Gujarat High Court
Luhar Jagjivanbhai Ramjibhai And Ors. vs Mukundlal Pitambardas Shah on 17 September, 1986
Equivalent citations: AIR1987GUJ230, AIR 1987 GUJARAT 230
ORDER
1. The petitioners-original defendants have preferred this revision application under Section 29(2) of the Bombay Rent Act against the judgment and decree for possession of the suit premises. The lower appellate court has confirmed the decree for possession on two grounds, namely (1) change of user i.e. godown to business; and (2) subletting by petitioner No. 1 to petitioner No. 2.
The lower courts have held that as per the rent note Ex. 36 dt. 13-3-1956, the suit premises were let as a Vakhar (godown) whereas they are being used for the purpose of business of blacksmith by installing a 'bhathi' and chimney. As regards subletting also, the rent note is relied which is in the name of petitioner No. 1 Jagjivanbhai alias Bhikhabhai Ramji, and petitioner No. 2 Chaturbbai Chhaganlal is proved to be in possession and, therefore, the transfer or subletting is held to have been proved.
2. The learned Counsel for the petitioners original defendants has submitted that the rent note in the name of petitioner No. 1 Jagjivanbhai Ramjibhai was really for joint family and Chhaganbhai is the common ancestor who had two sons - Ramjibhai and Chaturbhai, Chaturbhai is petitioner No. 2 and Ramji's son Jagjivanbhai is petitioner No. 1. Right from 1956 when the rent note executed for a period of 12 months, both the petitioners had been jointly running the business of blacksmith as a joint family business and rent was being paid up out of the income of the said business and, therefore, there is no question of any subletting and the lower courts have failed to appreciate that the petitioners Nos. 1 and 2 are not strangers to each other, but are members of the joint family running a joint family business since 1956. Similarly, regarding change of user, it is submitted that right from the commencement of the tenancy, the business of blacksmith is being run by the petitioners and there are findings of the lower courts to that effect. The lower Courts have not addressed themselves to the crucial question as to since when the alleged subletting and change of user have taken place. If the lower courts had addressed themselves to this crucial question, the lower courts would not have come to the conclusion that there was any subletting or change of user and, therefore, the findings of the lower courts are without proper perspective and are actually against the evidence on record and that these findings are perverse.
3. On behalf of the opponent-landlord, it is submitted that both the courts below have on appreciation of evidence given the findings on facts supported by evidence that there is subletting as well as change of user and on both these grounds, the landlord is entitled to the decree for possession and, therefore, there is no question of High Court exercising any revisional power to set aside such finding of fact and decree for possession based thereon. It is submitted that admittedly, the rent note is in the name of defendant No. 1 only and now the defendant No. 2 has come to be in exclusive possession and, therefore, the burden is on the defendants to prove that there is no subletting and he has failed to discharge that burden. Therefore, the finding of subletting given by the lower Court is unassailable. Similarly, there is no evidence regarding existence of a joint family and, therefore, all these findings of facts cannot be disturbed in the revision application. Let us consider the rival contentions.
4. The rent note Ex. 36 dt. 13-3-1956 is in the name of petitioner No. 1 Jagjivanbhai. It is a rent note for a period of 12 months only At that time, Jamnadas, brother of opponent landlord had let the premises described as shop as is disclosed by rent note Ex. 36 itself. Even though the rent note has used the word 'Vakhar' which was for a period of 12 months and his occupation is described as blacksmith, it is not possible to hold, having regard to the totality of circumstances of this case, that it was let for the purpose of godown and storage only. The evidence on record clearly shows that right from the beginning it was never used for the purpose of storage, but it was used for the purpose of business of blacksmith and a 'bhathi' and chimney have been installed in the premises since many years and probably soon after the commencement of the lease to the knowledge of the landlord. Even the suit notice Ex. 51 states that the suit premises were leased for the purpose of godown for the business of blacksmith. In the plaint also it has been so narrated. Even in the partition between the landlord Jamnadas and Mukundbhai, the suit premises which have gone to the share of opponent Mukundbhai have been described as shop. There is clear evidence of the defendants that "since last 27 to 28 years, and since the day on which the premises were taken on lease, the premises are leased for the purpose of the business of blacksmith and there is 'bhathi' and chimney installed therein and Jamnadas was coining to the premises for collecting the rent." This evidence of Chaturbliai Ex. 65 is cot roborated by the evidence of neighbouring shop-keeper Noman Abdulbhai Ex, 67 who is having a shop opposite the suit premises and he has stated that Jamnadas was coining to collect the rent of the suit premises and he had seen him coming to the suit premises 10 to 15 times. He has also stated that for the purpose of emitting the smoke, the appellants have erected the chimney since last 15/20 years. The lower Court has rightly not disbelieved this evidence because it is also corroborated by the evidence of Jamnadas Fk. 59 examined on behalf of the plaintiff. He has stated that he knew about the 'Bhathi' in the suit premises a year before partition between the brothers. Therefore, according to him, he knew about the 'bhathi' and chimney in the premises in the year 1972. He also knew that he was going to collect the rent of the suit premises, although he tried to retract the same by saying that he was not going to collect the same. The lower appellate court, therefore, came to the conclusion that "but the evidence does disclose that there is bhathi and chimney in the premises since many years,"
5. In view of this finding that the bhathi and chimney had been in existence in the suit premises since many years, (the suit was filed in 1974), the inference is irresistible that as stated on oath by the defendants, the blacksmith's business has been carried on in the premises almost from the beginning of the tenancy with full knowledge and necessarily implied consent of the landlord who used to go to collect the rent. Even if storage was the original purpose for which the suit shop was let during the period of 12 months of the rent note, that purpose has been clearly given a go-by by the parties including the landlord. The landlord having permitted or having allowed the business use of the premises right from 1956 or 1957 onwards, it is not open to the landlord to come to the Court after 15 years and complain about the change of user and seek a decree for possession on such ground. The finding of the lower Court is also to the effect that the suit shop is being used for the purpose of business of blacksmith since last so many years. Therefore, the question is in view of such user for so many years openly and with the knowledge of the landlord, how could it be said to be contrary to the purpose of the lease. The lower Court has totally failed to consider this aspect. In the context of the facts of the case, it clearly appears that the word 'vakhar' was loosely used or that it was mutually given a go-by after the expiry of 12 months of rent note and with the consent of the landlord and the tenant, the suit premises have been used for the purpose of business of blacksmith. The most eloquent evidence is the installation by the tenant of 'bhathi' and chimney in the premises since many years prior to the suit. In the of K. Mohanlal Kanji v. C. Darji Nathubhai, 18 Guj LR 398: (AIR 1978 NOC 17), it was found on the facts of that case that the business was carried on for 13 to 15 years and the plaintiff had never objected to it and taking into consideration all the circumstances of the case it was held that it was difficult to say that the defendant in that case had reasonable cause for using the suit premises only for the purpose of writing books of accounts and handling correspondence relating to defendant's business.
6. Section 13(t)(k) of the Rent Act provides that a landlord shall be entitled to recover possession of the premises if a Court is satisfied :
"that the premises have not been used without reasonable cause for the purpose for which they were let .................."
In the present case, it is not possible to hold that the premises have not been used without reasonable cause for the purpose for which they were let. The reasonable cause for using the premises for the purpose of business is clearly established by the conduct of the landlord over a number of years and the implied consent of the landlord to the same. This aspect of reasonable cause for the alleged change of user, clearly disentitles the landlord from recovering possession. In order to succeed under Clause (k), the landlord has to prove not only non-user or change of user, but has also to prove that it is without reasonable cause. In the present case, the landlord has utterly failed even to allege and prove absence of reasonable cause. On the other hand, the reasonable cause is duly established by non-user for the purpose of business to the knowledge of the landlord. Therefore, the opponent-landlord is not entitled to the decree for possession on this ground and the lower court have clearly committed an error of law in this respect.
7. The second ground for eviction relied by the lower appellate court is subletting or transfer by petitioner No, 1 Jagjivanbhai alias Bhikhabhai to petitioner No. 2 Chaturbhai. Here again, the lower court has failed to consider as to when so-called transfer or subletting took place. The lower court has proceeded on an assumption that existence of joint family is required to be proved without appreciating that in case of a Hindu family, there is a legal assumption, unless rebutted by the other side, that every Hindu family is presumed to be a joint family Apart from that there is clear evidence that both the petitioners had been carrying on the business jointly in the suit premises. That is the evidence not only of the petitioners Exts. 64 and 65, but is also corroborated by the evidence of neighbouring shop-keeper Namanbhai Ex. 67. The evidence of the plaintiff merely consists of denial. If Chaturbhai was having any other business or source of livelihood, it would have been certainly pointed out by the plaintiff or at least that would have been put to Chaturbhai in his cross-examination. However, no such thing has been even suggested. This strongly supports the case of the petitioners-defendants that Chaturbhai was also running the business as joint family business. Absence of any other business avocation or source of livelihood of petitioner No. 2 strongly corroborates the inherent truth of the evidence of the petitioners and Namanbhai that the business was a joint family business of the petitioners and, therefore, no question of subletting or transfer would arise in such circumstances,
8. The lower Court has relied on circumstance that in reply to the notice and in the written statement, there is inconsistency. In the reply Ex. 46 to the notice the stand taken is that both the petitioners were working in the suit shop in partnership whereas in the written statement, a stand was taken that it is a joint family business. Whether it is described as joint family firm or a partnership firm would hardly make any material difference having regard to the relationship between the two petitioners. It may be taken as loose description and cannot be taken to mean such inconsistency so as to falsify their case. The writing mark 19/7 which is said to be a partition between the petitioners has not been admitted into evidence.
9. The petitioners have made a grievance that it is wrongly not admitted. However, it is not necessary to go into that question because the joint family is not only presumed to exist in case of a Hindu family but in the present case, there is evidence that two petitioners had carried on the business jointly on behalf of the family and it was a joint family business. If the partition had been proved, it would have the effect of showing that the petitioner No. 2 had on partition, between the petitioners, received the suit shop in his share. However, absence of that document from the evidence on record may merely amount to the fact that the partition between the petitioners is not proved. But that would not in any manner help the landlord. The original business having been shown to be joint family business and the rent having been paid out of the funds of that business shows that the lease was for the benefit of the joint family and, therefore, there is no question of subletting or assignment amongst the members of the joint family or the persons carrying on the joint business. The lower Courts have merely gone by the name in the rent note which is that of petitioner No. 1 only and by the admission of the petitioners that by virtue of the partition (which is not held to have been proved), petitioner No. 2 is in exclusive possession. The fact of partition (mark 19/7) is either accepted or is not accepted. If that partition is accepted, then there is an explanation as to how the petitioners stand with regard to the suit premises. If the fact of partition is not accepted, then the joint family through petitioner No. 1 would continue to be the tenant and petitioner No. 2 would be in possession as member of that joint family and not otherwise or independent. Therefore, there is no basis for holding that there is subletting by petitioner No. 1 to petitioner No. 2 and the finding of the lower Court to the contrary is required to be reversed.
10. The lower appellate Court had refused the decree for possession on the ground of permanent structure and arrears of rent and personal requirement. Those findings against the landlord are supported by evidence and, therefore, no interference with those findings is called for so as to sustain the decree for possession on any of those grounds.
11. In view of the aforesaid discussion, decree for possession passed by the lower Courts cannot be sustained on any of the grounds. Hence, this revision application is required to be allowed by setting aside the judgment and decree of the lower court and dismissing the suit of the opponent. Rule is made absolute accordingly with not order as to costs, all throughout.
12. Revision allowed.