Punjab-Haryana High Court
Smt. Ram Devi vs Lal Chand on 31 May, 2005
Equivalent citations: (2006)142PLR71
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. The present petition filed by Smt. Ram Devi, who is the landlady of the premises in question, which is a shop at Shahabad, tehsil Thanewar, Distt. Kurukshetra.
2. The landlady filed an ejectment petition on March 29, 1988 against Assa Nand and Lal Chand. It was claimed by her that Assa Nand had taken the premises on rent at the rate of Rs. 40/- per month plus house tax vide a rent note dated December 2, 1970 and as such there was relationship of landlord and tenant between her and the aforesaid Assa Nand. The ejectment of the aforesaid tenant was sought on the ground that the tenant was in arrears of rent and house tax for the last three years preceding the date of ejectment petition; that Assa Nand had sublet the premises in question to Lal Chand without the consent of the landlady either written or oral and at the time of ejectment petition it was Lal Chand who was in exclusive possession and control of the premises in dispute; and that the aforesaid respondents had materially impaired the value and utility of the shop in question and show case had been raised in the walls and platform had been constructed in the backside portion of the shop by inserting karies and phattas in the walls. It was also claimed that Lal Chand had allowed his workmen to sit on the said platform. All this had been done without the written consent of the landlady.
3. Upon notice of the aforesaid ejectment petition, Assa Nand and Lal Chand put in appearance. Assa Nand filed a written statement on June 9, 1988 contesting the ejectment petition and claiming that the rent of the premises in question was Rs. 50/- per month plus house tax which had been paid and that he was not liable to be ejected from the premises on any of the grounds.
4. Lal Chand, respondent No. 2 filed a separate written statement on August 17, 1988. It was claimed by him that he is a direct tenant in the premises in question at the monthly rent of Rs. 125/- which had been subsequently enhanced to Rs. 240/-. It was further claimed by him that Assa Nand, respondent No. l, had no concern with his tenancy at all. It was specifically claimed by Lal Chand that he had paid rent upto March 7, 1988 and on refusal of the landlady to accept the same, the rent had been deposited under Section 6-A of the Act before the Rent Controller. Even on appearance in the Court, Lal Chand offered the rent but the landlady refused to accept the same. Accordingly he denied that he was liable to be ejected on the ground of non-payment of arrears of rent. The question of there being any subletting between Assa Nand and Lal Chand was also specifically denied by Lal Chand. He claimed that he had taken the shop in question from the landlady and her husband in the year 1977 and at that point of time the shop in question was vacant. It was also claimed that Assa Nand had no concern with the property in question. A plea of there being collusion behaven landlady and Assa Nand was also taken. It was admitted that since he was carrying in the business of tailoring, therefore, he had fixed certain wooden fixtures but the aforesaid wooden fixtures were not touching the wall in any manner, nor he had impaired the value and utility of the premises in question.
5. The learned Rent Controller ordered the ejectment of the tenants from the premises in question. It was held that Lal Chand was not proved to be a direct tenant under the landlady and, therefore, neither he had any right to pay the arrears of rent directly to the landlady nor to claim direct relationship between himself and landlady.
6. Aggrieved against the aforesaid ejectment order passed by the learned Rent Controller, Lal Chand filed an appeal before the learned appellate authority. The learned Appellate Authority re-appraised the entire evidence and on the basis of the aforesaid reappraisal came to the conclusion that there was sufficient documentary evidence available on the record to show that Lal Chand was in continuous possession of the premises in dispute since the year 1977 and carrying on the business of tailoring. It was further observed that since the landlady was residing in portion of the building and her husband (her general attorney also) carried on doctor's shop in the adjoining shop, therefore, it was impossible to believe that the landlady would kept silent for a period of 11 years before filing the ejectment petition. On the basis of documentary evidence and the inferences drawn from the circumstances, it was held that Lal Chand was a direct tenant of the landlady. On the basis of the aforesaid conclusion the plea of the subletting taken by the landlady was negatived and also it was held that since Lal Chand had offered to tender arrears of rent, as demanded by the landlady, but she had not accepted the same, therefore, no ejectment order could have been passed against Lal Chand. Consequently, the appellate authority allowed the appeal and after reversal of ejectment order passed by the learned rent controller, dismissed the ejectment application filed by landlady.
7. The landlady has felt aggrieved against the aforesaid order of the appellate authority and has now approached this Court through the present revision petition.
8. I have heard Shri Arun Jain, the learned Counsel for the petitioner and Shri R.K. Jain, the learned Counsel appearing for respondent No. l Lal Chand and with their assistance have also gone through the records of the case.
9. Shri Arun Jain, the learned Counsel for the landlady vehemently argued that Ex.PI, the rent note dated December 2, 1970 clearly proved beyond doubt that Assa Nand had been inducted as a tenant by the landlady. Shri Jain further relied upon the various entries in the house tax register maintained by the Municipal Committee, Shahabad viz Ex.P4 to P7 to claim that Assa Nand had been recorded as a tenant in the aforesaid house-tax register and, therefore, the finding recorded by the learned appellate authority that Assa Nand was not a tenant of the premises in dispute, but it was the Lal Chand who was a direct tenant under the landlady, was clearly erroneous and contrary to the record. The learned Counsel norther argued that once the rent note Ex.P1 showed that Assa Nand had been inducted as a tenant in the year 1970 and since Lal Chand was taking up a plea of direct tenancy, therefore, the onus of proof shifted upon him to prove the aforesaid fact and also to show that Assa Nand had vacated the premises, upon which Lal Chand had been inducted as a tenant. Shri Jain also relied upon the statement of Assa Nand who had appeared as RW1 (his own witness) to contend that the statement of the aforesaid witness clearly showed that he had been inducted as a tenant in the year 1970 to carry on his business of tailoring sad later on he had given the possession of the shop to Lal Chand. On the basis of aforesaid contentions, the learned Counsel prayed that the present petition filed by the landlady was liable to be accepted.
10. On the other hand, Shri R.K. Jain, the learned Counsel appearing for Lal Chand refuted all the aforesaid contentions raised on behalf of the landlady. It was argued by Shri R.K. Jain that firstly execution of the aforesaid rent note Ex.Pl could not be taken to be proved to the satisfaction of the Court and in any case the said rent note was of the year 1970, whereas, the case set up by Lal Chand in his written statement was that he had taken the shop in question in the year 1977, when the same was lying vacant. On that basis, the learned Counsel maintained that the mere existence of the aforesaid rent note Ex.Pl cannot be said to be binding upon Lal Chand, who was a subsequent entrant to the shop in question, when it had been let out to him in the year 1977. Shri Jain also placed reliance upon various documents produced by Lal Chand to show that he was carrying on the business in the premises in question since the year 1977 onwards in his own right. On that basis, it was argued that since Lal Chand was in exclusive possession of the premises since the year 1977 as a tenant, therefore, the very fact that the landlady, who was residing in a portion of the building in question and her husband (her general attorney as well) who was running a clinic in the adjoining shop, could not have kept silent, had Lal Chand been in an unauthorized possession. Thus, it was maintained by the learned Counsel that the aforesaid fact itself leads to an inference that Lal Chand was a direct tenant of the premises.
11. I have duly considered the rival contentions of the learned Counsel for the parties. In my considered opinion, there is no merit in the present petition and the same deserves to fail.
12. Firstly, the landlady has strongly relied upon the rent note Ex.Pl. The rent note has been proved by Narotam Chand, Deed Writer, AWL The attesting witness of the said rent note Ramji Dass has since died. In these circumstances, it can safely be inferred that due execution of the aforesaid rent note dated December 2, 1970 in favour of Assa Nand is proved. However, absolutely no material on the record has been produced that after entering into the possession of the said premises, on the basis of the said rent note, if at all, Assa Nand continued in the said possession till the same came to be occupied by Lal Chand. A strong reliance has been placed by the landlady on Exs. A4 to A7. The aforesaid documents are the entries from the house tax register from MC, Shahabad for the year 1979 to 1980-81, 1981-82, 1983-84 and 1987-88. The statement of Kailash Chand, Clerk in M.C., Shahabad who appeared as a witness and also proved the photostat copy of the assessment register, admitted that in Ex.DW7/A, the word Lal Chand written in Hindi had been changed to Assa Nand. On the basis of the said statement, it is apparent that no authenticity could be granted to the aforesaid documents Exs. A4 to A7 as well. Even if it be taken that the aforesaid entries had been duly made in the municipal staff, still by itself the same would not reflect the possession of Assa Nand or his status as a tenant. It is well settled that the entries in the house tax register do not establish the relationship of a landlord and tenant between the parties. The factum of the possession of Assa Nand as reflected in the said entries, is negatived by the statement of Assa Nand himself, when he had appeared as RW1 (his own witness). Although in the aforesaid statement Assa Nand tried to help the landlady by claiming that he had given the shop to Lal Chand himself but in his statement he further admitted that he had left the tailoring business in 1976 and had started agriculture with his sons. In these circumstances, when Assa Nand himself, even while trying to support the landlady, admitted that he had vacated the premises in the year 1976, then the question of his possession being reflected in the said entries does not arise at all. As a matter of fact, the aforesaid statement of Assa Nand supports the plea taken by Lal Chand, when he (Lal Chand) has specifically pleaded that he had taken the shop on rent in the year 1977, when the same was lying vacant. A further inference which is available from the aforesaid statement of Assa Nand is that after entering into possession as a tenant on the basis of rent note Ex.Pl he had vacated the same in the year 1976 itself. The documents on the record, Exs.Dl to D3 show that Lal Chand had been carrying on the business of tailoring in the shop in question in the name and style of M/s Fit-well Tailor. Further, the certificate of registration Ex.D4 and extract from the register Ex.P5 show that the aforesaid establishment was registered under the provisions of Punjab Shops and Commercial Establishment Rules since August 31, 1980 and Lal Chand was shown as an employer of various employees. Ex.D6, proved by Raj Kumar, RW5 shows that Lal Chand was running the shop in question since the year 1977. Various other documents were duly proved by Lal Chand, while he had appeared his own witness. The following documents were taken into consideration and relied upon by the appellate authority:
(i) Ex.D9 to D11 showing the purchase of labels of Fitwell Tailors, Shahabad on 16.5.1979, 3.11.1977 and 17.8.1980.
(ii) Railway receipts Ex.D12 to Ex.D15 showing that Lal Chand was travelling everyday from Ambala Cantt to Shahabad.
(iii) Post card Ex.D16 showing that a firm M/s Janta Woven Lables Iduvampalayam, Tamil Nadu had despatched to M/s Fitwell Tailors, Shahabad on 12.12.1981.
(iv) Ex.D17 and D18 showing the opening of a saving accounts by M/s Fitwell Tailors, Shahabad.
(v) Some letters of the year 1980 being Exs. D19 to Ex.23 showing that M/s Fitwell Tailors was carrying on business in the shop in the year 1980.
(vi) Electricity bills and receipts Ex.D24 to Ex.D42 coming from the custody of Lal Chand pertaining to the year 1977 onwards. The appellate authority drew inference that the electricity charges were paid by Lal Chand.
(vii) Ex.R48 to R51 are posts cards, envelops etc. from the year 1977 onwards showing that M/s Fitwell Tailor Jagdish Marg, Shahabad was receiving the letters etc. on the said address.
(viii) Ex.R55 and R56 pertaining to July 1984 again showing receipt of some publication received by Lal Chand on the said address.
(ix) Exs.D44 and D45 showing the register and order books whereby measurements of the customers for the purpose of stitching their clothes, were maintained by Lal Chand pertaining to the year 1980-81.
12. The aforesaid documents clearly support and prove the plea of Lal Chand that he was in continuous possession of the premises in dispute since the year 1977 and carrying on his business of tailoring in the said shop. In these circumstances, when the landlady and her husband are living in the same premises and carrying on business in the adjoining shop, the only inference possible is that Lal Chand was carrying on the business in the premises with the consent of the landlady, meaning thereby that he was a direct tenant of the landlady.
13. Even otherwise, it is a well settled principle of law that the landlord can only succeed in the ejectment petition if he is able to prove the ground of ejectment taken by him seeking the ejectment of his tenant. The burden of proving the aforesaid ground is on the landlord. In a case where the landlord fails to prove the aforesaid ground, the ejectment petition filed by him is liable to fail. In the present case, the landlady has completely failed to discharge the onus of proving the ground of ejectment. It has not been shown by her that from the year 1977 onwards, at any point of time, Assa Nand was in possession of the premises and that he had sublet the same to Lal Chand. On the other hand, Lal Chand has led cogent evidence to prove the plea of direct tenancy, taken by him.
14. In view of the aforesaid discussion, I do not find that the findings of fact recorded by the learned appellate authority suffer from any infirmity or are contrary to the record in any manner.
15. No other point has been urged.
In view of the aforesaid discussion, I do not find any merit in the present revision petition. The same is accordingly dismissed.