Banta Singh vs Vishwa Nath Dogra and Another

J.V. Gupta, J.—The landlord-petitioner has filed this petition against the order of the Appellate Authority, Hoshiarpur, dated 13th of September, 1976, whereby the order of the Rent Controller directing the ejectment of the tenant had been set aside and consequently the ejectment application was dismissed. The landlord sought the ejectment of his tenant Vishwanath inter alia on the ground of subletting from the premises which consisted of a shop situated at Hoshiarpur. It was stated in the ejectment application that Vishwanath had transferred his rights under lease of the entire shop to Sarv Lal and had sublet the same without the written consent of the landlord. In the joint written statement filed on behalf of both the respondents, it was stated that the respondents are father and son being members of the Joint Hindu family inter se and with others had joint business and as such the question of transfer of tenancy did not arise.

On the pleadings of the parties, the Rent Controller framed the folio ing issues:-

Whether the respondent No. 1 has transferred the tenancy of the shop to respondent No. 2 without the consent of the petitioner-landlord? OPA

Whether the respondent No 1 has committed acts mentioned in para No. 2, sub para No. 3 to 6, and had impaired materially the value and utility of the shop in dispute? OPA

Whether the respondent No. 1 has ceased to occupy the shop in dispute, continuously for more than four months prior to the institution of the present petition? OPA

Whether the petitioner has been refusing to accept the payment of rent when offered by the respondents? OPA

Relief.

On issue No. 1, the Kent Controller came to the conclusion that the tenant Vishwanath had, after the commencement of this Act without the written consent of the landlord, transferred his rights under the lease in demised building and consequently the issue was decided in favour of the landlord. Issue No. 2 was found against the landlord and in favour of the tenant. The other issues were found in favour of the tenant, but in view of the finding on issue No. 1, an order of ejectment was passed against the respondents In appeal the finding on Issue No. 1 was reversed by the Appellate Court. It has been observed that "I see merit in the arguments adduced from the side of the counsel for the appellant that no presumption of sub-letting etc. could be drawn against the appellants, when there was no positive evidence regarding sub-letting and the premises in dispute was in possession of his own father respondent No. 2". Feeling aggrieved against this, the landlord has come up in revision to this Court.

The learned counsel for the petitioner vehemently contended that on the admitted facts the tenant Vishwanath has settled in Hariabad and is running his own shop that itself is sufficient to shift the burden on the tenant to prove that under what capacity his father Sarv Lal is occupying the premises is dispute. The plea in the written statement filed on behalf of them jointly that they being members of the Joint Hindu Family inter se and with others had joint business has not been proved on the record nor has any such finding been given by the Appellate Authority particularly when the learned Rent Controller has given a firm finding that Vishwanath has transferred all his rights under the lease in the demised shop, to his father and brothers. They are not a party to the rent deed and as such could not become co-tenants under the landlord. Vishwanath had no control over the shop in dispute. Thus according to the learned counsel, subletting is fully proved and the order of the Rent Controller directing the ejectment of the tenant is liable to be restored.

On the other hand, the learned counsel for the tenant vehemently contended that keeping in view the relationship between the tenant and the alleged sub-tenant being that of father and son, the question of sub-letting could not be inferred. Rather according to the learned counsel, it will be presumed that it was a case of license though it was not so pleaded in the written statement In support of this contention, he placed reliance on Gugan Mal and others v. Messrs Moti Lal Chand Mal (1962) 64 P.L.R. 372. He further contended that in any case on the evidence if the conclusion arrived at by the Appellate Authority is possible, this Court should not interfere with the same in the exercise of its revisional jurisdiction. In support of this, he cited a decision in Om Parkash v. Jugal Kishore and others 1971 R.C.J. 871. He also referred to the decisions in Dev Dutt Verma v. Ajit Singh and others 1965 C.L.J. 341; Shiv Parshad v. Brij Lal (1966) 68 P.L.R. 419; and V.N. Puri and others v. Bishan Lal Aggarwal 1972 R.C.J. 703, in support of the proposition that when the relationship of the parties is so close, no sub-letting can be presumed.

I have heard the learned counsel for the parties at great length. Admittedly no plea of license was taken in the written statement filed on behalf of the respondents jointly. Apart from the plea taken in the written statement that the respondents are the members of the Joint Hindu Family inter se and with others had joint business, there is no other evidence on the record except the statement of Vishwanath tenant, who appeared as RW 4 Even his father, Sarv Lal, had not come into the witness-box to support this assertion made in the written statement. In the cross-examination, he has admitted:-

My father used to run separate shop with his brothers but he used to visit this shop every evening. I run the shop at Hariabad and at Hoshiarpur. My family lives at Hariabad permanently but it visits Hoshiarpur also.

From the evidence of the record, it is the common case of the parties now that the tenant Vishwanath is running the shop at Hariabad and he alongwith his family lives there permanently. Under these circumstances it was for the tenant to prove that the business at Hoshiarpur which is being run by his father in the demised building is Joint Hindu Family business as pleaded in the written statement. If the respondents failed to prove the same, then they cannot be allowed to take the plea at this stage that the premises are occupied by Sarv Lal as a licensee. The authorities relied upon by the learned counsel for the tenant are not applicable to the facts of the present case, and each case is distinguishable.

Apart from that, the whole approach of the Appellate Authority is wrong and illegal. The well considered finding of the Rent Controller on issue No. 1 has been reversed by the Appellate Authority simply on the ground that no presumption of subletting could be drawn against the tenants when there was no positive evidence regarding the sub-letting and the premises in dispute being in possession of his father. In my considered opinion, this approach is wholly wrong and illegal. Of course initially it is for the landlord to prove the sub-letting as alleged by him in the ejectment application, but once it is proved that the tenant is not occupying the premises and the exclusive possession is with somebody else other than the tenant, than in these circumstances, it is for the tenant to prove that in what capacity the premises are being occupied by the said person. Arrangements between the tenant and the said person are only known to both of them. It is for them to plead if it is a case of license being the near relations or to set up a plea of joint business as was pleaded in the present case. Taking into consideration the plea in the written statement and the statement of the tenant Vishwanath before the Rent Controller, it was for him to prove that in what capacity his father Sarv Lal was occupying the premises. It may be that ordinarily if the relationship is that of a father and son subletting may not be presumed but it will depend on the circumstances and facts of each case. The plea of subletting taken by the landlord can be defended only if the tenant could prove that the business being run by his father Sarv Lal in the (sic) premises was that Joint Hindu Family. If this plea is not proved, than the presumption would be that the premises has been sublet by the tenant as admittedly, he is no longer in occupation of the same as he has settled at Hariabad with his family. It appears that the best evidence to prove that the business was joint has been withheld by the tenant. As observed earlier, even the father has not come into the witness-box to state that the business which was being run by him was a joint family business. Under these circumstances, the only conclusion possible is that the tenant has parted with the rented premises and has handed over the same to his father which under the law will amount to subletting.

It is unfortunate that the Appellate Authority has not discussed the evidence at all on issue No. 1 and has just set aside the finding of the Rent Controller without giving any cogent reasons.

For the reasons recorded above, this petition succeeds and the order of Appellate Authority is set aside and that of the Rent Controller directing the ejectment of the tenant is restored with costs. However, the respondents are allowed three months'' time to vacate the premises provided all the arrears, if any, and advance rent for three months are deposited with the Rent Controller within 15 days of the order.