Punjab-Haryana High Court
Hanuman Ji Ka Bara Mandir vs Nagar Mal And Anr. on 19 May, 2004
Equivalent citations: (2004)138PLR80
Author: N.K. Sud
Bench: N.K. Sud
JUDGMENT N.K. Sud, J.
1. This civil revision is directed against the order of the Appellate Authority dated 26.7.1988 whereby the appeal filed by the petitioner landlord against the order of the Rent Controller, Sirsa dated 1.12.1986 has been dismissed.
2. Petitioner filed an application under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short the "Act") seeking eviction of the respondents Nagar Mal and Ram Kumar from the disputed shop. It was claimed that the petitioner being the owner of the shop had inducted Nagar Mal as a tenant therein at a monthly rent of Rs. 250/- vide Rent Deed dated 23.8.1979. It was further claimed that Nagar Mal, respondent No. 1 had not paid the arrears of rent of the demised shop with effect from 1.3.1983 and that he had also parted with its possession in favour of Ram Kumar, respondent No. 1 without its written consent. The ejectment of the respondents was, therefore, sought on the grounds of non-payment of arrears of rent and subletting.
3. Nagar Mal admitted the claim of the petitioner by stating that he could not pay the rent for the disputed period. He further took the stand that he kept the shop with him for some days only as his father expired soon thereafter and hence he could not manage the business in the disputed premises. He, therefore, admitted to have handed over its possession to Ram Kumar after receiving rent from him. He further admitted that he had not sought the written consent of the landlord before subletting the disputed property.
4. The application was, however, contested by Ram Kumar, respondent No. 2, who claimed that the shop in dispute was never let out by the petitioner to Nagar Mal. He further took the stand that he himself was in possession of the disputed shop for the last many years. He claimed to have raised the construction of the shop on an open space where he was earlier selling fire wood. He, claimed himself to be the owner of the disputed premises. He also stated that a civil suit for declaring him the owner of the disputed property on account of adverse possession had been filed by him which was pending in that very Court. He also challenged the Rent Note allegedly executed by the landlord in favour of Nagar Mal by terming it as a fictitious and sham document.
5. On the pleadings of the parties, following issues were framed:-
1. Whether respondent No. 2 is liable to be evicted from the premises in dispute on the grounds mentioned in the application? O.P.A.
2. Whether the Rent Controller has no jurisdiction to try the present application? O.P.R.
3. Relief.
6. The Rent Controller dealt with issue Nos. 1 and 2 together and decided both of them favour of respondent No. 2 Ram Kumar holding that there was no relationship of landlord and tenant between the parties and Nagar Mal and consequently he had no jurisdiction to pass an order of eviction against Ram Kumar.
7. Aggrieved by the said order, petitioner filed an appeal before the Appellate Authority, Sirsa, who vide the impugned order dated 26.7.1988, has upheld the findings of the Rent Controller that the shop in dispute had never been rented out to Nagar Mal and that Rent Note dated 23.8.1979, Exhibit A-1, was a fake document which had been brought into existence to seek eviction of Ram Kumar.
8. It may also be mentioned that during the course of appellate proceedings the petitioner had filed an application for producing copy of the judgment dated 4.12.1987 vide which Sub Judge, 1st Class, Sirsa had dismissed the suit filed by Ram Kumar claiming ownership of the disputed property by adverse possession. This prayer was not granted by the Appellate Authority on the ground that dismissal of the suit had no bearing in determining the matter whether the shop in dispute was rented out to Nagar Mal or not. Similarly, another prayer for producing one writing dated 23.8.1979 to show that before letting out the shop to Nagar Mal, the petitioner had been approached by Ram Kumar, respondent No. 2 for taking it on rent. This prayer was also rejected on the ground that if it was not shown that the additional evidence was not in the knowledge of the landlord, or that even after exercising due diligence, the said evidence could not be produced earlier. Thus the writing dated 23.8.1979 was not allowed to be produced.
9. Mr. R.S. Mittal, Senior Advocate appearing on behalf of the petitioner contended that the findings recorded by both the authorities below that the shop in dispute was never rented out to Nagar Mal and that the Rent Note, Exhibit A-1, was a fake document, are based on misreading of the evidence on record. To substantiate his claim, he pointed out that the Appellate Court has given the following reasons in support of its findings:-
(i) In the Rent Note dated 23.8.1979, Exhibit A-1 it has been mentioned that the electric meter belonging to the landlord was already there in the demised premises and the tenant was liable for making the payment of electricity bills. On the other hand respondent Ram Kumar had produced Subhash Chander, RW-1, who was working as Upper Division Clerk in the Haryana State Electricity Board, who had deposed that Ram Kumar had filed an application for obtaining electric connection in this shop on 21.7.1979 and electric connection was given on 11.10.1979. It was thus observed by the Appellate Authority that the electric connection released on 11.10.1979 could not have possibly been mentioned in the Rent Note executed prior to that date.
(ii) The conduct of Nagar Mal in straightaway admitting the claim of the landlord in the written statement and also in his evidence when he appeared as witness, showed that he was in collusion with the petitioner and that they had made a false story of the shop having been rented out to Nagar Mal by executing the Rent Note merely to get the eviction of Ram Kumar.
(iii) Nagar Mal while appearing in the witness box as AW-3 could not give the dimensions of the shop in dispute nor he could produce any documentary evidence to show that after the execution of the Rent Note he had actually occupied the shop in dispute and started business.
(iv) In his cross-examination, Nagar Mal had stated that he used to maintain account books with regard to his business, but "he had not shown the payment of the amount of Rs. 1,500/- as advance rent of six months in those books".
(v) Wazir Chand, AW-4, General Attorney of die petitioner in his cross-examination had admitted that Mandir was maintaining account books. However, the account books were not produced and, therefore, a presumption arose that no entry with regard to receipt of amount of Rs. 1,500/- as advance rent from Nagar Mal existed in the account books.
10. Mr. Mittal, learned counsel for the petitioner, also contended that the finding recorded by the Appellate Authority regarding the electric connection is based on a misreading of the statement of Subhash Chander, RW-1, Upper Division Clerk of the Haryana State Electricity Board. He pointed out that the Appellate Authority has totally omitted to mention that the application filed by Ram Kumar on 21.7.1979 was for an industrial connection for stalling a Saw Mill. Subhash Chander did not state that prior to that industrial connection, there was no electric connection in the shop in dispute. Similarly, it was contended that the inference drawn by the Appellate Authority from the admission of the claim of the petitioner by Nagar Mal that he had colluded with the petitioner is not supported by any material on record. According to the learned Counsel this finding is totally conjecture. The Appellate Authority has not referred to any connection of Nagar Mal with the petitioner which could possibly prompt him to collude with the petitioner nor has any motive been attributed to him.
11. The learned Counsel has contended that no adverse inference could be drawn from the fact that Nagar Mal in his statement could not given the dimensions of the shop. He pointed out that in the written statement, Nagar Mal had taken the stand that he had kept the demised premises with him only for some days and since his father had expired, he could not manage to do the business in the disputed premises and hence had handed over its possession to Ram Kumar. Thus according to the learned counsel, there is nothing unusual if Nagar Mal, a non-technical person, could not recollect the length and breadth of a shop which he had kept only for a few days. He pointed out that it also stand explained that Nagar Mal had not done any business in the demised premises on account of death of his father and therefore, the observation of the Appellate Authority that he could not produce any documentary evidence to show that after the execution of the Rent Note he had actually occupied the demised shop and started business is totally unwarranted.
12. The learned counsel also pointed out that the observation of the Appellate Authority that Nagar Mal in his cross-examination had stated that he had not shown the payment of Rs. 1,500/- as advance rent in his books of accounts was also factually incorrect. He referred to the statement of Nagar Mal which is available on record to show that no statement had been made. On the other hand, he pointed out that Nagar Mal had clearly stated that be had shown the said payment in his income-tax return. He was neither asked to produce the books of account nor the return of income-tax. Counsel also explained that Wazir Chand, AW-4 in his cross-examination had clearly stated that the accounts of the Mandir were being maintained by Seth Nand Lal and not by him and, therefore, no adverse inference could be drawn against the petitioner presuming that the amount of Rs. 1,500/- received from Nagar Mal had not been entered in the books of accounts. It is an admitted position that Nand Lal was never asked to produce the account books.
13. Mr, Mittal also argued that the Appellate Authority had wrongly declined the petitioner's prayer for producing the judgment and decree passed by Sub Judge, Ist Class, Sirsa dated 4.12.1987, whereby suit of Ram Kumar claiming ownership of the demised shop had been dismissed. He also pointed out that while contesting the claim of the landlord in the present petition, the stand taken by Ram Kumar was that he was in possession of the demised premises for the last many years and had himself raised the construction of the shop in dispute. He thus claimed to be the owner of the disputed premises on the ground of adverse possession and he had clearly stated that he had filed a civil suit for declaring him to be the owner. He, therefore, contended that the judgment of the Civil Court in the said suit was a necessary document which ought to have been taken into consideration. Learned counsel has produced a copy of the judgment dated 4.12.1987 in the said suit, wherein Ram Kumar had been thoroughly discredited. His claim has been rejected not only on the ground that he had failed to lead any evidence to substantiate his claim, but also on the ground that he has been making false and contradictory claims. It has also been held by the Civil Judge that the defendant (petitioner herein) had led sufficient documentary and oral evidence to establish its ownership. According to the Counsel, the said judgment has become final between the parties and thus was very relevant for discrediting the stand taken by Ram Kumar in his written statement filed in the present application for eviction.
14. Mr. Ravi Sodhi, learned counsel for the respondent, on the other hand, supported the orders of the authorities below. He pointed out that both the Courts below have recorded concurrent findings of fact that Nagar Mal had never been inducted as a tenant by the petitioner and that the Rent Note dated 23.8.1979 was a fake document. He, therefore, contended that such concurrent findings of fact cannot be disturbed by this Court in a civil revision.
15. I have heard counsel for the parties and perused the relevant record. It is true that normally concurrent findings of fact cannot be disturbed by this Court merely because on a re-appraisal of evidence, a different finding can be arrived at. However, if the findings of the authorities below are perverse on account of misreading of evidence or for lack of evidence, it would give rise to a substantial question of law for consideration by this Court though the scope of the jurisdiction of this Court would be limited to that extent only. In the present case counsel for the petitioner has pointed out glaring instances to show that the evidence has been misread. There, is nothing on record from which it would be inferred that there was no electric connection in the shop prior to 11.10.1979. The Appellate Authority has drawn this inference from the fact that Ram Kumar had applied for electric connection on 21.7.1979 which was given on 11.10.1979 without appreciating that it was for running a Saw Mill. It certainly could not lead to a presumption that there was no electric connection in the shop before that date. Similarly there is no material on record to support the allegation of collusion between the petitioner and Nagar Mal. It is strange that if Nagar Mal had wanted to tell the truth by admitting the claim of the petitioner, an adverse inference has been drawn against him. There is nothing on record to attribute any motive on the part of Nagar Mal to collude with the petitioner by executing the Rent Note. I am also in agreement with the counsel for the petitioner that the inability of Nagar Mal to give dimensions of the shop cannot be treated as an unusual circumstances. It is not uncommon even for a person living in a property for a long time to give its dimensions. In this case, Nagar Mal had retained possession of the shop only for a few days before handing over its possession to Ram Kumar. It has also been correctly pointed out that the observation of the Appellate Authority that Nagar Mal had stated that he had not shown the payment of Rs. 1,500/-as advance rent in his books of account, is factually incorrect. On the other hand, his claim that he had shown the said payment in his income tax return had gone uncontested. It is also correctly pointed out that Wazir Chand, AW4 had duly explained mat the books of accounts of the Mandir were being maintained by Seth Nand Lal. The authorities below were, therefore, not justified in holding that since Wazir Chand did not produce the books of accounts, it had to be presumed that receipt of Rs. 1,500/-from Nagar Mal had not been accounted for. If the aforesaid infirmities are corrected, there would indeed be no material to support the findings recorded by the Appellate Authority.
16. I am also in agreement with the counsel for the petitioner that the Appellate Authority, was not justified in not allowing the prayer of the petitioner for producing on record copy of the judgment dated 4.12.1987 which would have clearly shown that Ram Kumar had been making false claims of his ownership in respect of the disputed shop. A bare reading of the said judgment, which has since become final, shows that Ram Kumar had made contradictory claims some of which have even been branded as false. Thus adverse inference, if any, has to be drawn against Ram Kumar rather than Nagar Mal.
17. In Kharar Saw Mill Industry and Furniture Production, Industrial Co-operative Society Limited and Anr. v. Prem Kaur (Smt.) and Anr., (1995-3)111 P.L.R. 345, this Court has held that burden of proof is on the landlord initially to prove the fact of sub-letting. However, the landlord is only to prove that in place of the original tenant somebody else is in occupation of the premises, independently. Once that is proved, then it is for the sub-letter to show in which capacity he is occupying the Premises. Similar view has been taken by this Court in Chaudhary Ram v. Liba Sood and Ors., (1998-3)120 P.L.R. 191 and Dharam Pal v. Vinod Kumar and Anr. (2000-2)125 P.L.R. 685.
18. In Santosh Devi and Ors. v. Vir Chand, (1996-1)112 P.L.R. 459 a Division Bench of this Court has held that once parting of possession by the tenant is proved and it is shown the sub-tenant is in exclusive possession, then transfer of possession for a valuable consideration has to be inferred.
19. In the present case, Counsel for the respondents on a specific query from the Bench, could not explain as to how Ram Kumar was in possession of the shop. His claim being the owner on account of adverse possession, already stands negatived: In this view of the matter, the statement of Nagar Mal that he had put Ram Kumar in possession of the shop in dispute and thereby sub-let it, stands proved.
20. In view of the above, I allow the civil revision and set aside order of the Rent Controller dated 1.12.1986 and that of the Appellate Authority dated 26.7.1988. Consequently, the application of the petitioner under Section 13 of the Act is also allowed. Al though the conduct of the tenant Ram Kumar, respondent No. 2, who has been setting up contradictory claims leaves a lot to desire and does not warrant sympathy, but keeping in view the fact that he has been carrying on his business in the shop in dispute, he is given three months time to hand over its vacant possession to the petitioner. In the circumstances of the case, there shall be no order as to costs.