Punjab-Haryana High Court
Sushila Devi vs Hira Lal And Ors. on 14 March, 2007
Equivalent citations: (2007)147PLR241
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. The present petition has been filed by the unsuccessful landlady, who filed an ejectment petition on the ground of subletting. The aforesaid ejectment petition was allowed by the Rent Controller, but on an appeal filed by the respondents, the Appellant Court set aside the judgment of the Rent Controller and consequently dismissed the ejectment petition.
2. The landlady claimed that the shop in question had been let out to Hira Lal at a monthly rent of Rs. 600/- with effect from July 1, 1979 till June 1, 1980. The said shop had been let out for the purpose of running Halwai business and for running a General Store. It was claimed that the tenant Hira Lal had failed to pay the rent with effect from March, 1, 1985 till April 30, 1985. It was also claimed that Hira Lal had transferred his rights under the lease in the shop in question to respondents No. 2 and 3 i.e. Meera Devi widow of Lal Chand a pre-deceased son of Hira Lal and Madan Chaudhri son of Hira Lal, who were running the business independently since October 2, 1979. The landlady alleged that the aforesaid fact had come to her notice only two months back and, therefore, the ejectment petition was filed. It was also claimed that respondents No. 2 and 3 were running the business of General Store in the shop in question, whereas, Hira Lal had permanently shifted his business of Halwai to another shop situated near Arogya Mandir Street and was running the same under the name and style of Sindhi Sweet. It was alleged that the aforesaid shop had been sublet by Hira Lal to his daughter in law and son illegally and without any written consent of the landlady.
3. The aforesaid ejectment petition was contested by the respondents. It was claimed that Madan Chaudhri alias Madhu is the son of Hira Lal, whereas, Smt. Meera Devi is widowed daughter in law being the widow of Lal Chand, a pre-deceased son of Hira Lal. It was specifically pleaded that all of them are members of one family and the business is being carried on by Hira Lal as usual and the business of General Store was being carried on in the shop in question as earlier. It was also stated that the other shop is also being run by Hira Lal. A specific plea was raised in the written statement by the respondents that the disputed shop had been with the respondents and other members of the family and earlier the business was managed by Lal Chand who was the elder son of Hira Lal. After his death, the management was being done by Hira Lal, who was carrying on the shop of confectionery and General Store in the disputed shop and business of Halwai in the other shop. The factum of any subletting was specifically denied.
4. The learned Rent Controller allowed the ejectment petition filed by the landlady and ordered the ejectment of the tenant.
5. The matter was taken up in appeal by the respondents. The learned Appellate Authority re-appraised the entire evidence. On such re-appraisal, the Appellate Court came to the conclusion that the statement of Ravinder Gandhi, AW1 who had appeared as Mukhtiar of the landlady depicted that Lal Chand, husband of Meera Devi was independently working in the shop in question, which was constructed in the year 1969-70 and after the death of Lal Chand, according to Ravinder Gandhi, the possession of the shop in question was surrendered in March 1979 to the landlady. As per the statement of Ravinder Gandhi, after surrendering of possession, fresh tenancy was created in favour of Hira Lal with effect from July 1, 1979. On the basis of the entire evidence led by the parties, the Appellate Authority came to the conclusion that since there was no evidence led by the landlady to the effect that the possession of the shop in question had ever been surrendered by the legal heirs of Lal Chand i.e. his widow, respondent No. 2, at no point of time after his death, therefore, the execution of any fresh Rent Note in favour of Hira Lal was of no consequence and in these circumstances widow of Lal Chand continued in possession of the shop in question in her own right. Thus, it was inferred that there was no subletting by Hira Lal in favour of respondents No. 2 and 3. In these circumstances, the Appellate Authority allowed the appeal filed by the present respondents and set aside the ejectment order passed by the Rent Controller. The ejectment petition filed by the landlady was dismissed.
6. I have heard Shri M.L.Sarin, the learned senior counsel appearing for the landlady petitioner and Shri Arun Jain, the learned Counsel appearing for the respondents and with their assistance have also gone through the record of the case.
7. It has been vehemently argued by Shri M.L.Sarin, the learned senior counsel appearing for the landlady that once the execution of the Rent Note by Hira Lal in favour of the landlady was proved and it was shown that the shop in question had been taken on rent by Hira Lal with effect from July 1, 1979, then it was not open to the Appellate Authority to hold that Meera Devi widow of Lal Chand was in possession thereof in her own right being the widow of a deceased tenant Lal Chand. Shri Sarin has also argued that pleadings of the respondents in their written statement did not show that any plea had been taken by them to the effect that Lal Chand was the tenant of the shop and that after his death, his widow had continued as a tenant in the shop in question. Shri Sarin has also maintained that once the landlady had successfully proved that the business in the shop was being carried on by persons other than the tenant i.e. Hira Lal, then there was a presumption that the premises had been sublet by the tenant and it was for the persons in occupation of such premises to show in what capacity he or she was occupying the same in support of the aforesaid contentions, the learned senior counsel has relied upon the following judgments:
(1981) 83 P.L.R. 763, Banta Singh v. Vishwa Nath and Ors. 1984 (2) Rent Control Reporter 635, Smt. Sita Devi v. Chaman Lal and Anr. 1992 (2) Rent Control Journal 481, Pehlad Rai and Anr. v. Raj Kumar Jain and Anr. (1992-2) P.L.R. 627, Mohammedkasam Haji Gulambhai v. Bakerali Fatehali (Dead) by LRs and , Shah Phoolchand Lalchand v. Parvathi Bai.
8. On the strength of the aforesaid authorities, the learned senior counsel has stressed that once the actual physical possession of the shop was shown to be with somebody else other than the tenant, then a presumption of subletting necessarily arose and the aforesaid presumption was to be rebutted by the person in occupation. It has also been maintained by the learned senior counsel that the mere relationship between the tenant and the person in occupation could not come to the rescue of such a person, if it was shown that the tenant had surrendered the rights in the property in favour of the occupation.
9. On the other hand Shri Arun Jain, the learned Counsel appearing for the respondents has argued that a specific plea has been raised by the present respondents in their written statement to the effect that earlier the business in the shop in question was managed by Lal Chand, who was the elder son of Hira Lal. After his death, the said business was being managed by Hira Lal and he had been carrying on the shop of confectionery and General Store in the shop in question and business of Halwai in other shop. Shri Jain has maintained that the factum of sub tenancy had specifically been denied and the defendants had specifically claimed that all of them are members of one family and are not strangers. Shri Jain has also referred to the statement of Ravinder Gandhi, Mukhtiar of the landlady, who has appeared as AW1 and has argued that in fact the statement of the aforesaid witness clearly supported the claim made by the respondents that there was no subletting between the respondents.
10. I have duly considered the aforesaid rival contentions of the learned Counsel for the parties.
11. It is apparent from the statement of AW1 Ravinder Gandhi, who has appeared as Mukhtiar of the landlady that shop in question was constructed in the year 1969-70. The same was taken on rent by Lal Chand, elder son of Hira Lal and husband of Meera Devi. He carried on the business of confectionery and general merchandise in the shop in question till his death. Although the case set up by the landlady is that after the death of Lal Chand the possession of the shop in question was surrendered by heirs of Lal Chand and it was later on that a fresh tenancy was created in favour of Hira Lal deceased father of Lal Chand but no evidence whatsoever has ever been led by the landlady to prove the factum of any such surrendering of possession. It appears that the story of surrendering of possession has been put up by the landlady and her son merely with a view to prove that after the death of Lal Chand fresh tenancy had come into being in favour of Hira Lal. As a matter of fact, the entire statement made by Ravinder Gandhi, AW1 clearly shows that after the death of Lal Chand, the business being carried on by him was continued by his widow and his brother. His widow had naturally inherited the tenancy rights. With a view to avoid any complications, may be on a pressure exercised by the landlady, fresh rent note was executed by Hira Lal. However, the business was being continued as earlier. In these circumstances, when the landlady has failed to prove that the possession of the shop in question had ever been surrendered by heirs of Lal Chand to the landlady and after vacating the said shop by them, a fresh tenancy had been created in favour of Hira Lal. It cannot be suggested that Meera Devi was in occupation of the premises as a sublettee. As a matter of fact, after the death of Lal Chand, Meera Devi had herself inherited the tenancy rights.
12. I also do not agree with the contentions raised by the learned senior counsel to the effect that the respondents have failed to take up any plea of Lal Chand being a tenant. In the written statement filed by the respondents, an additional plea has been raised by them to the effect that earlier Lal Chand was carrying on the business in shop and after his death, the business was being carried on by his family members. The said additional plea raised by the respondents, read with the statement of Ravinder Gandhi clearly go to show that there is no surrender of tenancy rights by the tenant in favour of any stranger. Relationship between the parties gores long way to rebut the plea raised by the landlady. The factum of the death of Lal Chand, elder son of Hira Lal further supports the claim made by the respondents that there was no subletting.
13. There is no quarrel with the proposition of law laid down in various authorities relied upon by Shri Sarin but all the aforesaid authorities are not attracted to the facts and circumstances of the present case, nor are relevant for adjudication thereof.
14. Having given my thoughtful consideration to the various observations made by the Appellate Authority, I do not find that the inference drawn by the Appellate Authority, on appraisal of the entire evidence on record, can be said to be erroneous in any manner. In my considered view, the landlady has not been able to prove that the premises in question had been sublet by the tenant.
15. Consequently, I do not find any merit in the present petition and the same is dismissed.