Punjab-Haryana High Court
Chela Ram And Ors. vs Parshotam Lal And Ors. on 6 August, 1999
Equivalent citations: (2000)124PLR297
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a civil revision and has been directed against the judgment dated 14.1.1983 passed by the Court of the appellate authority under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called 'the Act'), who accepted the appeal of the landlord-respondents and set aside the order of the Rent Controller dated 12.12.1981, who dismissed the application of the landlords under Section 13 of the Act.
2. The brief facts of the case are that the landlord-respondents filed a petition under Section 13 of the Act against the tenant-petitioners, with the allegations that the landlords leased their shop to Chela Ram on a monthly rental of Rs. 5/- and that Chela Ram had executed a rent deed on 1.3.1950. It is further alleged that the rate of rent was increased to Rs. 15/- per month in the year 1971 and the said rent was paid upto December, 1973 and, thereafter, the tenant-Chela Ram failed to pay the rent to the landlords who claimed ejectment of the tenants on the grounds of non-payment of rent, change of user and on the plea of sub-letting by alleging that Chela Ram, the original tenant, had let out the demised premises to his son Krishan Lal without the consent of the landlords in writing.
3. The said petition was contested by Chela Ram and his son who filed joint written statement. It was admitted by them that the shop in question was given on rent by the landlords to Chela Ram at the rate of Rs. 5/- per month. However, it was denied that the rate of rent was ever increased to Rs. 15/- per month it was also alleged that ever since the said shop was taken on rent, both the respondents (petitioners herein) were carrying on the business jointly as Medical practitioners as they are member of the joint Hindu family being father and son. Other allegations contained in the petition were also denied. It was also alleged that both the respondents were registered medical practitioners and there was no question of sub-letting or change of user.
4. A rejoinder was filed by the landlords controverting the allegations of the written statement by re-iterating those made in the petition and on the above pleadings of the parties, the learned Rent Controller framed the following issues for the disposal of the petition:-
"1) Whether the respondents are liable to be ejected from the premises in dispute on the ground taken in the application? OPA.
2) Relief."
5. The parties led oral and documentary evidence in support of their case and on the conclusion of the proceedings, issue No. 1 was decided against the landlords and in favour of the tenant and the so-called sub-tenant. On the strength of the decision of issue No. 1, issue No. 2 was also decided against the landlords, as a result of which, the petition under Section 13 of the Act was dismissed. The major grounds taken up by the Rent Controller in dismissing the petition were that respondent No. 2-Krishan Lal is the sole son of his father Chela Ram and they were members of the joint Hindu family and both of them had Unani business in Ayurvedic. The father and son were the medical practitioners and they had been doing the business in the premises in question. Apart from that, Chela Ram is doing the work of Petition Writer. In view of the close proximity of relationship between respondents 1 and 2, the Rent Controller, held that it is not proved at all that Chela Ram had parted the exclusive possession and control of the demised premises to his son Krishan Lal and, in these circumstances, there was no question of sub-letting. The Rent Controller also held that there is no evidence at all to suggest that there was some agreement between the father and son vide which the father had agreed to deliver the possession of the demised premises to his son for consideration.
6. Aggrieved by the order of the Rent Controller, the landlords filed the appeal in the Court of the appellant authority at Kurukshetra, who allowed the appeal by holding that Krishan Lal was a sub-tenant of his father. In para-13 of the impugned judgment dated 14.1.1983, it was held by the appellate authority as under:-
"In view of my detailed discussion above, I am of the opinion, that it has been proved on the record that Chela Ram was the tenant on the shop in question and that the same was in exclusive possession of Shri Krishan, respondent No. 2, at the time of the filing of the petition and that the respondents have failed to prove, either any joint business or that Shri Krishan was occupying the shop in question. That being so, it stands proved on the record that Chela Ram had sub-let the shop of Shri Krishan. Accordingly, the finding of the learned Rent Controller on the question of sub-letting is reversed and the said issue is decided in favour of the appellants and against the respondents."
7. This time the tenants were aggrieved, who filed the present revision.
8. I have heard Ms. Hemani Sarin, Advocate, on behalf of the petitioners and Mr. Arun Jain, Advocate, for the respondents and with their assistance have gone through the record of this case.
9. The learned counsel for the petitioners submitted that the appellate authority committed a patent error in holding that Chela Ram had parted the exclusive possession of the shop in question to his own son and that the ingredients of sub-tenancy have been established. It was further submitted by the counsel for the petitioners that in view of the close proximity of relationship between the father and son, no inference of sub-tenancy in favour of the landlords can be drawn. Father and son had the similar business of Hakimi. Both were licensed practitioners and in all probability, they were doing the business of Hakimi in the same shop. In these circumstances, no adverse inference can be drawn against the original tenant and his son Krishan Lal.
10. On the contrary, the learned counsel for the respondents has supported the judgment of the appellate authority by stating that it stands proved on the record even by the documentary evidence that earlier the possession of the shop in question was with Chela Ram alongwith his son Krishan Lal and this possession continued upto the year 1961 but from 1961 to 1965, Krishan Lal alone came into the exclusive possession of the shop in question and, therefore, a reasonable inference can be drawn in favour of the landlords that Chela Ram had parted the possession of the demised premised in favour of his son for consideration and when Krishan Lal is in exclusive possession and control over the demised premises, the presumption of sub-tenancy can be drawn. Mr. Jain submitted that there can be hardly any direct evidence on the record to prove sub-tenancy because it is a secret arrangement between a tenant and a sub-tenant. Only by inferences the sub-tenancy of a person can be established and in the present case, there is abundant evidence on the record to suggest that Chela Ram had parted physical possession of the shop in question to his son Krishan and, therefore, the findings of the learned appellate authority should be maintained.
11. The argument of the learned counsel for the respondents was refuted by the learned counsel for the petitioners and it was submitted that during the pendency of this revision, Chela Ram has expired on 30.11.1989. The tenancy rights of Chela Ram are heritable and which have also been inherited by Krishan Lal, who became a statutory tenant of the landlord and, in these circumstances, the ejectment of the tenant and the so-called sub-tenant can not be ordered.
12. I have considered the rival contentions of the parties and am of the considered opinion that the appellant authority went in wrong in upsetting the order of the learned Rent Controller. A glance of the main petition under Section 13 of the Act would show that it is not specifically alleged even by the landlords as to when Chela Ram had parted the possession of the shop in question to his son Krishan Lal exclusively so as to constitute sub-tenancy. It is proved fact on the record that both the father and son had taken the licence in order to practice in Ayurvedic medicine. Ex.R-1 is a certificate issued by the Board of Ayurvedic and Unani Systems of Medicine, Punjab, in favour of Chela Ram and this was issued somewhere in the year 1967. Ex.R-2 is, again another certificate which was issued in favour of Chela Ram somewhere in the year 1954. Krishan Lal appeared as RW-3 and he stated that in the shop in question his father also worked as Petition Writer apart from doing the work of Hakimi. There is no satisfactory rebuttal on the record to indicate that Chela Ram had given full control of the premises in question to his son Krishan Lal. Further, there is no evidence on the record to suggest that the father and son had separate mess. Also, there is nothing to suggest on the record that the father and son had severed their connections with the business. Otherwise, it does not sound probable that there would be sub-letting between father and son. A very strong and cogent evidence is required to draw an inference regarding sub-tenancy in favour of the landlord when the relationship between the tenant and the so-called sub-tenant is very close.
13. The learned counsel for the respondents draws my attention to the record of the House Tax Department for the years 1973-75, 1975-78 and 1978-81 and submitted that these entries shows that the possession of the shop in question has gone in favour of Krishan Lal.
14. To my mind, these entries will not come to the rescue of the landlords. It is proved on the record that even in the House Tax Department record for the period 1958 to 1961, the name of Chela Ram was entered. The landlords have not produced any person in the shape of a neighbour or any independent witness to suggest that Chela Ram had abandoned the possession of the shop in question and for all intents and purposes, he had parted the possession in favour of his son who alone opened and closed the shop in question. On account of old age, the father may not be frequently coming to the shop in question but it does not mean that he had parted the possession exclusively in favour of his son. In order to succeed on the ground of sub-tenancy, the landlord has to prove that the tenant had parted the possession of the shop in question without his written consent. Whether sub-tenancy in a particular case has been created or not will be a question of fact. The learned appellate authority had mis-directed itself in upsetting the findings of the Rent Controller which findings are based on correct appreciation of evidence.
15. The counsel for the petitioners has relied upon several judgments reported as Rajinder Parshad and Anr. v. Parveen Kumar, 1992(2) R.C.R. 150, Krishan Chand and Bhagwan Dass v. Gobind Ram and Ors., 1986(1) R.C.R. 276, Dipak Banerjee v. Lilabati Chakraborty, (1987)4 S.C.C. 161, and Nem Chand etc. v. Ved Parkash Chhabra etc., (1997(1) R.C.R. 511. All these authorities support the contention of the counsel for the petitioners when she argued that the landlords had miserably failed to establish the essential ingredients of sub-tenancy.
16. In Nem Chand's case (supra), it was proved on the record that the son was residing with his father who was a tenant in the house. The son was having a separate ration card but he was not separate in mess. In these circumstances, it was held by a Single Bench of this Court that no inference can be drawn that tenant has sub-let a portion in favour of his son because in order to succeed on the ground of sub-tenancy, the landlord has not only to prove the exclusive possession of the sub-tenant but has also to prove that parting of possession was for a valuable consideration. There is not an iota of evidence in this case that on what terms Chela Ram had parted the possession to his son.
17. In Krishan Chand's case (supra), the business was being run by the father and son jointly in the demised shop and the father was living separately in a nearby village. It was held that even if it is assumed for the sake of arguments that the business was run in the name of the son (alleged sub-tenant) and that he was the sole proprietor, still the landlord can succeed only if he proved that the tenant is not in occupation of the demised premises.
18. Rajinder Parshad's case (supra), was also a case between son and father. The shop was taken on rent by the son for sale of vegetables and fruits. The son joined service and father started doing the business. The evidence on the record was that father and son were living in the same house and had joint mess. In these circumstances, it was held that it is not a case of sub-tenancy because the landlord had failed to prove exclusive possession of the father and parting the possession for a valuable consideration.
19. In Dipak Banerjee's case (supra), the Hon'ble Supreme Court was pleased to hold that in order to constitute sub-tenancy, it must be shown that the sub-tenant was in exclusive possession of the premises over which the main tenant had no control. In the present case, there is no evidence from which it may be held that Chela Ram had lost the control over the premises or that he never visited the shop in question and had virtually abandoned the possession in favour of his son for consideration.
20. The counsel for the petitioners also invited my attention to Indranaryan v. Roop Narayan and Anr., A.I.R. 1971 S.C. 1962, which lays down that there is a presumption that members of Hindu family are joint is stronger in case of a father and his sons and one who pleads that a member has separated himself from the family has to prove it satisfactorily. In the present case, the landlords have not led any cogent or reliable evidence to show that there was disruption between Chela Ram and his son Krishan Lal.
21. There is another angle of vision for looking at this revision and from that angle also, this revision is bound to succeed. Chela Ram has expired during the pendency of this petition on 30.11.1989. His tenancy had been inherited by his son. It has been held in Ram Sarup (deceased) represented by Harish Kumar and Anr. v. Lal Chand and Ors., 1988(1) R.C.R. 251, that when an ejectment petition has been filed on the ground of sub-tenancy by alleging that the tenant has sub-letted the premises to the son and during the pendency of the ejectment petition, the death of tenant takes place and the son inherits the tenancy rights, the ground of sub-letting is no more available to the landlord. 22. On the other hand, the learned counsel for the respondents placed reliance upon Santosh Devi and Ors. v. Vir Chand, (1996-1)112 P.L.R. 459, Gauri Shankar (deceased) represented by Smt. Sheila Devi and Ors. v. Gopal Krishan Sood, 1986(1) R.C.R. 362 and Banta Singh v. Vishwa Nath Dogra and Anr., 1981(2) R.C.R. 578 and submitted that there can be a sub-tenancy even between father and son and no ready inference can be drawn against the landlord.
23. I have considered the authorities cited by the learned counsel for the respondents. In all these authorities, it had been proved that the tenant had parted the exclusive possession of the demised premises in favour of his close relations and that the original tenant had lost all the control over the demised premises. Here is a case where it is proved on the record that the father and son had been doing the joint business of Hakimi in the same premises and, in these circumstances, these authorities will not come to the rescue of the respondents.
24. In the present case, with the death of Chela Ram his tenancy has also been inherited by his sole son who himself becomes the tenant. In order to create a sub-tenancy, a contract between two persons is required. With the death of Chela Ram only Krishan Lal remains in the field. The learned counsel for the landlords has not been able to dislodge the case of the tenant. This court is of the opinion that the learned appellate-authority committed a patent illegality while interpreting the law and facts of this case and in these circumstances, when an illegality arises in the proceedings and when there is a material irregularity in the appreciation and interpretation of the evidence, the revisional court can certainly show its jurisdiction in setting aside the order.
25. Resultantly, this revision is allowed and the impugned judgment of the learned appellate-authority dated 14.1.1983 is hereby set aside and the order passed by the learned Rent Controller is hereby restored and the petition under Section 13 of the Act filed by the landlords is hereby dismissed with no order as to costs.