Tag Archives: tenant

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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Structural alteration – When calls for Eviction of a Tenant

It is not every kind of construction or structural alteration which will give rise to a cause of action for evicting a tenant. The offending construction or structural alteration must be if the type as was likely to result either in diminishing the value or utility of the building or in causing disfigurement thereof. In the absence of this, the raising of construction, making structural alteration per se will not give cause of action for eviction of the tenant. Mukesh Chandra Aggarwal v. Smt. Kamlesh Jain, 2015 (113) 893.

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Rent – Meaning of

In P.L. Kureel Talib Mankab v. Beni Prasad, AIR 1976 All 362, it has been said that it is an established proposition that ‘rent’ includes not only what is ordinarily described as ‘rent’ but also payment in respect of special amenities provided by the landlord. Rent includes all payments agreed by the tenant to be paid to the landlord for the use and occupation not only of the building but also of furnishing, electric installation and other amenities.
The Apex Court also in Karnani Properties Ltd. v. Miss Augustine and others, AIR 1957 SC 309, held that the ‘rent’ is comprehensive enough to include all payments agreed by the tenant to be paid to the landlord for the use and occupation not only in respect of the building and its appurtenances but also in respect of furnishings, electric installations and other amenities agreed between the parties to be provided to the tenant.
In Raj Kumar Pandey v. Rama Nand Upadhyay, while dealing with the definition of ‘rent’ in the light of the provisions of Section 105 of the Transfer of Property Act held that the definition of the ‘rent’ is very comprehensive and it includes service or any other thing of value to be rendered periodically or on any other specific occasions to the transferor by the transferee to enjoy the property transferred. It also held that water tax is a part of rent unless there is contract to the contrary.
In Smt. Raj Rani Kapoor v. Bhupinder Singh, 1986 (2) ARC 457, it was held that if tenant agrees to pay taxes, two situations may arise, either the taxes are payable alongwith the rent as part thereof or the tax amount may be payable separately in addition to the rent. It is always open to the parties to agree that the house tax and water tax to be paid as part of the rent. It was further held by the Hon’ble Apex Court in Smt. Raj Rani Kapoor v. Bhupinder Singh, 1991 (17) ALR 29, that for creating relationship of landlord and tenant the landlord transfer to the tenant the right to enjoy the property for a certain time or in perpetuity and anything which the tenant pays for this transfer of right to enjoy the property will be taken to be the ‘rent’ of the property.
The word ‘rent’ has been considered in Milap Chandra Jain v. Roop Kishor, 2014 (103) ALR 484 and it has been held therein that any periodic payment made by the tenant to the landlord for the enjoyment of the property which has been leased out either in the form of money or service or other things of value would constitute ‘rent’.
In Baleshwar Singh v. K.P. Singh, 2015 (108) ALR 136, it was held that as all taxes and charges towards fixtures and fittings were being paid together with rent, they will form part of the ‘rent’. Smt. Savitri Devi Didwania v. M/s Allied Pharmaceutical, 2015 (108) ALR 767.

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Rent Law – Object Of

The object of rent law is to balance the competing claims of the landlord on the one hand to recover possession of building let out to the tenant and of the tenant to be protected against arbitrary increase of rent or arbitrary eviction, when there is acute shortage of accommodation. Though, it is for the legislature to resolve such competing claims in terms of statutory provisions.
In Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1, the Hon’ble Supreme Court emphasized the need of social legislations like the Rent Control Act striking a balance between rival interests so as to be just to law. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. While the shortage of accommodation makes it necessary to protect the tenants to save them from exploitation but at the same time the need to protect tenants is coupled with an obligation to ensure that the tenants are not conferred with a benefit disproportionately larger than the one needed. Socially progressive legislation must have a holistic perception and not a short sighted parochial approach.
In Arjun Khiamal Makhijani v. Jamnadas C. Tuliani, (1989) 4 SCC 612, it was observed that provisions contained in such legislations are capable of being categorized into two: those beneficial to the tenants and those beneficial to the landlord. As to a legislative provision beneficial to the landlord, an assertion that even with regard to such provision an effort should be made to interpret it in favour of the tenant, is a negation of the very principle of interpretation of a beneficial legislation. Sidhharth Vyas v. Ravi Nath Misra, (2015) 2 SCC 701.

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