Punjab-Haryana High Court
Jatinder Kumar vs Harmohinder Singh And Others on 2 March, 1993
Equivalent citations: AIR1994P&H60, AIR 1994 PUNJAB AND HARYANA 60, (1993) 2 RENTLR 74, (1993) 2 RRR 664, 1993 PUNJ LJ 395, 1993 HRR 450, (1994) 3 CURCC 326, (1993) 2 RENCR 47, (1993) 2 PUN LR 370
ORDER V. K. Bali, J.
1. This order will dispose of L.P.A. Nos. 1125 and 1126 of 1983, as common question of law and facts are involved in both the appeals.
2. The only question posed for decision is with regard to liability to pay the rent and damages of shop-cum-flat No. 13 in Sector 22D, Chandigarh between appellants Jatinder Kumar and Ramesh Kumar and defendant-respondent Govardhan Lal Kapur.
3. Facts, in brief reveal that plaintiff purchased shop-cum-flat No. 13 Sector 22 on 19-12-1963. Admittedly, the aforesaid premises were taken on rent initially by Jatinder Kumar and Ramesh Kumar with effect from January 1, 1964, vide lease deed dated 19th December, 1963. The said defendants were already in possession of the property and were carrying on business under the name and style of 'Adam and Eve'. The plaintiffs, served noticed dated 7th December, 1968, terminating their tenancy with effect from January 1, 1969. It was clarified in the notice that in case they do not vacate the premises by the date stipulated, they will be charged double the rale of the rent as damages for their use and occupation. It was also stated that in any case, the lease of the premises in question being only for five years, the same was otherwise also to expire by afflux of time, by 31st December, 1968. The defendants did not comply with directions as contained in the notice. This constrained the plaintiffs to institute a suit for recovery of Rs. 28,800/ -, as damages for the unauthorised use and occupation of the shop-cum-flat from 1-1-1969 to 31-12-1969, at the rate of Rs.2,400/-per month, as also recovery of damages from 1-1-1970 up to such time the defendants were to handover the vacant possession or actually evicted from the premises in question, again, at the rate of Rs.2400/- per month. Defendants Nos. 1 and 2, who are appellants in two separate appeals filed written statement and contested the matter. The original lease in their favour was admitted but it was pleaded that on account of disruption in the family business, defendant No. 3 Goverdhan Lal Kapur had taken over the business in the latter part of December, 1965 and Mahan Singh attorney of the plaintiffs recognised the tenancy of the said defendants with effect from 1st October, 1965. Defendant No. 3 as well contested the suit, pleading that the partnership firm Adam and Eve handed over the possession in October, 1965 to him as sole proprietor of the said concern and he took the premises on rent from Mahan Singh on monthly rent of Rs. 1000/ - which was later on increased to Rs. 1200/- per month. He admitted the receipt of notice dated 7th December, 1968 but pleaded that the same was illegal. He also contested the matter on the plea that the attorney of the plaintiffs had waived the notice by accepting the rent after December, 1968.
4. The pleadings of the parties as noticed in brief resulted in the issues as reproduced by the trial Court at page 2 of the judgment and inasmuch as the controversy in the present appeals centres around liability of the defendants inter se to pay the rent or damages as the case may be, it is only relevant issues which deserve to be noticed.
5. Whether the defendants 1 and 2 occupied the premises in suit as tenants under the plaintiffs up to 31-12-1968? OPP
6. Whether the original lease deed stood terminated by the consent and conduct of the parties and a new tenancy with defendant No. 3 came into existence with effect from 1-10-1965? OPD
7. Does defendant No. 3 occupy the premises in suit as tenant under Mahan Singh and not under the plaintiffs? OPD-3.
5. In asmuch as, the aforesaid issues were inter-linked, the same were rightly discussed together by the trial Court. The findings, however, on the said issues was that it is defendant No. 3 Goverdhan Lal Kapur who was to pay the amount of Rs.78,000/- as damages at the rate of Rs. 2,400/- per month for the period 1-1-1969 to 15-9-1971. Suit ag'ainst the appellants i.e. defendants 1 and 2 was dismissed, leaving the parties to bear their own costs.
6. Aggrieved, the plaintiffs agitated the matter by way of Regular First Appeal and the learned single Judge reversed the findings of the trial Court insofar as the same pertained to fixing the liability of Goverdhan Lal Kapur alone and held that the appellants as well are liable to pay the decretal amount. Hence two separate appeals by defendants 1 and 2 challenging the judgment and decree passed by the learned single Judge have been filed with a prayer to restore the judgment and decree passed by the trial Court.
7. It was not disputed at any stage nor even now in these appeals that the tenancy came into being vide registered lease deed dated 19-12-1963 for a period of five years at the rate of Rs. 1,200/- per month. On the records of the trial Court, certified copy of the lease deed Exhibit P3 was placed according to which the appellants took the premises on lease for a period of five years from the plaintiffs who were minors at that time whereas the original lease deed which was tagged with another case file summoned by the learned single Judge clearly mentions that the appellants were the lessees and they had described themselves as owners of Adam and Eve. The case as projected by the appellants before the trial Court was that under the family settlement, the assets and liabilities of firm Adam and Eve were taken over by Goverdhan Lal Kapur who became the exclusive owner of the same and the plaintiffs started accepting rent from Goverdhan Lal Kapur in the later part of the year 1965. One of the grounds on which the appellants succeeded before the trial Court in their plea aforesaid was that in the lease deed, certified copy whereof, is Exhibit P3, it was recited that the appellants had taken the premises on lease for a period of five years. As mentioned above, the appellants described themselves owners of Adam and Eve which was omitted in the certified copy Exhibit P3. The finding of the trial Court based upon Exhibit P3 was, thus, rightly reversed by the learned single Judge. The appellants, however, on the basis of act and conduct of the plaintiffs as also notice Exhibit D6 dated 1-3-1968 which was issued by the plaintiffs through their counsel as also on the basis of oral evidence still contend that there was disruption in their family and under the settlement that was arrived at, the assets and liabilities of firm Adam and Eve were taken over by Goverdhan Lal Kapur who became the sole proprietor of the same. It requires to be mentioned here that Goverdhan Lal Kapur is the real uncle of the appellants.
8. The contention of the appellants, as noticed above, is devoid of merit. S. 111 of the Transfer of Property Act provides various modes for determination of lease and it is sub-clauses (e) and (f) of S. 111, under which it is sought to be made out that lease in favour of appellants stood determined. Whereas sub-clause (e) talks of determination of lease by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them, sub-clause (f) puts lease to an end by implied surrender. The express Or implied surrender, in the very nature of things, can be only to the lessor and not to any one else. Mere fact that the appellants handed over the possession of the premises under the name and style of Adam and Eve being run by them as proprietors to Goverdhan Lal Kapur, would not be surrender of lease which, as stated above, could only be by handing over possession of the premises to the plaintiffs. It is too well settled by now that when a suit is filed by a landlord to recover arrears of rent due from a tenant, the burden is upon the lessee to plead and prove that during the; period of lease for which rent has been claimed, he had delivered possession of the property back to the lessor. Madras High Court in "Balasubramania Iyer v. Subbiah Thevar", AIR 1965 Mad 417 held that when a suit is filed by a landlord to recover arrears of rent due from a tenant who was inducted into possession in pursuance of the lease, the burden is clearly upon the leasee to allege and prove that during the currency of the lease and for the period for which rent was claimed, he had delivered possession of the property back to the lessor. Unless such redelivery of possession of the property to the lessor is established, the tenant will clearly be liable for arrears of rent.
9. The contention of the appellants that the mere fact that the attorney of plaintiffs Mahan Singh started accepting rent from Goverdhan Lal Kapur, the plaintiffs by their act and conduct, are not entitled to claim rent or damages from them is mis-conceived. On the basis of facts as established by evidence in this case, the plaintiffs were entitled to the rent which was coming to them from Adam and Eve and even if the same was through Goverdhan Lal Kapur, they were not concerned with that. The rent can be paid by any one on behalf of the lessee and that cannot make the one who remits the rent as a lessee. Notice Exhibit D6 even though recognises the fact that it is Goverdhan Lal Kapur who was occupying the premises but the same is clearly stated to be against the will and consent of the plaintiffs. The contents of the notice cannot be termed as implied admission on the part of the plaintiffs that it was Goverdhan La! Kapur who became lessee in the later part of the year 1965.
10. In so far as oral evidence is conerned, suffice it to say that the same was not even admissible to prove rescission of the lease deed as per provisions contained in Section 92 of the Evidence Act. In "Mangladha Shah v. Abdul Chani", AIR 1933 Lahore 278, it was held that the view of the District Judge that oral evidence was admissible under the circumstances to prove the rescission of the lease was erroneous. For taking this view, reliance was placed upon three earlier decisions reported in "Ghanya Lal v. Rallia Ram, AIR 1928 Lahore 873; "G. P. Mallappa v. Matam Naga Chetty", AIR 1919 Mad 833 and "Jagannath Kashiram Tambli v Shankar Ganpal Shimpi", AIR 1920 Bom 115 (2).
11. A Division Bench of this Court in "Balwant Singh Walia v. Smt. Maya Devi etc.", 1979 Cur LJ 7 held that subsequent oral agreement modifying the terms of original registered mortgage deed is inadmissible.
12. The last contention of the appellants that in notice Exhibit P6, it was mentioned that the rate of rent was Rs. 1,100/- per month and that the original lease evidenced through Exhibit P 3 was for Rs. 1,200/- was enough to show existence of a fresh lease in favour of Goverdhan Lal Kanpur has also to be repelled. It is true that Marian Singh, the attorney of the plaintiffs did state that initially the rate of rent was Rs. 1,200 per month but he clarified by saying that at no given time, Rs. 1,100/- were settled as rent and in fact a sum of Rs. 3,600/ - was deposited with him as security and out of that amount, a sum of Rs. 100/- was deducted every month towards rent and the amount of security was adjusted in three years. The rent, thus, always remained Rs. 1.200/-.
13. Finding no merit in these appeals, we dismiss the same but leave the parties to bear their own costs.
14. Appeal dismissed.