Rajasthan High Court - Jaipur
Ghisa Lal Son Of Late Shri Nathuram vs Tapadia Bagichi Trust on 25 April, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2648/2020
1. Ghisa Lal Son Of Late Shri Nathuram, Aged About 69
Years, Resident Of At Tapadia Bagichi, Station Road,
Sikar, Tehsil And District Sikar (Rajasthan).
2. Puranmal Son Of Late Shri Nathuram, Aged About 67
Years, Resident Of At Tapadia Bagichi, Station Road,
Sikar, Tehsil And District Sikar (Rajasthan).
----Defendant-Tenant-Non-Applicant-Appellant/Petitioners
Versus
1. Tapadia Bagichi Trust, Registered Public Trust, Sikar
Through Its Executive Trustee, Tapadia Bagichi, Station
Road, Sikar, Tehsil And District Sikar (Rajasthan).
2. Vijay Kumar Son Of Late Shri Shiv Bhagwan, Aged About
47 Years, Alleged Executive Trustee Of Tapadia Bagichi
Trust, Tapadia Bagichi, Station Road, Sikar, Tehsil And
District Sikar (Rajasthan)
3. Girija Shankar Son Of Late Shri Madan Lal, Aged About
57 Years, Alleged Trustee Of Tapadia Bagichi Trust, R/o
Near Ghantaghar, Jalano Ki Gali, Sikar, Tehsil And District
Sikar (Rajasthan).
4. Shankar Lal Son Of Shri Ramvallabh, Aged About 57
Years, Resident Oftapadia Bagichi, Naya Sahar, Sikar,
Tehsil And District Sikar (Rajasthan).
----Plaintiff-Non-Applicant-Respondents
For Petitioner(s) : Mr. Shiv Charan Gupta with
Mr. Birdhi Chand Meena
For Respondent(s) : Mr. Ripunjay Sharma with
Mr. Rudraksh Sharma
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
25/04/2022
This writ petition under Article 227 of the Constitution of
India has been preferred by the petitioners/non-applicants/tenants
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against the judgment and recovery certificate dated 04.11.2019
whereby, the learned Appellate Rent Tribunal, Sikar has dismissed
the Appeal No.20/2012, CIS No.42/2014 preferred by the
petitioners against the judgment dated 21.05.2012 passed by the
learned Rent Tribunal, Sikar in Eviction Petition No.13/2004
whereby, the rent application filed by the respondents-applicants
was partly allowed.
The facts in brief are that the respondents-applicants filed a
rent application under Sections 6 & 9 of the Rajasthan Rent
Control Act, 2001 (for brevity, "the Act of 2001") against the
petitioners/tenants seeking revision of rent and eviction from the
suit-premises comprising of two shops; i.e., eastern and western
shop on the grounds of subletting (Issue No.2), denial of title and
non-user (Issue No.4). The learned Rent Tribunal, Sikar vide its
judgment dated 21.05.2012 granted recovery certificate qua the
grounds of subletting and non-user which was unsuccessfully
challenged by the petitioners by way of an appeal which came to
be dismissed by the learned Appellate Rent Tribunal, Sikar vide its
judgment dated 04.11.2019.
Learned counsel for the petitioners contended that
indisputably, the respondents have filed a suit for eviction under
the Rajasthan Premises (Control of Rent and Eviction) Act, 1950
(for brevity-`the Act of 1950') wherein it was alleged that the
tenant was trying to sub-let the premises which came to be
dismissed as withdrawn by the learned trial court vide order dated
29.11.2003 and the present rent application was filed on
20.12.2003, i.e., within a short span thereafter with averment that
the property was sublet. He submitted that in the aforesaid
circumstances, it was apparent that the plea of sub-letting was
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false. He submitted that the learned Rent Tribunal erred in
granting recovery certificate on the ground of sub-letting of the
eastern shop in absence of any pleading or proof as to the parting
with its exclusive possession by the tenant and also in absence of
any pleading/proof as to the parting with possession for monetary
consideration, i.e., rent. Drawing attention of this Court towards
the averments contained in the rent application and statement of
Vijay Kumar (AW-1), he contended that it was neither pleaded nor
established by the applicants that exclusive possession of the suit
shop was handed over by the tenant to the petitioner No.2 and it
was so for monetary consideration. Learned counsel asserted that
the learned Rent Tribunal erred in failing to appreciate that it was
a family business which was being taken care of by his brother
and sons and there was no sub-letting. He further contended that
even assuming that the subject property was sub-let, in view of
the fact that it was done so way back in the year 1984 and the
applicants have been receiving rent even for part of the premises
sub-let since long, it would amount to implied consent to sub-
letting. He submitted that the learned Rent Tribunal erred in
deciding the Issue No.2 wrongly placing burden of proof upon
them. He, in this regard, relied upon following judgments:
(1) Celina Coelho Pereira (Ms) & Ors. versus
Ulhas Mahabaleshwar Kholkar & Ors.: (2010) 1
Supreme Court Cases 217.
(2) Shama Prashant Raje versus Ganpatrao &
Ors.: (2000) 7 Supreme Court Cases 522.
(3) Nilesh Laxmichand & Anr. versus Shantaben
Purushottam Kakad (since deceased) by Legal
Representatives: (2019) 6 Supreme Court Cases 542.
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With regard to findings qua Issue No.4, i.e., non-user,
learned counsel submitted that the applicants failed to establish
that the shop in question was not being used for more than six
months immediately prior to institution of the application.
Referring to the cross-examination of Vijay Kumar (AW-1), learned
counsel submitted that he has admitted therein that he did not
have any documentary evidence to show that the shop in question
was not being used for a period of more than six months. He
submitted that from the evidence on record it was established that
the shop in question was being used as a Godown for the business
carried out by the petitioners in the name and style of "Saini
Variety and Machinery Store" in a Nohra in the vicinity. He further
submitted that findings of the learned Rent Tribunal, though
concurrent, are liable to be interfered with as the same are based
on placing wrong burden of proof upon the petitioners to show
that the shop was not closed for a period more than six months
immediately prior to the institution of the eviction application.
With regard to scope of interference in the concurrent
findings of facts, the learned counsel relied upon following
judgments:
(1) State of Rajasthan & Ors. versus Shiv Dayal &
Anr.: (2019) 8 Supreme Court Cases 637.
(2) Krishna Mohan Kul alias Nani Charan Kul &
Anr. versus Pratima Maity & Ors.: (2004) 9 Supreme
Court cases 468.
He, therefore, prayed that the writ petition be allowed and
the impugned judgment dated 04.11.2019 passed by the learned
Appellate Rent Tribunal be quashed and set aside.
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Per contra, learned counsel for the respondents submitted
that there are concurrent findings of facts recorded by the learned
Rent Tribunals based on cogent material on record which do not
warrant any interference of this court under its limited supervisory
jurisdiction. He submitted that from the pleadings and the
evidence on record the respondents were able to establish both
the grounds; i.e., sub-letting and non-user and hence, learned
Rent Tribunal committed no error in issuing recovery certificate on
these grounds. He, in support of his submissions, relied upon
following judgments:
(1) Suresh Kumar through GPA versus Anil
Kakaria & Ors.: (2018) 1 Supreme Court Cases 86.
(2) Rajendra Vadya versus Appellate Rent
Tribunal, Ajmer (II) & Ors.: (2015) (3) WLC (Raj.)
196.
Heard. Considered.
There is concurrent finding of facts as to sub-letting and non-
user of premises. The learned Appellate Rent Tribunal as well as
the learned Rent Tribunal have recorded a finding, after objective
analysis of the material on record, that the petitioner no.1, the
tenant has parted with possession of the eastern shop to the
petitioner no.2, his brother who was in its exclusive possession. It
has further been held that a part of rented premises, i.e., western
shop was not being used by the petitioner no.1 for a period of
more than six months prior to filing of the rent application.
Contention of the learned counsel for the petitioners that in
absence of any pleading in the earlier suit filed by the respondents
for eviction as to the property having been sub-let which was
withdrawn on 29.11.2003 with institution of the present litigation
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within 23 days thereafter, Issue No.2 could not have been decided
in favour of the respondents, does not merit acceptance. The
earlier suit was instituted in the year 1998 under the Act of 1950
and the same was withdrawn, as is evident from the order-sheet
dated 29.11.2003, to seek remedy under the Act of 2001 which
was made applicable in the municipal area of Sikar by that time.
Thereafter, the present rent application was filed with an averment
that property was sub-let. This Court does not find from the
averements in the rent application or from the cross-examination
of Vijay Kumar (AW-1) that it was their case that the property was
sub-let in the year 1984; rather, the petitioners have come with a
plea that business in the eastern shop in the name and style of
"Mahalaxmi Bartan Bhandar" was being carried out since the year
1984. Even otherwise also, learned counsel for the petitioners
could not satisfy this Court as to how absence of any specific pleading in the earlier suit for eviction filed by the respondents as to sub-letting could deprive them to institute fresh application for eviction on this count.
In so far as contention of the learned counsel that in absence of specific pleading that exclusive possession of a part of the suit premises was handed over by the tenant to a third person and in absence of any pleading that it was done so for monetary consideration, the eviction application could not have been allowed qua the ground of sub-letting, is concerned, suffice is to say that there was categorical pleading in the rent application in consonance with the provision under Section 9(e) which provides as under:
"9. Eviction of Tenants.-
(a) xxxx
(b) xxxx
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(c) xxxx
(d) xxxx
(e) the tenant has assigned, sub-let or otherwise parted with the possession of the whole or part of the premises without the written permission of the landlord;
Explanation.- If it is established that some person other than the tenants is in the exclusive possession of the whole or part of the premises, it shall be presumed that the tenant has either sub- let or parted with the possession of the whole or part of the premises, as the case may be."
In the present case, admittedly, business in the eastern shop was being carried out in the name and style of "Mahalaxmi Bartan Bhandar" which belonged exclusively to the petitioner No.2, brother of the petitioner No.1, the tenant. Although, the petitioner No.1-Ghisa Lal has stated in the examination-in-chief that entire business of Mahalaxmi Bartan Bhandar belongs to him and the same breath, he has also stated that his business and business of all his brothers is common; but, during his cross-examination, he has admitted that business in the name of "Mahalaxmi Bartan Bhandar" was being carried out by Puranmal and his son. He, as well as his brother, have further admitted during their cross- examination that return of the business of Mahalaxmi Bartan Bhandar was being filed by Mr. Puranmal. Mr. Puranmal during his cross-examination as NAW-2 admitted that he was owner of the business in the name of "Mahalaxmi Bartan Bhandar" and its sales tax number was issued in his name. He has further admitted that he conducts business of utensils only with no interference in the business being conducted by the petitioner No.1, his brother.
In view of the aforesaid evidence, the learned Rent Tribunal did not err in recording a finding that eastern shop was sub-let by the petitioner No.1 as it was in exclusive possession of the petitioner No.2, the sub-lettee. This leads to presumption of sub- (Downloaded on 28/04/2022 at 09:42:23 PM)
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In case of Celina Coelho Pereira (Ms) & Ors. (supra) their lordships have held that initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he(tenant) continues to hold legal possession in tenancy premises. In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
In the present case, as already held that on the basis of admission of the tenant and his witness Puranmal, it was established beyond any iota of doubt that the petitioner No.2 Puranmal was in exclusive possession of the eastern shop with which the petitioner no.1 did not have any concern, the learned Rent Tribunal did not err in deciding the Issue No.2 in favour of the respondents.
Contention of the petitioners that business of Mahalaxmi Bartan Bhandar belonged to the petitioner No.1 which was also being taken care of by his brothers and sons, rightly did not find favour with the learned Appellate Rent Tribunal as the evidence was contrary to it.
In view of the findings of the learned Appellate Rent Tribunal that the petitioner no.1 has parted with possession of the eastern (Downloaded on 28/04/2022 at 09:42:23 PM) (9 of 12) [CW-2648/2020] shop which is in exclusive possession of his brother, the petitioner no.2, failure on the part of respondents to establish such parting for monetary consideration is of no help to the petitioners as it was for them to have established the nature of arrangement in between them in which they miserably failed. Their Lordships have, in the case of Vinay Kishore Punamchand Mundhada & Anr. vs. Shri Bhumi Kalpataru & Ors.-(2010) 9 SCC 129, held as under:
"19. It would be impossible for the landlord to prove, by direct evidence, the arrangement between the tenant and sub-tenant. It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. Such arrangement which may have been made secretly, cannot be proved by affirmative evidence and in such circumstances, the Court is required to draw its own inference upon the facts of the case proved at the enquiry. Delivery of exclusive possession by the tenant to a stranger to the landlord and without the prior permission of the landlord is one dominant factor based on which the Court could infer as to whether the premises was sub-let.
20. What remains for our consideration is as to whether the High Court properly understood the ratio of the decision in Bhairulal (supra). In the said case, the High Court clearly held that on the basis of the evidence of the landlord himself, it was not possible to say that the tenant has parted with legal possession of the portion of the premises in question to the alleged sub-tenant. On the other hand, it was apparent that though the alleged sub- tenant has been working on the sewing machine located in the premises where the tenant himself has been carrying on his business in clothes in the disputed premises. The High Court in the said decision clearly held that mere use by other person is not parting with possession so long as tenant retains the legal possession himself. We fail to appreciate as to how the ratio of the said judgment is applicable to the fact situation on hand."
Submission of the learned counsel for the petitioner that receipt of rent of the entire suit premises by the respondents (Downloaded on 28/04/2022 at 09:42:23 PM) (10 of 12) [CW-2648/2020] despite having knowledge of its sub-letting since the year 1984, does not merit acceptance for the reasons; firstly, it could not be established by the petitioners that it was done so in the year 1984; secondly, it also could not be established that the respondents were having knowledge of such sub-letting since that time and thirdly, in view of the established legal principle that even acceptance of the rent of the portion sub-let does not amount to waiver of the right to seek eviction on this count. In this regard, in the case of Pulin Behari Lal vs. Mahadeb Dutta & Ors.-(1993) 1 SCC 629, the Hon'ble Apex Court has held as under:
"The only question on which Guha, J. held in favour of the tenant appellant was that the rent having been accepted after the knowledge of sub- letting, the natural inference from this conduct would be that the landlords had waived the right of claiming eviction against the tenant. In our view in the, facts and circumstances of the present case the aforesaid view taken by Guha, J. is not correct.
Mere knowledge and/or acceptance of rent cannot defeat the landlord's right to get a ; decree for ejectment on the ground of sub-letting. If the view was contended on behalf of the appellant is accepted the provisions of both the above Sections 13 and 16 would become nugatory. There is a clear mandate in Section 13(1)(a) that the protection against eviction to the tenant shall not be available in case the tenant transfers, assigns or sublets in whole or in part the premises held by him without the previous consent in writing of the landlord."
In the case of Ram Saran vs. Pyare Lal & Anr.-(1996) 11 SCC 728, their Lordships have held as under:
"25. The Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in (Downloaded on 28/04/2022 at 09:42:23 PM) (11 of 12) [CW-2648/2020] the name of the registered society, will not create a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. It is nobody's case that the landlord has given any written consent for induction of sub-tenant. There is no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub-tenancy in favour of the registered society. Consequently, landlord will not be stopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority."
The Court is in respectful agreement with the law laid down by the Hon'ble Apex Court of India in cases of Shama Prashant Raje (supra) & Nilesh Laxmichand & Anr. (supra); but, since in the present case, the respondents have been able to establish from the evidence on record that eastern shop was sub-let by the petitioner No.1 to his brother, who was in its exclusive possession, the findings do not require any interference.
With regard to ground of non-user, it has been specific case of the petitioners that business in the name and style of "Saini Gift Center", for the purpose it was taken of in the year 1975, was still being carried out in the western shop; but, they could not establish the same. Even, during course of the arguments, it has been contended by the learned counsel for the petitioners that they are using the shop in question as Godown for their business being conducted in the name of "Saini Variety and Machinery Store" which, indisputably, is being carried out from a Nohra given shape of a showroom, in the vicinity. Learned Appellate Rent Tribunal has, after appreciating the documentary evidence submitted on behalf of the petitioners, recorded a categorical finding that all the documentary evidence is the name of "Saini (Downloaded on 28/04/2022 at 09:42:23 PM) (12 of 12) [CW-2648/2020] Variety and Machinery Store" and not a single document pertains to business in the name of "Saini Gift Center".
In these circumstances, in the backdrop of pronouncements by the Hon'ble Apex Court of India as also of this Court that once the landlord is able to discharge his initial burden of proof as to non-user of the rent premises for a period extending six months, it is for the tenant to establish that the rented premises were being used so, in the considered opinion of this Court, learned Appellate Rent Tribunal has rightly decided the Issue No.4 in favour of the respondents.
The findings recorded by the learned Appellate Rent Tribunal are based on appreciation of the material on record which do not suffer from any patent jurisdictional error and/or perversity warranting interference of this Court under its limited supervisory jurisdiction vide Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed being devoid of merit.
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