Amin Chand and others vs Thakur Dass

J.V. Gupta, J.—This is tenant''s petition against whom the eviction order has been passed by both the authorities below.

Landlord Thakur Dass, sought the ejectment of the tenant from the shop, in dispute, situated in Rajpura Township inter alia on the ground that he had sublet the same to Ram Saran, his brother, without his written consent. It was pleaded that Amin Chand, tenant, had left Rajpura and was doing business at Thanesar whereas the demised premises were being occupied by his brother Ram Saran, Respondent, who was doing his own business therein. Joint written statement was filed on behalf of Amin Chand, and Ram Saran, Respondents. It was denied that Amin Chand, Respondent, had left Rajpura and had sublet the premises to Ram Saran, Respondent According to them they were real brothers and were doing joint business in the shop, in question, at Rajpura Thus, Ram Saran, Respondent, was not a sub tenant, as alleged. The learned Rent Controller found that the landlord had been successful in proving on the record that Amin Chand, tenant, had sublet the shop to Ram Saran. Respondent, without his consent. In view of this finding the eviction order was passed. In appeal, the Appellate Authority affirmed the said finding of the Rent Controller and, thus, maintained the eviction order passed against the Respondents Dissatisfied with the same, the Respondents have come up in revision to this Court.

The Learned Counsel for the Petitioners, contended that the evidence produced on the record has not been properly appreciated From the documentary evidence on the record in the form of income tax orders, it has been amply proved that the business at Rajpura in the demised premises was joint of both the brothers Amin Chand and Ram Saran, Respondents, and it has been wrongly held that it has not been proved that the business was joint of both the brothers. According to the Learned Counsel, it was for the landlord to prove that the tenant Amin Chand had sublet the premises to his brother Ram Saran when the Respondents had discharged the burden of producing the income tax orders in this behalf. This burden, argued the Learned Counsel, has not been discharged by the landlord

After hearing the Learned Counsel for the Petitioner, I do not find any merit in this revision petition.

Surprisingly enough, Ram Saran, Respondent, did not appear in the witness-box to support the plea that his business at Rajpura in the demised premises, was joint with his brother Amin Chand. No partnership deed has been produced on record to prove that the business in the premises was being run in partnership by both the Respondents. Not only that, the tenant Amin Chand, appeared earlier in another case at Karnal where the landlord had filed an ejectment application against him. There, he admitted in his statement, a certified copy of which is, Exhibit A-l, that he had run the shop at Rajpura for five years and that for last four years, he had left that place. He further admitted therein that now his brother Ram Saran, was sitting on the shop at Rajpura where he used to work previously. Amin Chand, tenant, was duly confronted with his afore-said previous statement when he appeared in the witness box as R,W. 4, but he was unable to give any satisfactory explanation for the same. Both the Authorities below have come to the conclusion that on the basis of the evidence on the record, it has not been proved that the business at Rajpura was joint of both the Respondents, rather according to the admission made by the tenant, Amin Chand, he had left Rajpura much earlier. This being a finding of fact could not be challenged in this revision petition.

Once it is proved that Ram Saran, Respondent, was in exclusive possession of the demised premises, then it was for the tenant Amin Chand to prove as in what capacity the former was in possession of the premises as such. The burden of proof, in this behalf, lay on him. The landlord is to prove only that some person other than the tenant was in exclusive possession of the demised premises and once it is so proved, then, the burden shifts on the tenant to show the nature of the occupation and the capacity in which the alleged person was in occupation of the same.

For the reasons recorded above, this revision petition fails and is dismissed with costs. However, the Petitioners are allowed three months'' time to vacate the premises; provided all the arrears of rent, if any, and the advance rent for three months, are deposited with the Rent Controller, with an undertaking, in writing, within a month that after the expiry of the said period of three months, the premises, in question will be vacated and the vacant possession there of would be handed over to the landlord.