Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. dismissed a second appeal filed against the order made in first appeal wherein it was held that the plaintiffs were not entitled to claim damages for wrongful possession of rented premises by the defendant.

The plaintiffs were owners of the subject property which was let out to Nizam Government which handed it over to Zila Parishad. In the year 1990, Zila Parishad terminated its own tenancy and directed its officials yo handover the possession of the property to plaintiffs. However, this direction was not complied with. It was also an admitted fact that plaintiffs did not take any step to recover the possession of the property and were now directly before the Court claim damages for wrongful possession by Zila Parishad.

Question before the Court was “Whether the landlord would be entitled for damages after termination of tenancy if he does not take any step for recovery of possession for more than 12 years after termination?”

The High Court referred to Chander Kali Bai v. Jagdish Singh Thakur, (1977) 4 SCC 402 wherein it was observed, “if a tenant continues in possession after termination of contractual tenancy, he would not be liable for damages till the decree for eviction is passed.” In the instant case, no decree for eviction was passed. The tenant Zila Parishad itself terminated the tenancy. In such case, the landlord plaintiffs were bound to file suit for possession. He could not directly file suit for damages for the amount not agreed under the contract. Furthermore, damages by way of mesne profits can be awarded under Order 20 Rule 12 only from the date of decree for possession for the period for which the possession is wrongfully retained in spite of the decree. In such view of the matter, the second appeal was dismissed. [Arvind v. State, 2018 SCC OnLine Bom 6069decided on 10-12-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Rajesh Kumar, J., dismissed a second appeal filed against the order of the trial court whereby a decree of eviction was passed against the appellants.

The respondents (landlords) had filed a suit for eviction against the appellants (tenants) because of personal reasons and also on account of non-payment of rent since November, 2012. The appellants contended that the landlord-tenant relationship between the parties came to an end after an agreement for sale was entered between the appellants and the father of the landlords.

The main question that arose before the Court was whether the trial court was justified in passing a decree of eviction against the appellants.

The Court observed that as per a conjoint reading of Section 53-A of the Transfer of Property Act and Section 17(1-A) of the Registration Act, it becomes clear that in order to protect possession over the land in dispute, the first compulsory requirement is that the agreement of sale must be registered. In this case, the agreement was not registered. Further, it was observed that as per Section 116 of the Indian Evidence Act, if the tenancy has been accepted then the tenant has no right to challenge the status of the landlord on any ground whatsoever.

The Court held that the appellant’s contention about the non-existence of landlord-tenant relationship between the parties is untenable. The Court upheld the order of the trial court as well as the first appellate court. [Devanand v. Sudhir Kumar Sharma,2018 SCC OnLine Jhar 1257, Order dated 12-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed an appeal filed under Section 96 of CPC  against the judgment of the trial court whereby appellant’s suit for possession and mesne profits was dismissed.

The suit was dismissed by the trial court holding that the appellant being only one of the co-owners, could not claim possession in absence of support from other co-owners. It was held that a  single landlord could not terminate the tenancy. Aggrieved thus, the appellant preferred the instant appeal.

The High Court relied on Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and Jagdish Dutt v. Dharam Pal, (1999) 3 SCC 644 to hold that one co-owner/co-landlord is not entitled on his own, in the face of opposition from other co-owners/co-landlords, to terminate the tenancy for seeking possession of the tenanted property and/or mesne profits. In the present case, the other co-owners had infact opposed the termination of tenancy as well as the suit filed by the appellant. Observing that the appeal was completely frivolous, the High Court held that the suit was rightly dismissed by the trial court. Therefore, the appeal was dismissed. [Navin Chander Anand v. Union Bank of India,2018 SCC OnLine Del 9902, 17-07-2018]

Case BriefsSupreme Court

Supreme Court: Explaining the rule of inference in matters relating to sub-tenancy or sub-letting, the bench RK Agrawal and Ashok Bhushan, JJ held that considering the fact that the process of sub-letting, the landlord is kept out of the scene and that the payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case.

The Bench explained that sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof and that this arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered.

The Court noticed that sub-letting arrangement is made at the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. It was further noticed that the payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically.

Hence, the Court held that in such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. It was further explained that the initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant. If the tenant is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration. [Prem Prakash v. Santosh Kumar Jain & sons, 2017 SCC OnLine SC 1018 , decided on 30.08.2017]

Case BriefsSupreme Court

Supreme Court: In a matter relating to eviction of the tenant, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ held that any female, if she is having a legal right of residence in the building, is entitled to seek eviction of the tenant from such building for her need.

In the case the landlady of a shop had asked the tenant to vacate the property on account that her daughter, who had a clinic adjacent to the concerned shop, wanted to expand her clinic as the area of the existing shop was inadequate to run a clinic. The Tenant, however, contended that the need of the appellant was not bona-fide as the appellant’s daughter was not a member of family as defined under Section 3(g) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 because she is a married daughter whereas Section 3(g)(iii) include only an “unmarried daughter”. The Allahabad High Court had overturned the ruling of the Prescribed Authority/Civil Judge and the first appellate court and had held that the daughter was not a family member under the Act.

The Court, rejected the said contention of the tenant and held that the inclusive part of the definition under Section 3(g) of the Act, which is enacted only for the benefit of “female” in relation to the landlord, adds one more category of person in addition to those specified in clauses (i) to (iii), namely, “any female having a legal right of residence in that building”. In other words, in order to claim the benefit of expression “family”, a female must have a “legal right of residence” in the building.

Considering the fact that appellant’s husband, the original owner of the property in question, died intestate and on his death, the appellant, two sons and four daughters inherited the estate left by Dr. Ahsan Ahmad, which included the building, the Court said that the appellant’s daughter was a family member under the Act and hence, the appellant’s need was bona-fide. [Gulshera Khanam v. Aftab Ahmad, 2016 SCC OnLine SC 1001, decided on 27.09.2016]