Tag Archives: tenant

One Co-Owner – Can Maintain An Action for Eviction

One co-owner, in the absence of any objection from the other co-owners, can maintain an action for eviction against a tenant, without impleading all the co-owners. The governing principle is the doctrine of agency. When one co-owner institutes a suit for eviction against the tenant, it is construed as the suit having been instituted in his own right and also as an agent of the other co-owners. What is of importance is the jural-relationship of the landlord and tenant. Once a co-owner satisfies the description of the landlord, the fact that the other co-owners have not joined in action pales in significance and does not affect the maintainability of the suit. Of course, different considerations come into play when existence of a dispute between the co-owners as regards the institution of the very action of eviction, is brought to the notice of the Court.

A reference in this context can be made to a decision of the Hon’ble Supreme Court in the case of Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724, wherein it was held as under:

This question now stands concluded by a decision of this Court in India Umbrella Manufacturing Cov. Bhagabandei Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.), (2004) 3 SCC 178,wherein the Hon’ble Court opined:

 It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (See Sri. Ram Pasricha v. Jagannath, (1976) 4 SCC 184 and Dhannalal v. Kalawatibai, (2002) 6 SCC 16.This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law.”

A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co-owner to show before initiating the eviction proceeding before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein.

 This aspect was again considered by the Hon’ble Supreme Court in the case of Boorugu Mahadev and Sons v. Sirigiri Narasing Rao, (2016) 3 SCC 343, in the context of the proceedings between a landlord and tenant, governed by the rent control legislation. The Supreme Court enunciated that the concept of ownership and consequently the right to sue, in such cases, has to be distinguished from the one in a title suit. The observations in the said judgment are extracted below:

 It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (vide Sheela v. Firm Prahlad Rai Prem Prakash(2002) 3 SCC 375).” Madhuri Doulatram Choitram v. Lachmandas Tulsiram Nayar, 2019 SCC Online Bom 6111.

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“Tenant at Sufferance”

        ‘Tenant at sufferance’ is one who comes into possession of land by lawful title, but who holds it by wrong after termination of term or expiry of lease by efflux of time. The tenant at sufferance is on who wrongfully continues in possession after extinction of a lawful title. There is little difference between him and a trespasser. A “tenancy at sufferance” does not create relationship of landlord and tenant.

        Moreover, even possession of lessee after determination of lease or expiry of period of lease becomes that of “Tenant at Sufferance”, therefore, even a quit notice is not necessary to be given and Section 106, Transfer of Property Act, 1882 is not at all attracted. Relying on earlier decision in R.V. Bhupal Prasad v. State of A.P., (1995) 5 SCC 698, the Hon’ble Apex Court in Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Company Ltd., AIR 2019 SC 2664 held that once it is admitted by lessee that term of lease has expired, lease stood determined by efflux of time and in such a case, a quit notice under Section 106 of the Transfer of Property is not required to be given. It was held as under:

        “Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106.” Lov Mandeshwari Saran Singh v. State of U.P., 2020 (138) ALR 845.

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Building in Possession of Tenant – Before its Purchase by Landlord

The first proviso to Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides that where the building was in occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of the Act, no application shall be entertained on the grounds, mentioned in Clause (a), unless a period of 3 years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years. Smt. Meena Begum v. Additional District Judge, 2018 (127) ALR 358.

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Statutory Tenant

 In Gian Devi Anand v. Jeevan Kumar, (1985) 2 SCC 683, a Constitution Bench of the Hon’ble Supreme Court dealt with the question – whether the rule of heritability extends to a statutory tenancy of commercial premises as much as it did to residential premises under the Delhi Rent Control Act, 1958. The Court while holding this in the affirmative discussed the concept of statutory tenant and held thus:

“”Statutory tenant” is not an expression to be found in any provision of the Delhi Rent Control Act, 1958 or the rent control legislation of any other State. It is an expression coined by the Judges in England and, like many other concepts in English law, it has been imported into the jurisprudence of this country and has become an expression of common use to denote a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. Though the expression “statutory tenant” has not been used in any rent control legislation the concept of statutory tenant finds recognition in almost every rent control legislation.…

It is also important to note that notwithstanding the termination of the contractual tenancy by the landlord, the tenant is afforded protection against eviction and is permitted to continue to remain in possession even after the termination of the contractual tenancy by the Act in question and invariably by all the Rent Acts in force in various States so long as an order or decree for eviction against the tenant on any of the grounds specified in such Acts on the basis of which an order or decree for eviction against the tenant can be passed, is not passed.

The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary.”

         In Krishna Prosad Bose v. Sarajubala Dassi , AIR 1961 Cal 505, it was held as under:   “The Rent Control and the Tenancy Acts create a special world of their own. They speak of life after death. The statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy. The contractual tenant may die but the statutory tenant may live long thereafter. The statutory tenant is an ex-tenant and yet he is a tenant.” R.S. Grewal v. Chander Parkash Soni, (2019) 6 SCC 216.

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SARFAESI Act – Rights of a Rightful Tenant

If a valid tenancy under law is in existence even prior to the creation of the mortgage, the tenant’s possession cannot be disturbed by the secured creditor by taking possession of the property. The lease has to be determined in accordance with Section 111 of the Transfer of Property Act for determination of leases. As the existence of a prior existing lease inevitably affects the risk undertaken by the bank while providing the loan, it is expected of banks/creditors to have conducted a standard due diligence in this regard. Where the bank has proceeded to accept such a property as mortgage, it will be presumed that it has consented to the risk that comes as a consequence of the existing tenancy. In such a situation, the rights of a rightful tenant cannot be compromised under the SARFAESI Act proceedings. Bajrang Shyamsunder Agarwal v. Central Bank of India, (2019) 9 SCC 94.

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Roof – Not a Necessary and Indispensable Adjunct for a Building

From a bare perusal of the definition of “building” in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, it is clear that unless the context otherwise requires, “building” means a residential or non-residential roofed structure and includes any land (including any garden), garages and out houses, appurtenant to such building; any furniture supplied by the landlord for use in such building and any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof. As held by the Hon’ble Supreme Court in Ashok Kapil v. Sana Ullah, (1996) 6 SCC 342 a structure or edifice enclosing a space within its walls and usually but not necessarily, covered with a roof is a building. Roof is not necessary and indispensable adjunct for a building because there can be roofless buildings. The “building” as defined in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, is a residential or non-residential roofed structure and includes any land (including any garden), garages and out-houses, appurtenant to such building. Therefore, an open land including any garden, garages and out-houses, appurtenant to a roofed structure for its beneficial enjoyment shall be a building within the meaning of Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Munnu Yadavi v. Ram Kumar Yadav, 2020 (138) ALR 70.   

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Lawful Possession

Possession may be lawful, it may be unlawful. It may be legal or illegal. The acquisition of legal possession would obviously be lawful and would of necessity involve the occurrence of some event recognized by law whereby the subject matter falls under the control of the possessor. But a problem arises where the duration for which possession is recognized is limited by the grantor or the law. Continuance of possession beyond the period specified by the grantor or recognized by law is not treated as a lawful possession. For example, a tenant acquires legal as well as lawful possession of the tenanted premises from the landlord with the express consent of the landlord but limited to the duration of the lease. On expiry of the leaser, if the landlord does not consent to the lease being continued, the possession of such tenant would not be a lawful possession. The nature of possession being not lawful would entitle the landlord to regain possession.

        From a common sense point of view, lawful possession must be the state of being a possessor in the eyes of law. The possession must be warranted or authorized by law; having the qualifications prescribed by law and not contrary to nor forbidden by law. Sawwad Ali v. Rajesh Kumar, 2019 (135) ALR 927.

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Second Notice – A New Tenancy Cannot be Inferred

In Sarup Singh Gupta v. S. Jagdish Singh, (2006) 4 SCC 205, it was held as under:

       “In the instant case, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. Mere acceptance of rent did not by itself constitute an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended.”

       In the Judgment rendered by Orissa High Court in Bhagabat Patnaik v. Madhusudan Panda, AIR 1965 Ori 11, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the landlord and the tenant both, the question as to whether such facts and circumstances of the case. An English Authority in Lawenthanfal v. Banhoute, 1947 (1) ALL ER 116, was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that a “subsequent notice to quit is of no effect.” It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.

       The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. It was further held thus:

       “Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after expiration of the first.” Praveen Kumar Jain v. Jagdish Prasad Gupta, 2019 (132) ALR 357.

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Uttar Pradesh Rent Control Act – Definition of Family

Perusal of Section 3 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 would go to show that family in relation to landlord or tenant of a building would include: (1) spouse, (2) male lineal descendants, (3) such parents, grandparents, unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been residing with the landlord. The definition further says “family” includes in relation to landlord, any female having a legal right of residence in that building.

The inclusive part of the definition, which is enacted only for the benefit of “female” in relation to the landlord, adds one or 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”.

A fortiori, any female, if she is having a legal right of residence in the building, is also included in the definition of “family” in relation to landlord regardless of the fact whether she is married or not. In other words, in order to claim the benefit of the expression “family”, a female must have a “legal right of residence” in the building. Such female would then be entitled to seek eviction of the tenant from such building for her need. Gulshera Khanam v. Aftab Ahmad, (2016) 9 SCC 414.

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Concept of Ownership

The concept of ownership in a landlord-tenant litigation governed by rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in Landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. Boorugu Mahadev and Sons v. Sirigiri Narasing Rao, (2016) 3 SCC 343.

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