Punjab-Haryana High Court
Santosh Devi And Ors. vs Vir Chand on 4 December, 1995
Equivalent citations: (1996)112PLR459, 1996 A I H C 1748, 1996 HRR 153, (1996) 112 PUN LR 459, (1996) 1 RENCR 225, (1996) 1 CURLJ(CCR) 262
JUDGMENT V.K. Jhanji, J.
1. This is tenants revision petition directed against the order of the appellate Authority whereby the tenants have been ordered to be ejected from the shop in dispute on the ground of sub-letting.
2. Landlord, Vir Chand (respondent herein) filed a petition Under Section 13 of the East Punjab Urban and Restriction Act (in short the Act) against Hakam Rai and Mohinder Pal sons of Ram Gopal seeking their ejectment from the shop in dispute inter-alia on the grounds that the tenants are in arrears of rent; have impaired the value and utility of the premises by making material alterations; have changed the user of the building by selling sweets and tea, and have sub-let the premises to Ramesh Kumar, their brother. The trial Court dismissed the ejectment petition. However, the appeals of the landlord has been allowed by the appellate Authority and in consequence thereof order of ejectment has been passed against the petitioner-tenants on the ground of sub- letting. Appellate Authority on the appreciation of evidence on record has returned the finding that Ramesh Kumar is in exclusive possession of the shop wherein he is selling tea and sweets and the tenants have nothing to do with the shop. Against the order of the appellate Authority the tenants have filed the present revision petition.
3. Mr. M.L. Sarin, Sr. Advocate, counsel for the petitioners has contended that in order to prove sub-letting, two facts must necessarily be proved. Firstly, the alleged sub-tenant must be in exclusive possession of the tenanted premises, and secondly, the tenants must have parted with the premises in whole or in part thereof for a valuable consideration. According to Mr. Sarin, these two facts have not been proved in this case.
4. So far as exclusive possession is concerned, appellate Authority has come to the conclusion that Ramesh Kumar is in exclusive possession of the shop. For coming to this finding, the appellate Authority has relied on the oral and documentary evidence on record. In answer to the allegation of the landlord that one Ramesh Kumar, younger brother of the tenants, is carrying on the business of preparing and selling sweets and tea and the tenants have assigned the shop to said Ramesh Kumar, the tenants in their written statement took up the plea that the business of the tenants is Joint Hindu Family business and Ramesh Kumar is one of the coparceners. They also took up the plea that Ramesh Kumar sits at the shop along with his other brothers. Ramesh Kumar, when appeared as A.W.8 admitted in this statement that he and his family, i.e. his wife and two children have a separate ration-card, whereas Hakam Rai is having his own separate ration-card. He further admitted that the ration-card of Hakam Rai is on the address of House No. 1609, Ward No. 4, Gidderbaha, whereas his other brother namely Mohinder Pal is residing in Mohalla Thakar Dass in Ward No. 1 his brothers namely Ramji Dass, Bhim Sain and Joginder Pal reside at Ratia and are separate in residence and mess, and his brother, Sham Lal is residing in Bantabad in Gidderbaha. The statement of Ramesh Kumar has been relied upon by the appellate Authority to come to the conclusion that the brothers are separate in residence and mess and the tenants have failed to prove that there is Joint Hindu Family Business. The statement of Hakam Rai who appeared as RW-1 has also been taken into consideration. In his statement, Hakam Rai admitted that Mohinder Pal is selling Pan - Beedi in a separate Khokha which is situated on one side of the road. Though he stated that his business is joint, but no evidence worth the name has been brought on record that the brothers have been pooling together the income from the business which they are carrying on in separate premises. It has also came on record that Hakam Rai has shifted to Ratia where he has been allotted a Khokha in which he is running has own business. As against this evidence, there is nothing to show that the possession of Ramesh Kumar is not exclusive. Therefore, the finding recorded by the appellate Authority in that behalf being a finding of fact, deserves to be accepted.
5. So far as valuable consideration is concerned, counsel for the petitioner has cited judgments in Krishnawanti v. Hans Raj, 1995 R.C.J. 164 and Ram Dhan Sharma v. Bishan Samp Mittal and Anr., 1994(1)106 P.L.R. 492 for the proposition that there cannot be sub-letting between the tenants and sub-tenant except for valuable consideration. There is no dispute with this proposition. The question then arises as to how the landlord can prove that parting of possession by the tenants is for valuable consideration in cases where the tenants and alleged subtenant happen to be close relations of brothers inter- se as in the present case. In such cases it is very difficult to prove the passing of valuable consideration because sub-letting is generally a secret arrangement between the tenant and sub-tenant and that is why, onus is on the tenant to show as to in what capacity the alleged sub-tenant is in occupation of the premises. Therefore, where in a given case the existence of valuable consideration cannot be proved expressly, it can certainly be inferred from other circumstances. In the present case there is one strong fact which cannot be controverted. The plea taken by the tenants in their written statement was that they form Joint Hindu Family business and Ramesh Kumar is one of the coparceners, but it has come in evidence that the brothers do not form joint Hindu Family rather they are separate in residence and mess and they are carrying on separate business in separate premises. It is difficult to imagine that Hakam Rai and Mohinder Pal i.e. tenants who are carrying on separate business, one of them at Ratia and the other in a Khokha on the side of the shop in dispute, would have parted with possession without any consideration. In such like circumstances, this Court in Hans Raj and Anr. v. Naval Kishore and Ors., 1986(2) R.L.R. 90 ordered ejectment of the tenant as it found that the tenant had executed a rent note in his individual capacity and not on behalf of joint Hindu Family and was having separate residence mess and business.
6. Learned counsel for the petitioners cannot seek assistance from the cases cited by him as they were decided on their own facts and are distinguishable. In Jagdish v. Ved Parkash Pun and Anr., 1990(2) R.C.R. 372 the tenant at the time of taking shop on rent was in Army Service. He got the shop in dispute on rent on the assumption that he would resign from the military service, but later when he submitted his resignation, it was never accepted and there fore he continued in the military service. His brother conducted the business in the tenanted premises on his behalf for 10 years before the petition for ejectment came to be filed. On these facts it was held that there was no sub- letting by the tenant in favour of his brother. In Syed Feroze Ali Shah v. Syed Jamil Ali Shah and Anr., 1980(2) R.L.R. 549 it was alleged by the landlord that the tenant had bifurcated the shop in two parts by constructing a wall and one part had been sub-let to his brother and in the other part he was carrying on his own business. However, on a reading of the rent note, it was found that one shop was not given on rent out two shops were given on rent and challenged sub-tenant was also found to be in possession of the shop in his own name in some other bazar. It had also been found that the brother had been living jointly, whereas in this case on the showing of the tenants them selves, it stands proved that they are not living jointly, but are separate in residence, mess as well in business. In Shri Chand Gupta v. Gulzar Singh and Anr., (1992) 1 S.C.C. 143, to give a finding of sub-tenancy the Rent Controller as well as the Rent Tribunal faulted upon the admission of alleged sub-tenant made in an affidavit before the income-tax authorities. The High Court did not accept this finding and the Apex Court too found that the affidavit to which the tenant was not a party is in admissible in evidence and once this is excluded, there is no other evidence worth-accepting to prove that the sub-tenant was in exclusive possession.
7. Thus, from the above circumstances it stands proved that it is a clear case of sub-letting and the finding of the appellate Authority in this regard calls for no interference.
8. Consequently, this revision petition fails and is dismissed with no order as to costs. However, the petitioners are allowed three months' time to vacate the premises, provided all the arrears of rent if any, and the advance rent for three months, are deposited with the Rent Controller within one month with a further undertaking in writing that after the expiry of said period the premises would be vacated and the vacant possession thereof would be handed over to the landlord.