KAMALJIT SINGH vs. SARABJIT SINGH

Full Judgment Text

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8410 OF 2014 (Arising out of S.L.P. (C) No.19532 of 2011) Kamaljit Singh …Appellant Vs. Sarabjit Singh …Respondent J U D G M E N T T.S. THAKUR, J. 1. Leave granted.

2.		This appeal arises out of an order dated 9	th	July, 2010

passed by the High Court of Punjab and Haryana at Chandigarh whereby Civil Revision Petition No.580 of 2005

filed by the appellant has been dismissed and order dated 5	th

November, 2004 passed by the Rent Controller, Phagwara, dismissing a petition under Section 13-B of the East Punjab Urban Land Restriction Act, 1949 upheld. 1 Page 1

3.		The suit premises comprise a shop in a

No.XVI/258/1 situate at Banga Road, Phagwara. It was let out to the respondent-tenant by the appellant who was born

and brought up in India but ha	ving spent over 30 years in

U.K. has returned in the year 2000 with the intention to

settle down and establish a hotel at Phagwara his home

town. An eviction petition under Section 13-B of the East

Punjab Urban Land Restriction Act, 1949 was filed by the

appellant on the ground that as a Non Resident Indian in
need of the shop for his own u	se, he was entitled to have
	ondent-tenant.
the same vacated from the resp	ondent-tenant.

4. The eviction petition was	contested by the respondent

on several grounds including the ground that the appellant

was not a NRI and that the eviction petition was barred by JUDGMENT the provisions of Order 2 Rule 2 CPC. It was also contended by the respondent-tenant that although he was a tenant in occupation of the premises under the appellant, the sale- deeds relied upon by the respondent did not relate to the

land underlying the shop in question.
5.		By an order dated 5th	November, 2004, the Rent

Controller dismissed the eviction petition filed by the 2 Page 2 appellant holding that the appellant had failed to prove his ownership over the demised premises for a period of five years before the filing of the eviction petition. The Rent

Controller held that the de	position of the witnesses

appearing on behalf of the appellant did not satisfactorily

prove that the building comprising the shops one of which

happened to be the suit shop was constructed on the land

purchased by the appellant in terms of the two sale-deeds

set up by him. The Rent Controller was of the view that
although the sale-deeds in ques	tion had been proved by the

appellant, he had failed to co-	relate the same to the suit

shop or other shops over which	he claimed ownership. The

Rent Controller, therefore, dismissed the eviction petition no

matter the appellant's case that he was an NRI and had JUDGMENT returned home to set up his own business was accepted.

6.		Aggrieved by the judgment and order passed by the

Rent Controller, the appellant filed revision petition No.580 of 2005 before the High Court of Punjab and Haryana at Chandigarh. An application for permission to lead additional evidence filed by the appellant in the said revision petition to 3 Page 3 establish that the sale-deeds proved by the appellant at the trial, indeed related to the land comprising the shop in dispute was dismissed by the High Court by its order dated

9	th	July, 2010 and so also the	revision petition. The High

Court concurred with the view that the appellant had failed

to prove that he was the owner of the suit shop for more

than five years prior to the filing of the petition, a condition

essential for invoking the provisions of Section 13-B of the

Act. The High Court also held that the additional evidence
sought to be adduced was very			much within the knowledge

of the appellant and could have			been adduced by him if only

he was diligent in doing so. Ad			ditional evidence, could not,

observed the High Court, be allowed to fill up the lacunae in

the appellants’ case.

7.		Section 13-B of the East Punjab Urban Land Restriction

Act, 1949 reads as under: “ 13-B. Right to recover immediate possession of residential building or scheduled and/or non-residential building to accrue to Non- resident Indian – (1) Where an owner is a Non- Resident Indian and returns to India and the residential building or scheduled building and/or non-residential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with and dependent on him or her, he or she, may apply to 4 Page 4 the Controller for immediate possession of such building or buildings, as the case may be: Provided that a right to apply in respect of such a building under this section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. (2) Where the owner referred to in sub-section (1), has let out more than one residential building or scheduled building and/or non-residential building, it shall be open to him or her to make an application under that sub-section in respect of only one residential building or one scheduled building and/or one non-residential building, each chosen by him or her; (3) Where an owner recovers possession of a building under this section, he or she shall not transfer it through sale or any other means or let it out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly.”

8.		A careful reading of the above would show that the

same entitles a Non-Resident Indian who returns to India to demand eviction of any residential or non-residential building, as the case may be, let out by him or her, if the same is required by such non-resident Indian for his or her use or for the use of any one ordinarily living and dependant on him or her. In terms of the proviso, however, the right to seek eviction of the tenant is available only after a period of 5 Page 5 five years from the date of such Non-Resident Indian becoming owner of any such building. It is further subject to the condition that any such right shall be available to a Non-

Resident Indian owner of the p		remises only once during his
life time.
9.	In terms of sub-section (2) the Non-Resident Indian

owner of the demised premises is entitled to apply for

eviction from only one residential or one scheduled building

or one non-residential building chosen by him or her. Sub-
section (3) postulates that if th		e owner recovers possession

of the building under Section 1		3-B but transfers it through

sale or any other means or le		ts the same out before the

expiry of a period of five years from the date of taking

possession of the said building, the evicted tenant may JUDGMENT apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly. There is, therefore, no gainsaying that Section 13-B is a code by itself for the special category of cases where the landlord happens to be a non-resident Indian who returns to India and needs 6 Page 6 the demised premises for his or her own use or for the use of anyone ordinarily living with and dependant on him or her. The only limitation on the exercise of the right vested

under Section 13-B (supra) is		that the NRI owner must

apply for eviction of the tenant only after a period of five

years from the date he becomes the owner of such a

building and that any such right shall be exercisable by him

only once during his life time and in respect of one of the

several buildings that he may be owning. The short question
that arises in the above backd		rop is whether the appellant
		ns in the case at hand.
had satisfied the above conditio		ns in the case at hand.

10.	In support of his claim	of ownership over the suit

premises, the appellant places reliance upon two sale-deeds

one dated 10	th	April, 1985 and the other dated 19	th	April,

1985. These sale-deeds have been satisfactorily proved and accepted at the trial before the Rent Controller. The findings recorded by the Rent Controller to that effect are clear and specific. What is according to the Rent Controller and the High Court, not established is that the sale-deeds relied upon by the appellant relate to the land underlying the 7 Page 7 shops. That view is not, in our opinion, sound. The reasons are not far to seek. The appellant has, in para 1 of the amended eviction petition, made a specific averment to the

effect that the appellant is the o	wner of the building bearing

No.XVI/258/1, situate at Banga Road, Phagwara, comprising

15 shops and open courtyard, as described in the plan

attached with the eviction petition. In reply, the respondent-

tenant has denied the ownership of the appellant over the

shop in dispute. It is also denied that there are 15 shops in
the building in dispute. It is,	however, admitted by the

respondent that 6 out of the sev	eral shops that comprise the

building, are in the possessio	n of the appellant-landlord

while the remaining are in possession of the tenants each

one of them having a separate provision for ingress and JUDGMENT egress. More importantly, the appellant has in para 2 asserted that the respondent is a tenant in shop no.4 under the appellant since the same was demised in 1989 on a monthly rent of Rs.400/-. The respondent in reply to the said averment admits that he is in occupation of the shop in dispute but denies that his possession relates back to the year 1989. The respondent’s case is that he is in possession 8 Page 8 of the suit shop since the year 1992 only. Para 2 of the reply to the eviction petition reads:

“2. That para no.2 of the application is correct only<br>to the extent that the respondent is in possession of<br>the shop in dispute. The rest of the para is wrong<br>and incorrect. The respondent is in possession of<br>the shop in dispute since 1992 not from 1989, the<br>answering respondents is not the subletee of the<br>shop in dispute. The respondent took the shop in<br>dispute on rent and since the day of creation of<br>tenancy the respondent works in the shop in<br>dispute.”
11.	It is evident from the above that the respondent does

not dispute either the jural relationship of landlord and

tenant between the parties o		r the rate of rent settled
between them. All that the res		pondent has asserted is that

he has been in possession of t		he shop since the year 1992

and not since 1989 as asserted by the appellant. It is also

	“	2. That para no.2 of the application is correct only
to the extent that the respondent is in possession of
the shop in dispute. The rest of the para is wrong
and incorrect. The respondent is in possession of
the shop in dispute since 1992 not from 1989, the
answering respondents is not the subletee of the
shop in dispute. The respondent took the shop in
dispute on rent and since the day of creation of
tenancy the respondent works in the shop in
dispute.”

not the case of the respondent that he is the owner of the JUDGMENT suit shop or that he had taken the same on rent from anyone other than the appellant. Such being the position, the question is whether the respondent can dispute the title of the appellant over the shop assuming that he was let in possession by the appellant in the year 1992 as asserted by him and not in the year 1989. Our answer is in the negative. We say so because once the respondent admits that he has 9 Page 9 been let in possession as a tenant by the appellant in the year 1992 i.e. more than 10 years before the filing of the eviction Petition, the requirement of appellant being owner

of the property for more than fi	ve years within the meaning

of Section 13-B (supra) would stand satisfied. The

respondent would then be estopped from denying the title of

the appellant during the continuance of the benefit that he is

drawing under the transaction, between him and the

appellant. It is trite that the doctrine of estoppel is steeped
in the principles of equity and	good conscience. Equity will

not allow a person to say one	thing at one time and the

opposite of it another time.	It would estop him from

denying his previous assertion, act, conduct or

representation to say something contrary to what was JUDGMENT implied in the transaction under which he obtained the benefit of being let in possession of the property to be enjoyed by him as a tenant.

12.		Lord Edward Coke,		Chief Justice of the Kings Bench and

17	th	Century English Jurist explains estoppel thus:

“	Cometh of the French Word ‘estoupe’, from where
the English word stopped; and it is called an

10 Page 10

estoppels or conclusion, because a man’s own act or
acceptance stoppeth or closet up his mouth to allege
or plead the truth.” [Co. Litt. 352a]

Law Lexicon		(Second Edition, Page 656) defines

estoppel in the following words:<br>“An Estoppel is an admission, or something which<br>the law treats as an equivalent to an admission, of<br>so high and conclusive a nature that any one who is<br>affected by it is not permitted to contradict it.” [11th<br>Edn p. 744 in the note to the Dutchess of Kingston’s<br>case]<br>“An admission or determination under circumstances<br>of such solemnity that the law will not allow the fact<br>so admitted to be questioned by the parties or their<br>privies.”<br>“The preclusion of a person from asserting a fact, by<br>previous conduct inconsistent therewith, on his own<br>part, or on the part of those under whom he claims.”
14.	Black’s Law Dictionary (9t	h Edn., page 629) describes
Estoppel as :
Estoppel as :

e	stoppel	in the following words:

“	An Estoppel is an admission, or something which
the law treats as an equivalent to an admission, of
so high and conclusive a nature that any one who is
affected by it is not permitted to contradict it.” [11		th
Edn p. 744 in the note to the Dutchess of Kingston’s
case]

“	An admission or determination under circumstances
of such solemnity that the law will not allow the fact
so admitted to be questioned by the parties or their<br>privies.”

previous conduct inconsi	stent therewith, on his own
part, or on the part of tho	se under whom he claims.”

“	JUDGMENT<br>A bar that prevents one from asserting a claim or
right that contradicts what one has said or done
before or what has been legally established as true.”

15. Section 116 of the Evidence Act deals with estoppel against tenants and of licensees or persons in possession. Estoppel under this provision falls in the category of estoppel by contract and is relatively a recent development. The rule embodied in Section 116 simply prevents the tenant in 11 Page 11 occupation of the premises from denying the title of the landlord who let him into possession, just as it applies to a mortgagor or a mortgagee, vendor or a vendee, bailer or a

a licens	ee. The

his landlord was stated by Jessel. M.R. in Re: Stringer’s Estate, LR Ch 9 as under: “Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord’s title. This is perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well-established doctrine. That is estoppel by contract.” 16. There is considerable authority for the proposition both JUDGMENT in India as well as in U.K. that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question latter’s title to the property. Section 116 clearly lends itself to that interpretation when it says: 12 Page 12

“116. Estoppel of tenant; and of licensee of person<br>in possession.—No tenant of immovable property, or<br>person claiming through such tenant, shall, during<br>the continuance of the tenancy, be permitted to<br>deny that the landlord of such tenant had, at the<br>beginning of the tenancy, a title to such immovable<br>property; and no person who came upon any<br>immovable property by the licence of the person in<br>possession thereof, shall be permitted to deny that<br>such person had a title to such possession at the<br>time when such licence was given.”
17.	A three-Judge of this Court in		Sri Ram Pasricha v.

Jagannath and Ors. (1976) 4 SCC 184				reiterated the

principle that a tenant in a suit for possession was estopped
from questioning the title of the landlord under Section 116

of the Evidence Act. The title		of the landlord, declared this

Court, even otherwise irrelevan		t in a suit for eviction of the

tenant. The only exception to the rule of estoppel as stated

“	116. Estoppel of tenant; and of licensee of person
in possession.—No tenant of immovable property, or
person claiming through such tenant, shall, during
the continuance of the tenancy, be permitted to
deny that the landlord of such tenant had, at the
beginning of the tenancy, a title to such immovable
property; and no pers		on who came upon any
immovable property by the licence of the person in
possession thereof, shall be permitted to deny that
such person had a title to such possession at the
time when such licence was given.”

in Section 116 (supra) may be where the tenant is validly JUDGMENT attorned to the paramount title holder of the property or where that the plaintiff-landlord had, during the intervening period, lost his title to the property. We are not, however, dealing with a case where the respondent-tenant claims that the property is vested in anyone else who could be described as the paramount title holder or there was any extinction of the title of the appellant on any count whatsoever since the 13 Page 13 induction of the respondent as a tenant into the premises. We need not, therefore, be detained by any one of those considerations. What is important is that so long as a jural

relationship exists between the	respondent-tenant and the

appellant and so long as he has not surrendered the

possession of the premises in his occupation, he cannot

question the title of the appellant to the property. The

inevitable inference flowing from the above proposition

would be that (viz-a-viz the respondent) the appellant was
and continues to be the owner	of the premises in question

since the year 1992 when the r	espondent was inducted as a

tenant. Reckoned from the ye	ar 1992 the appellant has

established his ownership of the premises for a period of five

years before the filing of the eviction petition thereby JUDGMENT entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949.

18.		We must before parting remind ourselves that Section

13-B is a beneficial provision intended to provide a speedy remedy to NRIs who return to their native places and need property let out by them for their own requirement or the requirement of those who are living with and economically 14 Page 14 dependent upon them. Their position cannot, therefore, be worse off than what it would have been if they were not Non-Resident Indians. If ordinarily a landlord cannot be

asked to prove his title before		getting his tenant evicted on

any one of the grounds stipulated for such eviction, we see

no reason why he should be asked to do so only because he

happens to be a Non-Resident Indian. The general principles

of Evidence Act including the doctrine of estoppel enshrined

in Section 116 are applicable even to the tenants occupying
properties of the Non-Resident I		ndians referred to in the Act.

19.	The upshot of the above	discussion is that the Courts

below fell in manifest error in holding that the appellant-

landlord was obliged to prove his title to the property, no JUDGMENT matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. We have, in the circumstances no hesitation in reversing the view taken by the Courts below and in decreeing the eviction petition.

20.		We accordingly allow this appeal, set aside the

judgment and order passed by the Courts below and direct 15 Page 15 eviction of the respondent from the suit premises. Since the respondent has been in possession of the suit property for a considerable length of time, we are inclined to grant him

reasonable time to do so. We		accordingly direct that the

respondent shall have time till		31st	March, 2015 to vacate

the premises in question and handover the peaceful

possession of the same to the appellant subject to the
following conditions:<br>(1) The respondent files an undertaking in this Court on
(1)
usual terms within four we		eks.
(2)	The respondent deposits	arrears of rent, if any, with
the Rent Controller within six weeks from today.

(3)		JUDGMENT<br>The respondent pays/deposits with Rent Controller

compensation for use and occupation of the premises

@Rs.2000/- per month w.e.f. 1	st	September, 2014

		onwards till the date of vacation.
(4)		In the event of the failure of the respondent to comply

with any one of the above conditions, the order of eviction shall become executable, forthwith. 16 Page 16 ……………………………..…….…..…J. (T.S. THAKUR) …………………………..……………..J. (C. NAGAPPAN) New Delhi, September 2, 2014 JUDGMENT 17 Page 17