Amarjit and another vs Tripta and others

Rakesh Kumar Garg, J.—This is tenant''s revision petition challenging the order dated 7.9.2010 of the Rent Controller, Jind, whereby his

eviction has been ordered and the judgment dated 30.8.2011 of the Appellate Authority dismissing his appeal against the aforesaid order of

eviction.

Shorn of unnecessary details, it is suffice to say that eviction of the petitioners has been ordered by the Authorities below on the ground that

petitioner No. 1 has parted with the possession of the demised premises in favour of petitioner No. 2 without the consent of the respondent

landlord.

As per averments made in the ejectment petition, petitioner No. 1 had left Jind and shifted to Delhi and he left the possession and control of the

demised premises in favour of petitioner No. 2 for consideration about 2-3 years prior to the date of filing of the petition and petitioner No. 2 was

in actual physical possession of the shop in dispute and was doing his business therein.

To contest the ejectment petition, petitioner No. 1 took up the stand that the tenancy was joint between him and his brothers Krishan Lal and

Paramjit, who were tenants @ Rs. 1500/- per month of two shops which were converted into one after taking the second shop on rent and

petitioner No. 2 was son of Paramjit and was looking after the business of his father.

After considering the evidence on record, the Rent Controller while holding that the petitioners were liable to be evicted on the ground of

subletting observed as under:

I find no force in his submission as PW-3 Joginder Kinnra and PW-4 Kashmiri Lal are two pubic persons who claimed to have visited the shop of

respondent No. 1 in order to make purchases from the said shop. They have narrated the age of Tarun Kumar by their own calculation after

having calculated his physical appearance. Some times a major person also looks like a minor by his physical appearance. The document tendered

by respondent No. 2, i.e. Ex. RW-2/B itself shows that Tarun Kumar appeared in BCA-III Exam in 2004, meaning thereby in the year 2004

Tarun Kumar was approximately 21/22 years old. Had the counsel for respondent No. 2 been so sure about the age of Tarun Kumar, he could

have produced the exact date of birth record of Tarun Kumar in support of his contention. Tarun Kumar himself admitted in his cross-examination

that he had appeared in BCA-III Exam, of Kurukshetra by correspondence as private candidate. Even otherwise there is no bar that a minor

cannot be inducted as a tenant. Taking into consideration the entire cogent documents put forwarded by the petitioners in the form of driving

licence, voter list Ex. P- 1, Ex. P-2, ration card Ex. PW-5/A and Ex. PW-5/B, it stands established that respondent No. 1 is not residing at Jind

and parted with the legal possession of the demised premises since long. He is in collusion with his other brothers Paramjit and Krishan Lai which

fact becomes clear from the testimonies of Amarjit RW-7 and Tarun Kumar RW-8 who have deliberately denied the suggestions advanced by

counsel for the petitioners qua the shifting of respondent No. 1 to Delhi. Both these witnesses feigned ignorance qua the previous litigation held

amongst the petitioners and respondent No. 1 and his brothers. After having shifted to Delhi, respondent No. 1 started his business at Delhi

whereas the demised shop remained in possession of his nephew Tarun Kumar who took the benefit of this fact as the shop in question is adjoining

to the another disputed shop rented out to the brothers of Amarjit Singh respondent No. 1. In the earlier judgments passed in rent petitions titled

Bhagwan Dass v. Amarjit Ex. P7, Paramjit v. Bhagwan Dass Ex. P8, Bhagwan Dass v. Krishan Lal Ex. P9 and appeal titled Amarjit v. Bhagwan

Dass Ex. P3, Paramjit v. Bahadur Chand etc. Ex. P4z, it is categorically held that Amarjit is having a separate tenancy from his other brothers as

the tenancy was not joint. From the evidence led by the petitioners in the instant petition it is also proved that respondent No. 1 has handed over

the legal possession of the demised premises to his nephew respondent No. 2-subtenant after having tendered into a secret arrangement. Thus, in

the light of my above observation, respondents are liable to be evicted from the shop in question on the ground of subletting. Accordingly I resolve

this issue in favour of the petitioners.

While upholding the findings of the Rent Controller, the Appellate Authority observed as under :

It is admitted case of parties that petitioner/respondent is landlord. It is claimed that this is one shop and one tenancy. Appellants have claimed it in

written statements as well as appeal that tenancy is joint but during the course of arguments, learned counsel for appellant admitted this fact clearly

that this plea has been rejected upto Hon''ble High Court. So, it stands proved that these are two separate and independent tenancies. It is also

proved that rent note 1.11.1997 is valid document whereby smaller shop was let out to Amarjeet for Rs. 1000/- per month. Bigger shop is in

possession of his brothers Paramjeet and Krishan Kumar, judgment Ex. P8, Ex. P9 are sufficient to prove it. Permanent injunction suit filed by

tenant against landlord has also been dismissed vide order Ex. P8. So, this claim of joint tenancy stands rejected finally and defence set up by

tenant also goes.

I have heard learned counsel for the petitioners and perused the impugned judgments and record of the case.

The question ""whether petitioner No. 1 has parted with the possession of the demised premises in favour of petitioner No. 2"", who is in

exclusive possession of the same, is a question of fact. Both the Courts below on appreciation of evidence have recorded a concurrent finding of

fact in this regard against the petitioners.

There is overwhelming documentary evidence on record to establish the fact that petitioner No. 1 is residing in Delhi and has left Jind. It has also

been admitted by petitioner No. 1 by taking up the plea of joint tenancy (with the father of petitioner No. 2) that petitioner No. 2 is in possession

of the demised premises. The plea of joint tenancy of the petitioner with his brothers has already been rejected and it has been held that these were

separate and independent tenancies. Once the claim of joint tenancy stand rejected, the defence set up by the petitioners also goes. It was for the

petitioners to prove that in what capacity petitioner No. 2 was in possession of the property in dispute. A feeble attempt was made to say that

Tarun Kumar was actually helping the petitioner being his nephew and therefore, was in possession of the shop in dispute, however, the said

argument is not available in view of the specific pleadings of the petitioners to the effect that there was a joint tenancy of the petitioner along with

his brothers and therefore, petitioner No. 2 was helping his father Paramjit Singh to run his business. Once father of petitioner No. 2 is held not to

be a tenant over the shop, it cannot be held that he was helping his father. Similarly, his claim that he was helping the petitioner being his nephew is

a] so of no help being against the pleadings.

In this view of the matter, I find no merit in this petition.