Balbir Singh vs Balkiar Singh and Another

S.S. Grewal, J.—This revision petition is directed against the order of appellate authority, Patiala dated 22nd of May, 1989 whereby impugned order of ejectment passed by the learned Rent Controller, Fatiala, dated 19.10 1988 was set aside and it was directed that the parties shall be at liberty to have the question of title decided by the Civil Court.

Balbir Singh Walia (hereinafter referred to as the Landlord) through his General Attorney Mohinder Singh filed petition u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) for ejectment of Balkiar Singh, (hereinafter referred to as the tenant) and his brother Kulwant Singh on the ground that Balkiar Singh had sublet the demised permises to his brother Kulwant Singh without prior permission of the landlord in writing. Secondly, the eviction of the tenant from the residential premises was sought on the ground of non-payment of arrears of rent from 1. 2. 1971 onwards, inspite of repeated demands.

In their joint written statement, it was pleaded that Balkar Singh alongwith his brothers Kulwant Singh and Raghuwant Singh were in possession of the demised premises for more than 15 years continuously, peacefully and under a title hostile to the owner of the house, and as such had become owners of the suit properly by adverse possession. Apart from the denial of relationship of landlord and tenant between the parties, it was further pleaded that the tenant and his brothers were not liable to be evicted from the demised premises either on the ground of arrears of rent, or on the ground of sub-letting. In the replication, the landlord denied the averments in the written statement and reiterated those in the petition for ejectment. It was specifically denied that the tenant and his brothers had become owners of the suit property by adverse possession.

From the pleadings of the parties, the following issues were framed by the learned Rent Controller :--

Whether the respondent No. 1 is in arrears of rent ? OPA.

Whether the respondent has sub-let the demised premises to the respondent No. 2, if so, its effect ? OPA.

Whether there is relationship of landlord and tenant between the parties ? OPA.

Whether the petitioner has no locus standi to file the petition ? OPA.

Relief.

The learned Rent Controller under issue No. 3 held that there is relationship of landlord and tenant between the parties and under issue No. ! it was held that the tenant was in arrears of rent because they had not tendered any rent, whereas, under issue No. 2 it was held that the tenant had sub-let the demised premises to Kulwant Singh, without the written consent of the landlord and they were liable to be evicted. Under issue No. 4, it was held that the landlord had the locus standi to file the petition. As a result of the said findings, eviction of the tenant and sub-tenant from the demised premises was ordered by the learned Rent Controller.

On appeal, the appellate authority reversed the decision of the learned Rent Controller, holding that the relationship of landlord and tenant having not been established, the Rent Controller should have stayed his hands. On the basis of the said finding, the order of ejectment passed by the Rent Controller was set aside by the appellate authority. It was further held that the parties shall be at liberty to have the question of title decided by the civil court

Learned counsel for the parties were heard and the record was carefully perused On behalf of the landlord, it was mainly contended that the appellate authority has erred in law in holding that no relationship of landlord and tenant has been established between the parties. It was further submitted that the oral evidence led by the landlord coupled with the entries in the Municipal record and the admission of Balkar Singh tenant (RW 1) that he has no objection in case ejectment order in respect of house No. 2588/1 is passed, is sufficient to prove affirmatively that the relationship of landlord and tenant exists between the parties. Onus to prove affirmatively that the relationship of landlord and tenant exists between the parties would be on Balbir Singh landlord, and Balkar Singh tenant has merely to rebut the evidence produced on behalf of the landlord in affirmative. No rent note or other reliable evidence has been produced on the record to prove that Balkar Singh was inducted as a tenant in the premises in dispute by Balbir Singh. There is no reliable evidence that document AX relates to the premises in dispute in the present case. Name of the landlord is also not mentioned. It is, thus, not possible to hold on the basis of document AX or the other evidence produced by the landlord to hold that the premises in dispute are in occupation of Balkar Singh as a tenant under Balbir Singh landlord and not otherwise.

Reliance has been placed mainly on the entry from the Municipal Record (A1) (i.e. House Tax Assessment Register) which indicates that Jaswant Kaur has been shown to be owner of house No. 2388/1, whereas, Maha Singh is shown to be in possession of one room and one kitchen on payment of Rs. 40/-. Balkar Singh is shown to be in possession of one chaubara and one kitchen on payment of Rs. 40/-. A part from the fact no other particular, except, that the names of Jaswant Kaur, Maha Singh and Balkar Singh find mention in the said entry, it is not specifically mentioned in the said entry that amount of Rs. 40/- was settled, or, required to be paid as rent in respect of portion of the premises-in-dispute in possession of Balkar Singh. Nor it is specifically mentioned that Balkar Singh was occudying a portion of the house in question under his possession as a tenant under Balbir Singh or Jaswant Kaur. The abovesaid entry is House Tax Assessment Register relates to the year 1975-76. Neither any evidence has been led on behalf of the landlord as to the identity of the scribe of the entry, nor, the name, parentage or other particulars of the person who gave the requisite information about the said entry, finds mention therein. No reliable evidence has been produced on the record to prove the parentage or husband''s name of Jaswant Kaur, shown as owner of the house in dispute in the said entry. The entries of assessment register maintained by the Municipal Committee thus cannot be considered sufficient, to prove affirmatively that relationship of landlord and tenant exists between the parties.

I find support on this point from the Single Bench authority of this court in Jagan Nath v. Shanti, Devi 1976 Cri L. J. 312, wherein it was observed that such like entries do not in any way establish the existence of relationship of landlord and tenant between the parties To the similar effect is the decision of this Court in Asokan Vs. State of Kerala, .

Even otherwise the oral evidence produced on the record of the present case contradicts the entries in the Municipal record that Jaswant Kaur was the previous owner of the demised premises. Satwant Singh (PW2) cousin of Mohinder Singh and Balbir Singh deposed that Jaswant Kaur was his mother ; that till her death she acted as attorney on behalf of Balbir Singh, landlord, and received rent from Balkar Singh for about 15 years Mohinder Singh attorney of Balbir Singh landlord, while appearing as PW3 deposed that Balwant Kaur was the attorney of Balbir Singh landlord and she used to realise the rent before her death in the year 1980. No power of attorney from Balbir Singh landlord either in favour of Jaswant Kaur or Balwant Kaur aforesaid has been proved on the record of this case. Further more, there is no reliable evidence on the record to prove who actually gave the demised premises on rent to Balkar Singh, or, settled the rent with him. In these circumstances mere suggestion put to the attorney of the alleged landlord to the effect that till the death of Balwant Kaur rent was being paid by the respondents to her would not be sufficient to prove affirmatively that relationship of landlord and tenant between Balbir Singh and Balkar Singh exists, particularly when it is no where pleaded that Balwant Kaur was the original landlady or Balbir Singh succeeded to the property left by her, on the basis of Will, or otherwise was entitled to receive rent from Balkar Singh either on his own behalf, or, on behalf of previous landlord. Balkar Singh, no doubt admitted his possession over the premises in dispute. He, however, pleaded that he along-with his brother Kulwant Singh and Raghuwant Singh had been in possession of house in dispute for more than 15 years continuously and have become owners thereof by way of adverse possession. Such an admission read as a whole would not be sufficient to prove affirmatively that the relationship of landlord and tenant exists between the parties as pleaded on behalf of the petitioner-landlord.

Faced with this difficulty, it was submitted that the petitioner may be permitted to produce additional evidence in the instant case in order to prove sale deed dated 26-2-1965 executed by Nikka Ram in favour of Jaswant Kaur and others, including Balbir Singh ; power of attorney dated 28-10-1977 executed by Jaswant Kaur in favour of Balwant Kaur; sale deed dated 21-11-1979 executed by Jaswant Kaur in favour of Mohinder Singh and Will executed by Jaswant Kaur in favour of her son Balbir Singh concerning the house in question and power of attorney dated 7-12-1979 executed by Balbir Singh in favour of Balwant Kaur. No cogent reason was given for non production of these documents earlier on, even though these documents remained in possession of the landlord. The only reason advanced for grant of permission to lead additional evidence on behalf of the landlord is based on non framing of any specific issue concerning acquisition of ownership of the house in dispute by adverse possession as pleaded by the respondents including Balbir Singh tenant. The permission to lead additional evidence was sought for the first time in the present revision petition on the ground that on legal advice the petitioner was misled in not producing the above noted documents earlier on, to prove that he is the owner of the house in dispute, because of non-framing of specific issue about existence of relationship of landlord and tenant between the parties. It was further submitted on behalf of the landlord-petitioner that on the advice of his counsel, these documents could not be produced earlier on before the Rent Controller. This according to the petitioner-landlord would be helpful to prove affirmatively that the petitioner is the owner of the house in dispute and would be sufficient to rebut the plea raised by the tenant and other respondents that they had become owners of the said house by adverse possession.

It is true that the learned Rent Controller did not frame any specific issue as to whether Balkar Singh and Kulwant Singh and Raghuwant Singh had become owners of the house in dispute by adverse possession. However, specific issue had been framed whether relationship of landlord and tenant exists between the parties. Specific issue has also been framed about locus standi of the petitioner to file the petition.

These issues particularly the one in respect of locus standi of the petitioner to file the petition would also cover the plea taken on behalf of the petitioner-landlord that he is the owner of the pro-perty-in-dispute as well as the plea raised on behalf of the tenant and others, that they had become owners in respect of the said property by adverse possession. At any rate, the parties fully knew their case from the very beginning and had led evidence before the Rent Controller. Thus, mere omission on the part of Rent Controller to frame any specific issue on this aspect of the case would not make any material difference. Besides no material prejudice is shown to have been caused to the petitioner on account of non framing of any specific issue in this regard. It is, thus, too late in the day for the landlord to contend that because of non framing of any specific issue, on the advice of his counsel he could not produce aforesaid documentary evidence in his possession earlier on for proving that he is the owner of the house-in-dispute.

There is no dispute that in view of facts and circumstances in a particular case, the appellate authority has jurisdiction u/s 15(4) of the East Punjab Urban Rent Restriction Act (III of 1949) to admit additional evidence, as held by the Apex Court in Yudhister v. Ashoh Kumar 1987 91 P. L. R 11 . However, in the instant case, no cogent reason for granting permission 1o the landlord to lead additional evidence at this belated stage has been made out. Permission to lead additional evidence would also tantamount to permit the landlord to fill in the gaps in his evidence produced by him before the Rent Controller, at this late stage. This is not legally permissible as adequate opportunity had already been granted to the landlord to produce his entire evidence, by the Rent Controller.

I find support on this point from Single Bench authority of this Court in Rattan Chand v. Charan Singh 1978 (1) R. C. J. 273 wherein it was observed as under : -

"The landlord having been afforded full opportunity to lead his evidence, the Appellate Authority will not be entitled to allow the additional evidence except on the principles similar to those contained in Order 41 Rule 27, Code of Civil Procedure. Supplementary statement of the landlord was recorded by the Appellate Authority in this case for a proper decision and doing justice between the parties but as a matter of fact this was done only to fill in gaps in the evidence of the landlord as is evident from its observations noticed above. There was, therefore, justifiable ground for recording supplementary statement of the landlord in this case".

On examining the material evidence already produced on the record it is quite apparent that proper judgment can be pronounced in the present case even in the absence of additional evidence sought to be produced by the landlord. Thus in view of the facts and circumstances of the present case it can neither be said that the additional evidence sought to be produced is necessary for effective adjudication of the matter in controversy between the parties or for proper pronouncement of the judgment or for any other substantial cause, as contemplated in order 41 Rule 27, Code of Civil Procedure.

In order to grant permission to lead additional evidence, under Order 41 Rule 27 CPC, according to the principles laid down by the Apex Court in Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 . the true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.

Since, there is already sufficient material on the record of this case to pronounce the judgment, I do not find it necessary at this belated stage to permit the landlord to lead additional evidence sought to be produced. His application for leading additional evidence is accordingly dismissed.

No other point has been urged.

For the foregoing reasons, I do not find any merit in this revision petition and the same is hereby dismissed. However, in view of the substantial questions of law involved in this case, both the parties shall bear their own costs, throughout.