Punjab-Haryana High Court
Victor Kumar vs Shakuntla Devi And Ors. on 21 September, 1994
Equivalent citations: (1995)109PLR208
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. This is a tenant's revision petition against the order of the appellate authority ordering ejectment of the tenant thereby setting aside the order of the Rent Controller dismissing the petition for ejectment filed by the landlord-respondent (hereinafter referred to as the landlord.
2. The tenanted premises is a shop situated in Main Bazar, Faridkot, which was let out to Sham Lai by the Landlord. Sham Lal has since died and represented by his son Victor Kumar. The ejectment petition was filed on 30.9.1980 on the following three grounds :-
(i) User of the shop in dispute has been changed from shoe business to cloth business;
(ii) impairment of value and utility of the shop in dispute and
(iii) Subletting of the premises in dispute to Nem Nath brother of Sham Lal after his death.
3. The tenant after notice put in appearance and filed written statement denying all the averments made in the petition.
4. From the pleadings of the parties, the following issues were framed :-
1. Whether the tender made by the respondent is not valid? OPP.
2. Whether the respondents have changed the user of the premises in dispute? OPP.
3. Whether the respondents impaired the utility and value of the premises materially ? OPP.
4. Whether the respondents have sublet the shop to Nem Nath ? OPA.
5. Relief.
5. Rent Controller dismissed the ejectment petition deciding all the issues against the landlord. Landlord filed an appeal before the appellate authority. Before the appellate authority all other grounds except the ground of sub letting were specifically given up. The appellate authority accepted the appeal and held that after the death of Sham Lal, the original tenant, the possession of the shop in dispute was handed over to his brother Nem Nath which amounted to sub letting. The ground for subletting was thus accepted. The tenant was ordered to be evicted from the premises in dispute. Aggrieved against the said order of the appellate authority, the tenant has filed the present revision petition.
6. Since the only ground which survives for consideration is regarding subletting, the reference to the facts is being made only with regard to this ground from the pleadings. It was pleaded that after the death of Sham Lal, the premises were sublet to Nem Nath brother of Sham Lal who was running the cloth business; that the tenant had parted with the possession of the shop to Nem Nath who was in exclusive possession of the shop and that the legal representatives of Sham Lal have no concern with the shop in dispute.
7. Nem Nath also died. The legal representatives of Sham Lal and the legal representatives of Nem Nath filed their separate written statement. The plea taken by them was identical. It was denied that the premises were ever sublet to Nem Nath; that the possession remained with the heirs of Sham Lal deceased; that Nem Nath being the uncle of the legal representative of Sham Lal might have come to the shop for assisting them but it was wrong that they had parted with the possession of the shop; that the possession and management of the shop remained with Sham Lal during his life time and his legal representatives took over the possession and business of the shop in dispute after the death of Sham Lal deceased. Nem Nath deceased had nothing to do with the tenancy in its possession.
8. In support of the petition Managat Ram landlord stepped in the witness box as PW-1 whose statement on this point reads as under :-
"...After death Sham Lal gave shop in question to Nem Nath who kept working for about 3/4 years. Now a days son of Sham Lal works in the shop. Nem Nath was working and was in possession of the shop all alone."
The only other witness who stepped in the witness box to support the version of the landlord is AW2 Panna Lal who stated that after the death of Sham Lal his younger brother Nem Nath occupied the shop and was doing cloth business. As against this, Victor Kumar son of Sham Lal stepped in the witness box as R.W.I. He stated that after the death of his father Sham Lal, he along with his brother and widowed mother remained in possession of the shop in dispute, that Nem Nath was never put in possession and only assisted them in their business. Reliance by the tenants was also placed on receipt Ex. R4 executed by the landlord on 20.11.1978 stating therein that he had accepted the rent from Victor Kumar his younger brother and his widowed mother. This is the entire evidence led by the parties relevant on the point.
9. I have heard the counsel for the parties at length.
10. From the reading of the evidence it cannot be concluded that Nem Nath was ever put in possession of the premises in dispute exclusively. Statements of Mangat Ram A.W. 1 and Panna Lal AW2 do not make out a case that the legal representatives of Sham Lal ever parted with exclusive possession of the shop in dispute to Nem Nath. Admittedly Victor Kumar and his younger brother were minors when their father died in the year 1976. Nem Nath may have started coming to the shop to help his nephew for running of the shop but that does not mean that he came into exclusive possession of the shop in dispute. Even if Nem Nath was called into join the business after the death of his brother Sham Lal to carry on the business on behalf of his minor nephew would not mean that a sub tenancy had been created. Nem Nath may have helped Victor Kumar in running the business, after the death of Sham Lai Ex. R4 is the receipt dated 20.11.1978 executed by the landlord stating therein that he accepted the rent from Victor Kumar his minor brother and his widowed mother... meaning thereby that he accepted them to be the tenants upto 20.11.1978. The present petition was filed in the year 1980. The two witnesses produced by the landlord do not in their statement categorically state that Nem Nath was put in the exclusive possession of the shop in dispute to the exclusion of the legal representatives of Sham Lal. Appellate Authority drew an inference against the tenants because they had failed to produce their books of accounts to show as to on what terms Nem Nath was working in the shop in dispute i.e. on salary or on profit sharing in the business. No question was asked from Victor Kumar as to whether they were assessees with the Department of Income Tax or not. Even if the books of account were not produced still no inference can be drawn from this lapse only on the part of the tenants that they had parted with the exclusive possession of the shop in dispute, to Nem Chand.
11. For the reasons recorded, I am satisfied that exclusive possession of the shop in dispute was not parted with by the legal representatives of Sham Lal in favour of Nem Nath. No sub tenancy came into existence on the facts and circumstances of this case.
12. Revision petition is allowed, the impugned order of the appellate authority is set aside and that of the Rent Controller restored dismissing the petition filed by the landlord for ejectment with no order as to costs.