Allahabad High Court
Shankar Lal Son Of Shri Ganga Prasad ... vs Vith Addl. District Judge, Judge Small ... on 18 May, 2006
Equivalent citations: 2006(4)AWC3322
JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for both the parties.
2. This is tenant's writ petition arising out of a suit (SCC suit No. 110 of 1979) filed by landlord-respondent No. 3 Mahesh Narain against him for eviction and recovery of arrears of rent. Eviction was mainly sought on the ground of subletting. Property in dispute is of such nature that it may either be described as consisting of two shops or one shop having two khans (portions). Manner of description will not make the least difference on the merit of the case.
3. It was alleged in the plaint that tenant-petitioner - Shankar Lal had sublet one of two shops or one of the two portions of the shop to Suraj Pal. It is strange that Suraj Pal the alleged subtenant appeared as witness of the landlord and alleged that for a short period in between 1978-79 Shankar Lal had sublet part of the accommodation in dispute to him.
4. According to the tenant he never sublet part of the accommodation to Surajpal who was only his munim and his services had been terminated on 23.5.1979. An intimation of the said fact had also been given to Mandi Parishad on 24.5.1979. JSCC/Munsif, Anoopshahar District Bulandshahar found that subletting had been proved and decreed the suit for eviction through judgment and decree dated 19.4.1979. Decree for recovery of arrears of rent was also passed. However, suit was not decreed on the ground of default as tenant had deposited the entire requisite amount on 1st date of hearing and prior to that he had deposited the rent under Section 30 of U.P. Act No. 13 of 1972. Against judgment and decree passed by the trial court tenant-petitioner filed SCC revision No. 21 of 1989. VIth A.D.J., Bulandshahar through judgment and order dated 27.8.1992 dismissed the revision hence this writ petition.
5. Surajpal the alleged sub-tenant who had appeared as witness of the landlord stated in his oral statement that since November 1978 till August 1979 he had done the business of selling clothes from the eastern shop and that he had applied for license of the said business in June 1979. Surajpal stated that Vijendra son of the tenant forcibly got the shop vacated from him. Some criminal litigation also took place in between the two in August 1979. However, in the plaint of the suit which was filed on 9.12.1979 there was no mention that Surajpal had left the shop. The trial court recorded the finding of subletting on the ground that it was proved that for few months Surajpal was doing cloth business from the shop in dispute independently.
6. It is correct that in most of the cases exclusive possession of a third person over the tenanted accommodation is sufficient to prove subletting. However, in certain cases mere presence of a third person is not sufficient to draw the said inference. This aspect has been dealt with by the Supreme Court in Jagdish Prasad v. Smt. Angoori Devi. In the said authority the finding of subletting recorded by the JSCC had been reversed by the revisional court. However, High Court in exercise of writ jurisdiction reversed the judgment and order of the revisional court on the ground that revisional court had interfered in findings of fact. Supreme Court reversed the findings of High court as well as of the trial court and restored the order of revisional court (A.D.J.).
7. In the instant case it is un-disputed that until May 1979 Surajpal was employee of tenant petitioner and that in August 1979 there was a serious dispute in between Surajpal and son of the tenant resulting in initiation of criminal proceeding and since then Surajpal was not in possession.
8. Revisional court took the statement of Surajpal in respect of subletting to be binding upon the tenant as if he was witness of the tenant.
9. In view of all the above facts and circumstances it cannot be said that tenant-petitioner sublet the portion of the accommodation in dispute to Surajpal. There is no legal evidence to prove subletting.
10. Accordingly I find that the finding of subletting recorded by both the courts below as erroneous in law and liable to be set aside.
11. Writ petition is therefore, allowed. Judgment of the courts below, decree of the trial court and order of the revisional court in respect of eviction are set aside. Suit is dismissed for the relief of eviction.
12. I have held in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act writ court is empowered to enhance the rent to a reasonable extent. The property in dispute is in the form of two shops and is situate in Debai which is very important town of District Bulandshahar. Rent of Rs. 25/- per month is virtually as well as actually no rent. Accordingly, it is directed that with effect from June 2006 onward tenant-petitioner shall pay rent to the landlord-respondent at the rate of Rs. 1,000/- per month inclusive of water tax etc. No further amount shall be payable by the tenant.