue Court to refer to the Civil Court a decision by the Revenue Court if it thought proper and also to S. 99, where there is power to refer to High Court question as to jurisdiction. These provisions, in our opinion, do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases like the present. The limits of the jurisdiction would be apparent by the fact that in all suits by a landlord to eject a tenant, do not encompass suits to decide whether a person is a tenant or not or whether the plaintiff is a landlord or not. The question was answered by this Court in Om Prakash Gupta v. Rattan Singh (1964) 1 SCR 259 where Sinha, C.J. dealing with the Delhi Rent Control Act observed at pages 264 and 265 as follows : "The most important question that arises for determination in this case is whether or not the Rent Control authorities had jurisdiction in the matter in controversy in this case. Ordinarily it is for the Civil Courts to determine whether and, if so, what jural relationship exists between the litigating parties. But the Act has been enacted to provide for the control of rents and evictions of tenants, avowedly for their benefit and, protection. The Act postulates the relationship of landlord and tenant which must be a pre-existing relationship. The Act is directed to control some of the termination incidents of that relationship. Hence there is no express provision in the Act empowering the Controller, or the Tribunal, to determine whether or not there is a relationship of landlord and tenant. In most cases such a question would not arise for determination by the authorities under the Act. A landlord must be very ill-advised to start proceedings under the Act, if there is no such relationship of landlord and tenant. If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the Civil Courts, untrammelled by the provisions of the Act. It is only when he happens to be the tenant of premises in an urban area that the provisions of the Act are attracted." 16. In that view of the matter, we are of the opinion that the High Court of Punjab and Haryana was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned. The appeals must, therefore, fail and are accordingly dismissed with costs." ;