Allahabad High Court
Smt. Prabhawati Devi vs Ivth Addl. District Judge And Ors. on 8 February, 2007
Equivalent citations: 2007(2)AWC1357, AIR 2007 (NOC) 1912 (ALL.) = 2007 (4) ALJ 1, 2007 (4) ALJ 1
JUDGMENT S.U. Khan, J.
1. This is landlady's writ petition arising out of suit for eviction instituted by her against respondents No. 2 and 3 Ghanshyam Das and Gulah Chand. The suit was registered as S.C.C. Suit No. 397 of 1990 on the file of J.S.C.C., Kanpur Nagar and was transferred for disposal to 1st Additional J.S.C.C, Kanpur Nagar.
2. Property in dispute is a shop rent of which is Rs. 75 per month.
3. According to the plaint allegations, Ghanshyam Das was the tenant who had sublet the shop to his real brother Gulab Chand. In the plaint, it was alleged that defendants were liable to eviction on the ground of subletting and default. As far as ground of default is concerned, it does not survive as on the first date of hearing entire arrears of rent were deposited and both the courts below granted benefit of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) to the tenant. The trial court held that subletting was proved hence suit was decreed on 24.12.1993. Against the said judgment and decree respondent Nos. 2 and 3 filed S.C.C. Revision No. 11 of 1994. IVth Additional District Judge, Kanpur Nagar, held that subletting was not proved. Accordingly, revision was allowed on 11.7.1996 and judgment and decree dated 24.12.1993, passed by the trial court/1st Additional J.S.C.C. was set aside. The said judgment and order of revisional court has been challenged by the landlady through this writ petition.
4. Petitioner purchased the property in dispute in 1976. Admittedly tenancy had come into existence prior to that.
5. The case of the defendants respondents was that their father Chuhar Mal was the tenant of the shop in dispute. The husband of the landlady in his oral statement stated that the age of Ghanshyam Das was about 16-18 years when he purchased the property in dispute. Immediately thereafter, he stated that at that time the age of Ghanshyam Das was 17-18 years. Even if the latter version is accepted still it would mean that at the time of start of tenancy (which was 4 or 5 years before purchase of property by the petitioner) Ghanshyam Das was minor. There cannot be any contract with the minor. There was no allegation of the petitioner that property in dispute was let out to Ghanshyam Das through his father Chuhar Mal. The consistent case of the defendants was that Chuhar Mal was the tenant. Defendants further stated that Chuhar Mal took the shop on rent as karta of the Joint Hindu Family which carried out the business from the shop in dispute. Initially, a tea stall was opened in the shop in dispute under the name and style of M/s. Mahadeo Tea Stall. Thereafter, readymade garments were sold from the shop in dispute under the name and style of M/s. Padma Garments. The name of the readymade garments business was afterwards changed to Pappan Garments.
6. Defendants had filed an agreement dated 11.4.1974, entered into in between one of the previous landladies, i.e., Smt Shakuntala Devi and Chuhar Mal. Through the said document, permission was granted by Shakuntala Devi to her tenant Chuhar Mal to construct a tin shed in front of the disputed shop. The trial court held that the said document was not admissible as it was a rent deed, which was not registered. The trial court for the said proposition placed reliance upon a Division Bench authority of this Court in Zarif Ahmad v. Satish Kumar 1983 ARC 422. The said authority was overruled by the Supreme Court in Satish Kumar v. Zarif Ahmad 1997 (2) ARC 315 : 1997 (3) AWC 1841 (SC). The revisional court rightly held that the said document not being rent note did not require registration and it was admissible. The trial court had further held that Smt. Shakuntala Devi had not been examined to prove her signatures hence that document did not stand proved. This finding of the trial court was erroneous in law as Chuhar Mal had stated that it bore the signatures of Shakuntala Devi, which was sufficient to formally prove its execution. Trial court wrongly placed the burden of examining Shakuntala Devi upon the defendants. In order to prove execution of document, it is necessary to prove the signatures of executant ; however for the said purpose, it is not necessary to examine the executant. Any person before whom the executant made his or her signature can prove that. Strangely enough the trial court did not say a single word as to why Shakuntala Devi was not examined by the plaintiff. Plaintiff had purchased the property from Shakuntala Devi and two others hence she was in a better position to produce her.
7. As in the year 1971-72 when tenancy was created petitioner was nowhere in picture hence she could not say that who was the initial tenant. The said fact could be proved only by examining any of the original landladies who let out the shop which was not done by the plaintiff.
8. For recording the finding of subletting the trial court placed reliance upon the fact that rent was being paid by Ghanshyam Das in the name of Padma Garments and it was proved by the records of sales tax etc. ; that afterwards the said business was being run under the name and style of Pappan Garments owner of which was Gulab Chand. The trial court also placed reliance upon oral statement of Gulab Chand that since 1973-74 rent receipts were being issued in the name of Ghanshyam Das. It was also noticed by the trial court that rent through tender was deposited by Ghanshyam Das and money order was also sent by Ghanshyam Das. Trial court also noticed that Chuhar Mal in his oral statement admitted that initially receipts were issued in his name and thereafter in the name of Ghanshyam Das; however he could not file any receipt issued in his name.
9. The burden to prove subtenancy initially lies upon the landlord vide Kalu v. M.P. Vaidya . In the instant case, landlord Completely failed to prove that shop was let out to Ghanshyam Das hence there was no question of sub-tenancy if Ghanshyam Das delivered the possession to his brother Gulab Chand.
10. No counter foil or receipt in the name of Ghanshyam Das at the time of start of tenancy or for the period immediately thereafter was filed by the petitioner. Petitioner could not have any knowledge about the fact that to whom the shop was initially let out. The plaintiff neither examined any of the original landladies nor produced any document to prove that initially tenancy was in favour of Ghanshyam Das. Moreover the exact date or period of start of alleged subtenancy was also not mentioned. Under the peculiar facts and circumstances of the case, it was necessary to mention the said fact vide Smt. Laxmi v. C.S. Nagarkar . In the said case, the Supreme Court set aside the finding of sub-letting recorded by the trial court, District Judge as well as High Court.
11. Revisional court held that Chuhar Mal had taken the shop in dispute on rent as karta of Joint Hindu Family and all the three businesses carried out from the shop in dispute were of Joint Hindu Family even though in the name of different persons. In my opinion, it was not at all necessary to invoke the principle of Joint Hindu Family. By virtue of Sections 12(1)(b) and 12(2) read with Sections 25 and 20(2)(c) of the Act, subletting takes place if the tenanted premises, which is commercial in nature, is allowed to be occupied by a person who is not member of the family of tenant. Family has been defined under Section 3(g) of the Act according to which family in relation to a tenant means spouse, male lineal descendants and grand parents and daughters in certain cases. By virtue of said sub-section son is clearly included in the definition of family. Chuhar Mal was the original tenant hence if he allowed one of his sons at one point of time and other son at another point of time to exclusively occupy the shop in dispute then under the U.P. Act No. 13 of 1972, no sub-tenancy can be said to have come into existence.
12. Accordingly, I hold that the landlady completely failed to prove subletting.
13. Writ petition is therefore dismissed.
14. I have held in Khursheeda v. A.D.J. 2004 (2) ARC 64 : 2004 (1) AWC 851 and H.M. Kichlu v. A.D.J. 2004 (2) ARC 652, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.
15. Property in dispute is a shop situate in Kanpur Nagar which is most expensive city of Uttar Pradesh. Rent of Rs. 75 per month is virtually as well as actually no rent.
16. Accordingly, it is directed that with effect from March, 2007 onwards, tenant shall pay rent to the landlady at the rate of Rs. 2,000 per month inclusive of water tax etc. No further amount shall be payable by the tenant.