Punjab-Haryana High Court
Smt. Raj Rani vs Kaushalya Devi And Ors. on 6 August, 1999
Equivalent citations: (2000)124PLR323
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a landlord's revision under Section 15 of the East Punjab Urban Restriction Act, 1949 (hereinafter called the Act) and has been directed against the judgment dated 19.1.1983 passed by the Court of Appellate Authority, Hoshiarpur who set aside the order dated 2.8.1990 passed by the Rent Controller, Hoshiarpur who allowed the application of Smt. Raj Rani landlady under Section 13 of the Act.
2. The brief pleadings are that the shop in dispute belonged to one Kharaiti Ram and others who sold it to the present landlord for a consideration of Rs. 3,000/- vide sale deed dated 5.6.1979. Mangat Ram (husband of Kaushalaya Devi and father of Kamla Devi and Nirmala Devi) was in occupation of the shop as a statutory tenant under the previous owner under a rent note dated 4.6.1960 on a monthly rent of Rs. 8/- only. Mangat Ram died about four years before the filing of the ejectment petition leaving behind Kaushalaya Devi and her two daughters appellants as the legal heirs who thus became tenants of the premises in dispute under the law. Ejectment petition was filed on the ground that the tenants failed to pay the arrears of rent with effect from 5.6.1979 and that they also sub-let or assigned their tenancy rights in favour of appellant No. 4 Komal Kumar without the consent of the landlord.
3. Notice of the petition was given to respondents No. 1 to 4. They have filed joint written statement stating that Mangat Ram was running a business under the name and style of Gift Museum in Dabbi Bazar, Hoshiarpur in a partnership firm under the name and style of Brij Lal Mangat Ram. Relationship of respondents No. 1 to 3 with Managat Ram were admitted. It was maintained that on the first date of hearing, rent alongwith interest and costs were paid The allegations regarding sub-letting has been denied and it was pleaded that respondents No. 1 to 3 were tenants of the shop in dispute which was being used by the firm of which respondents No. 1 to 3 are now partners but, it was added that appellant No. 4 was only acting as a Manager to look after the affairs of the firm of tenants No. 1 to 3.
4. Learned Rent controller, framed the following issues for the disposal of the rent petition:-
1. Whether the respondents No. 1 to 3 have sublet or assigned their tenancy rights in favour of respondent No. 4? OPA.
2. Relief.
5. The parties led oral and documentary evidence in support of their cases and on conclusion of the proceedings the learned Rent Controller for the reasons mentioned in paras No. 7 and 8 in the impugned order allowed the ejectment petition as under:-
"7. In support of this issue Raj Rani applicant herself entered the witness box to depose that respondent No. 4 was actually doing business in the shop and respondent Nos. 1 to 3 were not doing any business. She pleaded ignorance if respondent No. 4 Komal Kumar was the son of Kamla Devi respondent and he was daughter's son of Mangat Ram. She admitted that Kaushalaya Devi was residing at Hoshiarpur. Hans Raj, A.W.2 deposed similarly that after the death of Mangat Ram, Sat Pal Munim did business for some time and thereafter Komal Kumar respondent started doing the business. He admitted in cross-examination that in Dabbi Bazar, Managat Ram was doing business under the name and style of Brij Lal Mangat Ram. Kundan Lal, A.W.3 also stated that after the death of Mangat Ram respondent No. 4 was in occupation of the shop in dispute. In cross-examination he clarified that it was this respondent who was opening and closing the shop and that even in the life time of Mangat Ram only the goods were stored in the disputed shop and otherwise it used to remain closed. Tirath Ram also gave support to the same version that Komal Kumar was in occupation of the shop in dispute and that he had taken the shop from Kaushalaya Devi. As against this evidence one of the respondents, namely, Nirmala Devi entered the witness box to depose that she and her mother and her sister are partners in the firm Brij Lal Mangat Ram, Gift Museum. She further deposed that the disputed shop was being used as a Godown right from the beginning. Then she added that the business was being managed by Komal Kumar who is son of her sister Kamla Devi respondent. In cross-examination she admitted that she has been living at Amritsar for the post twenty years, whereas Kamla Devi has been living at Ambala for the past 10 years. She admitted categorically that neither she nor her sister nor her mother were doing business. She tried to explain that Komal Kumar was getting Rs. 250/- per month as salary and that he was maintaining accounts. She was ignorant if the salary was being mentioned in the account books. She was not in a position to tell what was the possible profit every month. Another respondent Kamla Devi who is mother of Komal Kumar also entered the witness box to claim that after the death of her father, the business was being done by her, her mother and sister and that their firm was in occupation of the shop as a tenant She admitted that Komal Kumar actually attended today to day business and he sat at the shop. She also admitted that she was living at Ambala, whereas her mother Kaushalaya Devi was. living at Hoshiarpur. When she was questioned about salary which her son was getting the reply was that it was either Rs. 200/- or Rs. 250/-. The witness was not exact. She was not in a position to tell as to who invested for the goods in the business. Then she was categorically in her statement that neither she nor her sister nor her mother contributed any capital for the business.
8. Now it is to be seen as to whether respondent Nos. 1 to 3 have really to do anything with the business which is now being carried on or whether respondent No. 4 was in fact the person now in the total control and in occupation of shop and the business and respondent Nos. 1 to 3 have got nothing to do with it. The learned counsel for the respondents has invited any attention to certain statements of accounts. Copies of which are Ex.R.3 and R.4 and partnership deed Ext.R.2 and certified copy of the registration of firm Ex.R.l. The learned counsel submits that Mangat Ram, his wife and daughter were doing business since the year 1972 and the business was again carried on in the name of M/s Gift Museum, Dabbi Bazar, Hoshiarpur. The submission of the learned counsel is that the accounts of the firm are being produced before the Income Tax Authorities and there can be no doubt that the business is really carried on in the partnership. The argument of the learned counsel goes on that after the death of Mangat Ram respondent No. 1 to 3 continued doing the business of the firm and the respondent No. 2 was acting only as a manager to look after the day to day business. The learned counsel Shri Kohli on behalf of the applicants submits that the so-called partnership is fictitious and at present none of the respondent No. 1 to 3 have any interest left in the business. The submission of the learned counsel is that respondent No. 4 is totally incharge of the business and he is appropriating to himself the entire profits. I have given my careful consideration to the argument of the learned counsel and I am of the view that this a case where respondent Nos. 1 to 3 have failed to prove that they have any interest left in the business. They cannot be considered to be in occupation of the premises in dispute and it is not possible to hold that Komal Kumar is acting merely as manager. It is interesting to note that two of the respondents who entered the witness box did not even know as to what was the exact salary was being mentioned in the account books. One of the them lives at Amritsar for the past 20 years and other lives at Ambala for the past 30 years. Respondent No. 1 Kaushalaya Devi widow of Mangat Ram who is stated to be available at Hoshiarpur has not entered the witness box at all. Respondent No. 4 who claimed to be the manager of the business has failed to enter the witness box non-appearance of these two respondent is certainly detrimental to the plea which has been put forward. The account books have also been withheld. It is not known how profits and losses are being shared by respondent No. 1 to 3. Respondent Nirmala Devi did not even know as to what was the monthly income. All these circumstances indicate that respondents No. 1 to 3 really do not have any connection with the business and their names are mentioned in the so-called partnership deed fictitiously. Respondent No. 4 being the son of one of the respondents is in fact running the business in the shop and it cannot be said that he is running the business on behalf of anybody, only as a manager. I am, therefore, of the view that applicant has been successful in proving that respondent No. 1 to 3 have either sublet or assigned their tenancy rights in favour of respondent No. 4. This issue is decided in favour of the applicant."
6. Aggrieved by the order of the Rent Controller, the tenant went in appeal and the Appellate Authority set aside the findings of the Rent Controller on issue No. 1 and dismissed the petition for the reasons given in paras No. 10 to 15 of the impugned dated 19.1.1983 as under:-
"10. I have considered the evidence brought on the record and I feel no hesitation to hold that in the present case no subtenancy has been proved by the landlord by producing any cogent evidence. Reference can first be made to the witnesses examined by the landlord. Raj Rani petitioner-landlord herself appeared as AW1 and she stated that Kaushalaya Devi tenant reside at Hoshiarpur and that she did not know as to whether Kaushalaya Devi sits at their shop situated in Dabbi Bazar. Raj Rani landlord also showed her ignorance about the fact that Komal Kumar, appellant No. 4 sits at the shop situated in Dabbi Bazar. Hans Raj, AW-2, stated in his examination-in-chief that the daughters of Mangat Ram come to the shop in dispute, whereas the business is conducted by Komal Kumar. This statement made by a witness examined by the landlord clearly indicates that the possession of the shop in dispute has not been parted with by the tenants who are daughters of Mangat Ram. Hans Raj AW-2 also showed his ignorance that tenants are the partners of the firm in occupation of the shop in dispute. Kundan Lal A.W.3 stated in his examination-in-chief that he had never had a talk with Komal Kumar as to in what capacity he sits on the shop in dispute. In his cross-examination he showed his ignorance about the fact that after the death of Mangat Ram the tenants No. and Mangat Ram's widow are the owners of the business left behind by Mangat Ram. Tirath Ram. AW-4 made a statement that Komal Kumar sits on a shop on which previously Mangat Ram was working. In his cross-examination this witness stated that he made statement in respect of the shop situated in Dabbi Bazar which means that he did not make a statement in respect of the shop in dispute. In his cross-examination Tirath Ram AW-4 stated that he did not know that the shop in dispute is now owned by Kaushalaya Devi tenant.
11. The above evidence produced from the side of the landlord does not lead to any conclusion that the tenants created a sub-tenancy in respect of the shop in dispute in favour of Komal Kumar appellant No. 4. Apart from the above, the tenants have also produced on the file documentary evidence in the shape of photostate copy of the partnership deed Ex.R.2. Ex.R.2 coupled with the certificate of registration of the firm Ex.R.1 and balance sheet Ex.R.3 and R.4 apart from the statement attached with the balance sheet Ex.R.4 relating to the year 1978. Copy of Ex.R.2 shows that new partnership with the tenants as partners came into existence with effect from the year 1975 and the partnership deed was executed on 28.11.1975. The balance sheets referred to above clearly shows that accounts of the firm relating to the year 1978-79 and 1979-80 and the salary paid to Komal Kumar Jain, Manager of the firm is also duly mentioned therein. A bare perusal of the partnership deed copy of which is Ex.R.2 shows that the partnership of the tenants came into existence much before the shop in dispute was purchased by Raj Rani landlord who purchased it from the previous owner as late as in the year 1979.
12. It further cannot be disputed that the tenants who are shown as partners in copy of the partnership deed. Ex.R.2 being women cannot be said to be not competent to run any business on the basis of the capital invested by them and the business can legitimately be left by them to be supervised by Komal Kumar Jain who is a son of one of the partners. The relationship of Komal Kumar Jain with the other tenants also lead to the same conclusion that he is not a sub-tenant.
13. The law on the point is clearly laid down in (1975)77 P.L.R. 654 Smt. Shanti Devi v. Puran Chand and Ors, in which it is held by our Hon'ble High Court in para 3 at page 656 as under:-
"subletting" is not defined in the Act. A lease would be said to have sub let the property if he has transferred his rights under the lease and by delivering possession of the said property becomes a stranger, and has no right to have its possession restored to him. There can be no sub-letting without the lessee's parting with the legal possession of the demised premises, the real test to determine sub-letting is whether the tenant has walked out of the demised premises and has handed over its exclusive possession and control to the sub-tenant. A tenant is entitled to use the demised property for any business he likes and if he takes some one as partners in his business the partner does not get the right of tenancy and cannot claim the status of a tenant or sub-tenant. If the tenant takes someone as partners in his business, if cannot be treated as sub-letting of the premises to the partners."
14. Reference is further made to (1974)76 P.L.R. page.183 Prithi v. Sardara, in which it is held by our Hon'ble High Court in para 8 at page 184 that the onus to prove sub-letting is on the landlord and that in order to prove sub-letting it has to be shown that the tenant had handed over exclusive possession and control of the tenanted premises to the sub-tenant.
15. In the present case the landlord has failed to establish the existence of any sub-tenancy which might have been created by the tenants in favour of the appellant No. 4 whereas on the other hand it stands proved by documentary evidence that the shop in dispute is in the control of the partnership of which tenants are partners and the business is only looked after by appellant No. 4 Komal Kumar being son of one of the partners."
7. Aggrieved by the order of the Appellate Authority, the landlord has come in revision.
8. I have heard Ms, Harash Rekha Advocate on behalf of the petitioner and Shri H.S. Gill, Senior Advocate assisted by Mr. G.S. Gill, Advocate on behalf of the respondents and with their assistance have gone though the evidence on the record.
9. Since two opposite findings have come in the Courts below, therefore, I would like to appreciate the evidence which has been led by the parties on the record.
10. The petitioner landlord is seeking ejectment of the respondent/tenants and Shri Komal Kumar who is none else but son of Kamla Devi respondent No. 2 on the ground of subletting. Subletting is a secret arrangement between the tenant and sub-tenant. It cannot be proved by the landlord by direct evidence. It can only proved by circumstantial evidence. Initially the onus to prove sub-letting is always upon the landlord but if the landlord proves that the tenant had parted with the exclusive possession of the demised premises in favour of the sub-tenant and that the tenant has left all the control over the premises certainly inference is that sub-tenancy can be proved even it may not be proved by the landlord as to what was the consideration which was agreed to be paid by the sub-tenant to the tenant. In this case the tenancy was in favour of Mange Ram who died in the year 1975. He was survived by his wife Kaushalaya Devi and two daughters, namely Kamla Devi and Nirmala Devi. Respondent No. 4 Komal Kumar is son of Smt. Kamal Devi. Thus we can say that Komal Kumar is maternal grand son of Smt. Kaushalaya Devi. As I have stated above, the point for determination is whether after the death of Shri Mangat Ram, his wife Kaushalaya Devi and two daughters Kamla Devi and Nirmala Devi had control or possession over the demised premises, certainly it will be held that they had not sublet the premises to Komal Kumar respondent No. 4. If it is proved on the record that after death of Mangat Ram, Kamla Devi and Nirmala Devi had shifted their residence and had withdrawn from the tenancy of Mangat Ram by parting their exclusive possession in favour of Komal Kumar who admittedly is carrying on business in the demised premises, certainly it can be held that the sub tenancy has been proved. Interestingly, it was Komal Kumar, who can explain under what circumstances and what capacity he is in occupation of the premises. He has not appeared in the witness box in these circumstances, this Court is inclined to draw an adverse inference against the respondent and in favour of the landlord who categorically stated that Kaushalaya Devi, Kamla Devi and Nirmala Devi had parted with exclusive possession of the demised premises in favour of Komal Kumar who is in control of the demised premises. Kaushayala Devi has not appeared in the witness box but Kamla Devi and Nirmala Devi have appeared in the witnesses box. I would like to discuss their statements in order to find out as to whether the case set up by the respondents regarding entering into partnership with respondent No. 4 appears to be genuine or it was a camouflage. Nirmala Devi while appearing as RW1 admits in her examination-in-chief that the entire business is being run by Komal Kumar who is son of her sister Kamla. Though it has been stated by her that Komal Kumar is working in the capacity of a servant but further it has been admitted by Nirmala that entire business is being looked after by him. Also she admits that she is resident of Amritsar while her sister Kamla Devi resides at Ambala and they are living at Amritsar and Ambala for the last about 20 years. She further admits that neither she nor her sister nor their mother does any business in the demised premises. It is the case of this witness that a sum of Rs.250/- is paid to Komal Kumar who maintains the entire accounts. She does not know of the profits that are being given by the alleged manager to the partners. Smt. Kamala appeared as RW.3. Of course, she proves registration certificate of the partnership Ex.R.2 copy of the partnership besides Ex.R.3 and Ex.R.4 the balance sheets of the Income Tax returns but in the cross-examination she admits that after the death of Mangat Ram none of the ladies does any work at the shop and the entire business is being run by Komal Kumar. She does not know as to what salary is being paid to Komal Kumar. She says that Rs. 200/- - 250/- is being paid to him. She does not know who has invested capital in the shop. Rather she admits that her mother and her sister had not invested any capital in the shop. In these circumstances, it cannot be held that there was genuine partnership between three ladies after death of Mangat Ram. In fact these three ladies had parted exclusive possession of the shop ion question to Komal Kumar and who is in control of the premises. Reverting to the documentary evidence which has been led by the respondents in the shape of balance sheet Ex.R.3 and Ex.R.4, it is correct that it has been shown in it that a sum of Rs. 30,000/- and odd are being paid to Komal Kumar by way of salary per year but in view of this Court and in view of evidence of Smt. Kamla Devi and Nirmala Devi it can be said that the partnership deed has been created so as to deprive the landlord of his right of ejectment. Learned counsel for the respondent also submitted that as per partnership deed, respondent No. 2 has 50% share while Kamla Devi and Nirmla Devi have 25% share each. This partnership was registered in the year 1972. This document in my opinion does not help the respondents. It shows that Mangat Ram entered into partnership with Komal Kumar, Nirmla Devi and Kamla Devi and Kaushalaya Devi. Mangat Ram died on 19.11.1975. Thereafter, Komal Kumar became the controller of the premises. Kaushalaya Devi, Nirmla and Kamla were never interested or control over the demised premises. In such a situation reliance can be placed upon (1995-3)111 P.L.R. 345 Kharar Saw Mill Industry and Furniture Production Indl. Coop. Society Limited and Anr. v. Smt. Prem Kaur and Ors., in which it was held that the fact is always in the knowledge of the sub-tenant as to in what capacity they are in possession of the demised premises. The landlord can only prove that in the place of the original tenant somebody else is occupying the premises independently. The alleged tenant has to explain in which capacity he is running the shop. Of course High Court is not third appellate authority but certainly it has the power to consider the legality or propriety of the order made by the Rent Controller and the Appellate Authority. As I have stated above that I had examined the evidence in this case and from the statements of the witnesses of the respondent, namely Kamla Devi and Nirmla Devi it stands proved exclusively that the possession of the shop in dispute has virtually gone to Komal Kumar. Further held in (1997-2)116 P.L.R. 25 Darshana Devi and Anr. v. Des Raj Singh Thakur, that if the landlord proves parting with exclusive possession by the tenant in favour of any other person. It would be for the tenant to prove that the possession of another person is permissive without consideration. Learned counsel for the appellant has also relied upon 1982(1) All India Rent Control Journal 23 Sudarshan Kumar Chhiber v. Baldev Raj and Anr., in which it was held that initial onus to prove sub-letting is on the landlord but if he is able to successfully show that the possession of the premises is not of the tenant, then it is for the tenant or the occupier to show the nature of his possession. The non-examination of Komal Kumar respondent No. 4 who initially contested the petition is fatal to him. It was his boundened duty to explain the allegations levelled against respondent No. 1 to 4. By not coming into the witness box, a great risk has been taken by the respondents in this case. This Court is inclined to draw an inference against the tenant and sub tenant under Section 114 of the Indian Evidence Act.
11. Learned counsel for the respondents relied upon (1974)76 P.L.R. 183 Pirthi Raj v. Sardara, in which basic principle of law was laid down that the onus to prove subletting is on the landlord. In order to prove sub-letting it has to be shown that the tenant had handed over exclusive possession and control of the tenanted premises to the subtenant. Also reliance upon (1975)77 Punjab Law Reporter 654 Shanti Devi v. Puran Chand, in which it was held that if a tenant admits partnership with him, it does not constitute sub-letting. There is no dispute about the proposition of law as laid down in both the authorities but in the present case it has been proved by the landlord that Smt. Kaushalaya Devi, Kamla Devi and Nirmala Devi after death of Mangat Ram had withdrawn themselves from the tenancy rights by handing over the exclusive possession to Komal Kumar as I had tried to show above even from the statements of Nirmala Devi and Kamla Devi. There is not an iota of evidence to show that at any relevant time Kaushalaya Devi, Kamla Devi and Nirmala Devi sat on the shop in order to show their intention that want to retain the possession over the demised premises after the death of Mangat Ram the statutory tenant. If the partnership allegedly entered into between the tenant and the sub tenant is faked document in order to circumvent the provisions of Rent Restriction Act, certainly the court has the power to lift veil so as to examine for what motive sub-letting was entered into. If the alleged partnership is not genuine transaction, it has to be inferred that the tenant has sublet the premises or has transferred his lessee rights in favour of the stranger.
12. Learned counsel for the respondent also submitted that Komal Kumar is non else but son of Smt. Kamla Devi who is one of the heirs of Shri Mangat Ram. After death of Mangat Ram, Kaushalaya Devi became tenant with Nirmala and Kamla. Smt. Kamla had deputed her son Komal Kumar to look after joint business, it will not amount to sub-letting. The proposition of law which has been put by the learned counsel for the respondent looks alluring but if scrutinised on the touch stone of evidence, it cannot be accepted. It is not case of the respondent that Smt. Kamla had deputed her son to look after the business on her behalf. The case set up by the respondent is that Shri Krishan Kumar is Manager of the business and he is looking up the affairs of the partnership business on monthly salary of Rs. 250/-. If this is not established, it has to be inferred that all the heirs of Shri Mangat Ram had parted legal possession over the demised premises to Komal Kumar who as per evidence is in exclusive possession of the rented premises. In this view of the matter, I am not inclined to accept the reasons advanced by the learned Appellate Authority when it dismissed the application of the landlord.
13. Resultantly, in the light of the above discussion, I allow this revision petition and set aside the judgment of the learned Appellate Authority and allow the ejectment petition by giving three months times to the tenants to vacate the demised premises and put the landlady into possession thereof failing which it will be open to the landlady to apply to the Rent Controller by way of execution application in order to take the possession of the property. No order as to costs. Revision allowed.