Rajasthan High Court - Jodhpur
Shankar Lal vs Lrs Of on 14 March, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 15/2019
Shankar Lal S/o Shri Hanuman Prasad, Aged About 73 Years, By
Caste Mehariwala, Resident Of Behind Ozhon Ki Bagechi, Ward
No.2, Churu (Raj.).
----Petitioner
Versus
1. Lrs Of, Satya Narayan
2. Vishnu Kumar S/o Late Satya Narayan Toshan (Sharma),,
By Caste Brahman, Resident Of Kanheyalal Bagla Marg,
Near Subhash Chowk, Churu (Raj.)
3. Kamla Devi D/o Late Satya Narayan Toshan, W/o
Radhesshaym Sharma,, Resident Of Megha Enclave,
Fourth Floor, Tarun Nagar, Gouhati (Assam).
4. Santosh Devi D/o Late Satya Narayan Toshan, W/o
Shankar Lal Sharma,, Resident Of Sharma Hotel, Station
Road, Sawaimadhopur (Raj.).
5. Munni Devi D/o Late Satya Narayan Toshan W/o Shri
Sanwarmal Sharma,, Resident Of Nau- Parkhi Road,
Tinsukhiya (Assam).
6. Krishna Devi D/o Late Satya Narayan Toshan, W/o Shri
Yogesh Sharma,, Resident Of Behind Krishi Upaj Mandi,
Sikar (Raj.).
----Respondents
For Petitioner(s) : Mr. Kishan Bansal
For Respondent(s) : Mr. Nitin Trivedi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 14/03/2019
1. The petitioner has preferred this writ petition for the following reliefs :
"by an appropriate writ, order or direction, impugned judgment and Eviction Certificate dated 08.10.2018 (Annex.9) passed by learned Appellate Rent Tribunal, Churu may kindly be quashed and set aside."
2. The facts of the case in brief are that the father of respondents-applicants/landlord filed an application under Section 9(D)(E) & (J) of the Rajasthan Rent Control Act, 2001 for eviction (Downloaded on 30/06/2019 at 02:32:01 AM) (2 of 6) [CW-15/2019] of shop before the learned Rent Tribunal, Churu, wherein it was alleged that he had given his shop situated at Toshan Samriti Bhawan, Bagla Higher Secondary School, Churu to the petitioner/tenant on rent since April, 2009 @ Rs.388/- per month. In the suit it was claimed that the tenant-petitioner without consent of landlord handed-over possession of the shop in-question to one Mahesh Kumar Agarwal, who is using it as a godown. The respondent-landlord gave notice in this regard but since vacant possession was not given, hence, legal proceedings were initiated. The respondent filed 'Kirayanama' dated 29.10.1978 and report of Assistant Commissioner, Commercial Taxes Officer, Churu dated 10.12.2008 alongwith his petition. The petitioner-tenant denied handing over possession to Mahesh Kumar by way of sub-letting. It was further averred that Mahesh Kumar is his son, who is helping him in his business and they are residing together as joint Hindu family and is doing business in the name of his son. The petitioner-tenant submitted that he has three shops and all the three shops are running under his guidance.
3. Counsel for the petitioner submits that sub-letting was a false presumption drawn by learned appellate court and actually no possession of shop in-question was never sub-let, thus, the petitioner-tenant was not amenable to eviction on the ground of sub-letting. The Rent Tribunal, Churu had in fact passed judgment in favour of petitioner on 05.1.2011, against which, an appeal was preferred by the landlord and eviction degree was passed by learned Appellant Rent Tribunal, Churu in favour of respondent- (Downloaded on 30/06/2019 at 02:32:01 AM)
(3 of 6) [CW-15/2019] landlord vide judgment dated 08.10.2018. Counsel for the petitioner has relied upon the following judgments :-
(1) Smt. Laxmi @ Anandi & Ors. Vs. C. Setharama Nagarkar reported in AIR 1996 SC 268.
(2) Basanti Lal Vs. Ram Chander & 3 Ors reported in 2009(1) DNJ (Raj. 429.
(3) Binj Raj Vs. Sukhdeo & Anr., reported in 2006(2) DNJ (Raj.) 868 (4) M/s. Delhi Stationers and printers Vs. Rajendra Kumar reported in AIR 1990 SC 1208.
4. Counsel for the petitioner further submits that the judgment of Appellate Rent Tribunal, Churu is erroneous inasmuch as the burden of proof of sub-letting the shop in-question and the conclusions drawn by the Appellate Rent Tribunal are without any basis. Counsel for the petitioner-tenant further submits the learned Appellate Rent Tribunal has erred in not considering the fact that Mahesh Kumar & Prabhu Dayal are sons of petitioner and are members of joint Hindu family and because of enlargement of family the petitioner extended his business in the name of his sons, however, overall control of business is in the hands of petitioner, who being the head of family. Counsel for the petitioner further argued that to prove issue of sub-letting two ingredients are must (i) absolute possession is handed over to the sub-tenant and (ii) tenant is receiving rent from sub-tenant but in the instant case no finding has been recorded by the learned Appellant Rent Tribunal.
5. Counsel for the respondent refuted the arguments and harped upon the point of sub-letting, which was proved by (Downloaded on 30/06/2019 at 02:32:01 AM) (4 of 6) [CW-15/2019] documents and relied upon the judgment rendered in M/s. Ashish Enterprises, Faridabad & Ors. Vs. M/s. Kochhar Industries, New Delhi reported in AIR 1999 Punjab and Haryana 247 as also the judgment of Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) by LRs reported in AIR 1988 SC 3214 relevant para whereof reads as follows :
"13. To restate in the present case facts do not show that Bakerali could exercise his power throughout the suit premises at his pleasure to the exclusion of his two sons who were running their business in partnership there and it cannot be said that he continued to exercise control over the suit premises. Bakerali had no concern with the partnership business now being carried on under the partnership deeds dated November 14, 1974 and March 6, 1979 in the suit premises. In the absence of records of the partnership business which the respondents failed to produce, it has to be presumed that rent was paid by one of the sons of Bakerali in the new partnership from the partnership account. It is now the sons of Bakerali who are in complete control of the suit premises and were exercising exclusive possession for the same to the exclusion of Bakerali. That Bakerali would occasionally visit the shop premises does not advance the case of the respondents that he could exercise his rights over the shop premises. He had handed over the shop premises to his sons who were exercising their independent right over the same and conducting their business thereat. Bakerali completely divested himself of the suit premises as well as the business. Clause (7) of the first partnership deed dated November 15, 1955 negatived any contention that Bakerali had taken the suit premises on lease for the benefit of the family. Bakerali never paid refit of the shop premises which, as noted above, was paid from the partnership of his two sons. Bakerali was not exercising any physical control over shop premises. Record does not show that he had either the power or the intention at any given time to exercise his right of possession (Downloaded on 30/06/2019 at 02:32:01 AM) (5 of 6) [CW-15/2019] over the shop premises. It cannot even be said that he was exercising control over the shop premises through his sons who were carrying on their independent business in the shop premises and paying rent therefor. Bakerali was neither in physical nor in actual or constructive possession of the shop premises. Physical control over the shop premises was now exercised by his two sons to the exclusion of Bakerali. It is not that Bakerali could just walk in and assert his right of possession to the shop premises. His sons: were not in occupation of the shop premises and running their business as agents of Bakerali. We do not think that High Court in the present case approached the question raised in the revision before it properly. It relied on the judgment of his Court in Jagan Nath's case [1988] 3 SCC 57, which was under the provision of Delhi Rent Control Act and was confined to the facts of that case which were not applicable in the present case.
14. We, therefore, set aside the impugned judgment of the High Court and restore that of the Judge, Small Causes Court and Joint District Judge, Baroda. We grant six months' time to the respondents to vacate and hand over the possession of the suit premises to the appellant subject to his filing the usual undertaking in this Court in four weeks. The appeal is allowed with costs."
6. After hearing learned counsel for the parties and perusing record of case while dealing with the ground of sub- letting the precedent law laid down by Hon`ble Supreme Court in Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) by LRs (supra) is clearly applicable in the present case. The operative part of appellate court's judgment clearly records that no document has been produced by petitioner to show that Shankar Lal was engaged in business alongwith his sons Mahesh Kumar and Prabhu Dayal. No ration card showing joint Hindu family was ever produced by petitioner. The learned Appellate Rent Tribunal (Downloaded on 30/06/2019 at 02:32:02 AM) (6 of 6) [CW-15/2019] has recorded that the tenant-petitioner has in fact failed to establish the defence of sub-letting which could have been a joint family property. No books of account showing joint business or pass-book of bank account was produced. The licence of shop in- dispute (Exhibit-20) issued by Commercial Taxes Department has been issued in favour of Mahesh Kumar as Proprietor. Thus, the reasons given by the learned Appellate Rent Tribunal, Churu are in fact correct and the judgment shown by the respondent i.e. Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) by LRs (supra) clearly holds the tenant-father will be exclusive proprietor and owner of the business and if a subsequent partnership between the sons was executed or any other new business started and even the tenant-father occasionally visiting does not allow him to exercise his rights over the shop. Thus, the sons who were independently conducting their business would entitle the landlord for decree of eviction.
7. For the aforesaid reasons no interference is called for. However, the petitioner shall have three months time for vacating and handing-over possession of the suit premises subject to his filing usual undertaking.
(Dr. PUSHPENDRA SINGH BHATI), J.
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