Punjab-Haryana High Court
Sh. Subhash Chander vs Sh. Surinder Singh on 21 July, 1994
Equivalent citations: (1994)108PLR351
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER Ashok Bhan, J.
1. This judgment shall dispose of the three revision petitions No. 2099 (Mohinder Singh v. Surinder Singh etc.), 2100 (Sub-hash Chander v. Surinder Singh etc.) and 2170 (Sewa Ram v. Surinder Singh etc.), all the three pertaining to the year 1985. Facts are being taken from C.R. 2100 of 1985
2. One Kartar Singh was the original owner of three shop's which were built by him in 1969-70. He was settled in England. He died on January 1, 1982. The ejectment petition filed by the Legal Representatives of Kartar Singh, Landlord (hereinafter referred to as 'the landlord'). According to the allegations made in the ejectment petition, Kartar Singh had let out these three shops on rent at the rate of Rs. 50/- per month in the year 1971 to Shingara Singh. Ejectment petition has been filed on the ground (i) that Shingara Singh has not paid the arrears of rent since 1982; and (ii) that Shingara Singh has sub-let the shops taken by him on rent to Subhash Chander, respondent No. 2 (hereinafter referred to as 'respondent No. 2'), without the written consent of the landlord.
3. Shingara Singh in his written statement has averred that after about two years of the taking of the premises in dispute on lease from Kartar Singh, he constructed his own shop and as such he wanted to vacate the shop in dispute; that Subhash Chander approached and requested him to sub-let the shop to him. Shingara Singh initially refused to sublet the shop to Subhash Chander but assured him that he had very good relations with Kartar Singh, landlord and that he would talk to him and on this assurance Shingara Singh handed over the possession of the shop in dispute to Subhash Chander.
4. Subhash Chander in his written statement alleged that Shingara Singh and Kartar Singh, deceased are related to each other, that the premises in dispute were never let out to Shingara Singh and that he (Shingara Singh) would not occupy the premises in dispute; that no relationship of landlord and tenant existed between Kartar Singh and Shingara Singh; that Shingara Singh had the authority from Kartar Singh to rent out the premises in dispute that Shingara Singh leased out the premises in dispute to him in the month of November 1971 at a monthly rent of Rs. 100/-; that he had paid the rent to Shingara Singh upto December 31, 1982. In the additional pleas taken, it was stated that Shingara Singh has three shops of his own out of which one was occupied by him for own out of which one was occupied by him for his own out of which one was occupied by him for his own business and the other two shops were let out by him to others; that there was no occasion for Shingara Singh to take the shop in dispute from Kartar Singh under the circumstances.
5. On the pleadings of the parties, the following issues were framed :-
1. Whether respondent No.1 has already paid the arrears of rent as alleged and no rent is due from him? OPRL
2. Whether respondent No. 1 has sublet the demised premises to respondent No. 2, without the written consent of the applicant? OPA.
3. Whether respondent No.2 is a direct tenant under respondent No. 1 at monthly rent of Rs. 115/- as alleged by respondent No. 2 if so, to what effect? OPR 2 3-A Whether the relationship of landlord and tenant exists between the applicants and respondents ? OPA
4. Relief.
6. Under Issue No. 1, Rent Controller decided that Shingara Singh was in arrears of rent while other respondents had paid the rent up to December 31, 1982 to Shingara Singh at the rate of Rs. 100/- per month. On issues No. 2, 3, 3-A, the Rent Controller came to the conclusion that there existed relationship of landlord and tenant between Kartar Singh and Shingara Singh and that Shingara Singh had sublet the premises in favour of other respondents; that the other respondents were not tenants under Shingara Singh. On the basis of the findings recorded, the Rent Controller ordered the eviction of the sub tenants namely Mohinder Singh, Sewa Ram and Subhash Chander, respectively. Appellate authority also affirmed the findings recorded by the Rent Controller and held that Subhash Chander was a sub tenant inducted by Shingara Singh. The appeal was dismissed by the appellate authority being without any merit. The alleged sub tenant being-aggrieved has come in revision to this Court.
7. I have heard the learned counsel for the parties at length.
8. Mr. M.L. Sarin, Senior Advocate, appearing for the petitioner Subhash Chander argued that Shingara Singh was never inducted as a tenant by Kartar Singh; that it has not been proved on the record that Shingara Singh ever occupied the premises in dispute; that Shingara Singh owned three shops of his own out of which he had let out two shops and in the third he was doing his own business; that Shingara Singh had no need to take any shop on rent from Kartar Singh and rent note executed, by Shingara Singh in favour of Kartar Singh stands admitted. No receipt evidencing the payment of rent by Shingara Singh to Kartar Singh has been proved. Shingara Singh has admitted the averments made in the ejectment petition filed by the landlord; that no tenant openly would admit creation of such tenancy unless and until there was an arrangement between the landlord and alleged tenant; that the petitioner Subhash Chander has come to the Court with clean hands. He has admitted that he had taken the shop in dispute from Shingara Singh as he had the authority to let out the premises from Kartar Singh; that he had been paying the rent to Shingara Singh. Rent receipts were produced by him evidencing the payment of rent to Shingara Singh upto December 31, 1982. Shingara Singh had been collecting the rent on behalf of Kartar Singh; that the ejectment petition has been filed after a number of years of acquiring the knowledge about the creation of sub tenancy, which indicates that the petition has been filed mala fide, indicating an understanding between Kartar Singh and Shingara Singh which could only be known to them.
9. As against this, Mr. S.M.L. Arora, counsel appearing for the respondents argued that the finding recorded by the Courts below are finding of fact which cannot be interfered with at the revisional stage; that the tenants have failed to prove that Shingara Singh had any Written authority to sublet the premises in the absence of which the allegations made in the written statement or the arguments raised in the Court cannot be looked at with any credence.
10. I have gone through the statements of AW-1 Ashok Kumar Jain attorney, who filed the petition on behalf of landlord. He has stated in the witness box that he had informed Kartar Singh 10/11 years back about the creation of sub tenancy but no action was taken by Kartar Singh. AW-2 Charanjit Singh in his statement admitted that Shingara Singh had constructed the shops in the year 1969-70 out of which one was occupied by him and the other two shops were let out by him to others. AW-3 Avtar Chand is the Deed Writer who had written the rent note between Kartar Singh and Shingara Singh whereas AW-4 is Sat Narain who is the marginal witness of that deed. The evidence of these two witnesses is of no consequence because AW-3 Avatar Chand has admitted that he did not know the parties personally. So far as Sat Narain, marginal witness is concerned, he has only stated that rent note, Exh. A-2 was executed in favour of Shingara Singh. He did not state that possession of the building was' ever handed over to Shingara Singh by Kartar Singh. Subhash Chander has stepped in the witnesses box as RW-3.
11. After hearing the learned counsel for the parties, I am of the view that courts below have clearly erred in recording a finding that petitioner Subhash Chander was a sub tenant under Shingara Singh. Except for the statement of Charanjit Singh, AW-2, there is no evidence on record to show that Shingara Singh was ever put in possession of the premises in dispute. He has clearly stated that Shingara Singh has got constructed three shops of his own in the year 1969-70 and that he was in possession of one of the shops owned by him for doing his business; Shingara Singh in his written statement has stated that he let out the shops after about two years of the premises in dispute on lease from Kartar Singh which would come to the year 1973 if had already constructed his own shops in the year 1969-70 and was in occupation of the same, there was no question of his talking three shops on rent from Kartar Singh. Out of the shops constructed and owned by him, he kept only one shop with him whereas rented out the other two shops. No reasons have been given as to why he took three shops together on rent from Kartar Singh. Shingara Singh has admitted his tenancy under Kartar Singh and has further admitted the fact that he had created the sub tenancy. Normally speaking, this is not the conduct of the tenant who has created sub-tenancy. AW-1 Ashok Kumar Jain, attorney of the landlord has stated that he had brought to the notice of Kartar Singh 10/11 years back the fact regarding creation of sub-tenancy. He made this statement on 5.11.1983, meaning thereby that the landlord came to know about the creation of sub-tenancy in the year 1972-73. The petition was filed in December 1982. For ten long years, no steps were taken by the landlord for evicting the sub tenants from the premises in dispute. In somewhat similar circumstances this Court in Ram Kishan v. Harinder Singh etc., (1982) 84 P.L.R. 82 held that the rent note executed by the landlord, in favour of the alleged tenant was a sham transaction as no rent was being paid by the said tenant to the landlord; that the rent note created by the landlord in favour of the alleged tenant was a sham transaction to be used by him at a later stage. It was observed as under:-
"Taking into consideration all the facts and circumstances of this case, I am of the considered opinion that it is a clear case where both the rent notes, Exhibits A/1 and A/2, are mere sham transactions which seem to have been manipulated by the landlord to be used at a later stage. There is evidence on the record to the effect that the mother of Ram Kishan, petitioner, who appeared as RW-2, was working in the house of Pritam Singh landlord as a domestic servant. It was at her instance that Pritam Singh, landlord, had agreed to rent out the shop, in dispute, to her son Ram Kishan, petitioner. It appears that, taking advantage of the humble station of Ram Kishan, petitioner, in life, the landlord manipulated the not note, Exhibit A/2, otherwise to all intents and purposes, the rent note, Exhibit A/1, nor the 'rent note Exhibit A/2, were operated at any time as is clear from the evidence, referred to above. The whole approach of the Appellate Authority and the Rent Controller was illegal and improper in coming to the conclusion that the sub-letting was proved in the present case. From the very beginning, Ram Kishan, petitioner, has been the tenant on the property, in dispute, and he was never the tenant under Gurdial Singh, deceased, as alleged and claimed by Pritam Singh, landlord (deceased).
"Similar view was taken in an unreported judgment of this Court in Ram Kishan v. Santra Devi and Ors., C.R.No. 1407 of 1979, decided on 28.8.1986. Supreme Court of India in A.S. Sulochana v. C. Dhamalingam, 1987(2) SCC 180, has held that where the sub-letting was not questioned for several years (18 years) by the original landlord and no action for possession was instituted notwithstanding the fact that the sub tenant was in possession of a part of the premises would give rise to an inference that it was never treated to be an unlawful sub-letting. It seems that Kartar Singh was residing in England and he had executed a rent note in favour of Shingara Singh which was a sham and bogus document, never acted upon, created in order to procure the ejectment of the alleged subtenants on the ground of sub-letting. There is no evidence to prove that Shingara Singh was ever put in possession of the shops under the alleged tenancy created in his favour. Silence of ten years after knowing the factum of sub tenancy to get back the possession would indicate that in fact there was no sub-tenancy and the alleged tenancy created by Kartar Singh in favour of Shingara Singh was a sham transaction fabricated in order to procure ejectment of the alleged sub tenants on the ground of sub-letting. The allegation of creation of sub tenancy is not accepted and the findings recorded by the courts below to the contrary are reversed.
12. For the reasons recorded above, this revision petition is accepted, order of the Rent Controller and that of the Appellate Authority are set aside and the ejectment petition filed by the landlord-respondents is ordered to be dismissed throughout. No costs.
13. In C.R.No. 2099 of 1985 titled as Mohinder Singh v. Surinder Singh etc. Mr. S.D. Bakshshi counsel appearing for the landlord-respondent has stated that Mohinder Singh has vacated the premises on the basis of a compromise between the parties and has handed over the vacant possession to the landlord-respondent. If that be the case, the revision filed by Mohinder Singh has become infructuous but otherwise, I have held that Mohinder Singh was not a sub-tenant.