Brij Lal vs Raj Singh and Others

Ashok Bhan, J.—Petitioner landlord (here inafter referred to as the landlord) let out a single bay shop shown as red in the site plan, Exhibit P-4 as per the rent note Exhibit P-2/1 with effect from 1-11-1969 at the rate of Rs. 50/- per month besides house tax to one Ghansham Dass and Raj Singh. Ghansham Dass died on 26-3-1976 Landlord filed an application u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) against Raj Singh and one Des Raj alleged subtenant alleging therein that Ghansham Dass surrendered the tenancy sometime before his death and Raj Singh alone continued as tenant. Ejectment of Raj Singh was claimed on the following grounds :-

(i) Non payment of rent from 1-3-1977 to 31-3-1979 ; and

(ii) Sub letting in favour of Des Raj respondent No. 2.

Neither of these two respondents contested the petition, Smt. Shakuntla Devi widow of Ghansham Dass and her minor children though their guardian and mother Smt. Shakuntla Devi filed an application under Order 1 Rule 10 C.P.C. for being impleaded as a party to the ejectment application. It was alleged that Ghansham Dassalone was the tenant in the premises and he died on 26-3-1976 and thereafter Smt. Shakuntla Devi etc. respondents No. 3 to 7 being the successors-in-interest of tenancy rights of Ghansham Dass (hereinafter referred to as respondents No. 3 to 7) were carrying on business in the shop in dispute and that the shop had been in their exclusive possession since the death of Ghansham Dass. A prayer was made that they be impleaded as party to the ejectment petition.

This application was resisted by the landlord on the ground that only Raj Singh was the tenant in respect of the shop and, therefore, heirs of Ghansham Dass could not be made party to the suit. The Rent Controller vide order dated 23-5-1979, allowed the application of heirs of Ghansham Dass and directed the landlord to put in an amended ejectment petition impleading Shakuntla Devi etc. as respondents No. 3 to 7.

Amended petition was filed on 1-6-1976 against Raj Singh (respondent No. 1), Des Raj (respondent No. 2) and respondents No. 3 to 7 Shakuntla Devi legal representatives of Ghansham Dass. The ejectment application was contested by respondents No. 3 to 7. In their written statement, it was stated that Ghansham Dass alone was the tenant in the shop and after his death his legal representatives succeeded to the tenancy rights. It was denied that Raj Singh was ever tenant in the premises or had sublet the same in favour of respondent No. 2. Although no relief was sought by the landlord against respondents No. 3 to 7 but on 15-7-1979, respondents No. 3 to 7 made an application for tendering the rent due upto-date which was ultimately tendered by them.

Replication was filed. On the pleadings of the parties, Rent Controller framed the following issues : -

Whether respondent No. 1 is the only tenant under the petitioner as alleged ? OPP

Whether the respondent No. 1 has sublet the premises in question to respondent No. 2 as alleged ? if so, to what effect ?

Whether respondents No. 3 to 7 are tenants in possession of suit premises as alleged ? If so, to what effect ?

If issue No. 3 is proved whether the respondents are liable to ejectment on the grounds of non-payment of rent ?

Whether the tenancy of the respondent is duly terminated ? If so, to what effect ?

Relief.

Rent Controller dealt with issues No. 1 and 3 together and found that initially Raj Singh and Ghansham Dass were tenants in the shop. Some time bafore his death, Ghansham Dass surrendered his tenancy and respondent No. 1 alone became the tenant of the premises in dispute. Issue No. 2 was also found in favour of the landlord and it was held that respondent No. 1 had sublet the shop in favour of respondent No. 2. Under issue No. 4. it was found that arrears of rent having not been tendered by Raj Singh he was liable to be evicted on the ground of non-payment of rent as well Issue No. 5 was not decided being of no consequence. In view of the findings recorded, the Rent Controller passed an order of ejectment against respondents No. 1 and 2 and allowed them one month''s time to hand over the vacant possession of the premises in dispute

Feeling aggrieved by the said order, respondents No. 3 to 7 filed an appeal before the Appellate Authority, Appellate Authority reversed the order of the Rent Controller and held that Ghansham Dass was the sole tenant in the premises and Raj Singh was not a tenant along with him. Finding on issue No. 2 was also set aside and it was held that the premises had not been sublet. Surrender of tenancy of Ghansham Dass during his life time was not, accepted. It was held that there was no evidence to show that Ghansham Dass ever surrendered his tenancy in respect of the shop. It was also held that the tenancy rights of Don-residential buildings in Haryana were heritable.

I have heard the learned counsel for the parties at length and find myself in agreement with the finding recorded by the Appellate Authority.

Work of tailoring was being carried on in the tenanted premises right from the beginning. Ghansham Dass was a Mahajan whereas Raj Singh was Harijan. Landlord while appearing as PW-1 himself admitted that Raj Singh had been running a Kariana shop since about 1974 or 1975. Even according to Raj Singh himself who appeared as RW-3 he had been carrying on separate business in separate premises for the last eight years. His statement was recorded on 24-10-1980. Eight years would work out to be the year 1972. No partnership deed between Raj Singh and Ghansham Dass has been produced. There is no cogent evidence to show that Raj Singh ever worked in the premises in dispute. No books of accounts have been produced There is nothing on the record to show that Ghansham Dass and Raj Singh used to share the profit and loss in the partnership business Landlord has stated that Raj Singh paid him rent till March 1977. There is no evidence to prove the factum of payment of rent by Raj Singh to Brij Lal. PW-2 Raja Ram and Prem Chand PW-3 showed their ignorance as to from whom the landlord was accepting the rent. Raj Singh as RW-3 stated that both he and Ghansham Dass used to pay rent. He further stated that after the death of Ghansham Dass, he had gone to pay the rent to Brij Lal. No receipts showing the payment of rent were produced by him. It was stated that landlord had promised to send the receipts later. As against this, Smt. Shakuntla Devi produced receipts of the rent marked A. B C. showing payment of rent for this period. These receipts have been issued in favour of Ghansham Dass and Raj Singh, There receipts have come from the custody of Shakuntla Devi and it could not be explained as to how these receipts came to the possession of Smt Shakuntla Devi when actually Raj Singh was paying the rent. Raj Singh appeared as PW-3 and supported the version of the landlord Des Raj the alleged sub-tenant (respondent No. 2) appeared as RW-2 and supported the version of respondents No. 3 to ? and deposed that the premises in dispute ware let out to Ghansham Dass only who had been carrying on the business of tailoring in the demised premises and after his death the business is being earned on by his widow with the help of her minor children It has further been stated that he is brother of deceased Ghansham Dass and used to go to the demised premises occasionally to assist Smt. Shakuntla Devi in her business. Smt. Shakuntla Devi appeared as RW-1 and categorically stated that she had been paying the rent after the death of her husband to the landlord and that Raj Singh never paid the rent. She produced receipts marked A, B and C dated 13.5.1976, 17 6.1976 and 8 3.1977 (authenticity of these receipts was not objected to and, therefore, can be read into evidence) whereby the landlord received Rs. 240/- Rs. 410/- and Rs. 140/- respectively. The suggestion made to Smt. Shakuntla Devi in cross-examination was that these receipts had not been issued by the landlord to her but to Raj Singh who had passed on the same to her. I concur with the finding recorded by the Appellate Authority that Ghansham Dass alone was the tenant and the name of Raj Singh had been incorporated only to provide a handle to the landlord to evict Ghansham Dass as and when the landlord wishes to do so Another circumstance indicative of this fact is the entry in the house tax assessment register Exhibits R-l and R-2 which pertained to the year 197475 and the assessment year 1976 79. In Exhibits R-1 and R-2, the occupant of the shop has been mentioned to be only Ghansham Dass. Had Raj Singh been in occupation of the shop along with Ghansharm Dass, there is no reason as to why his name does not find mention in the Municipal record relating to the house tax. 7

Landlord himself has stated in his statement that since the year 1974-75 Raj Singh bad been carrying on a separate shop of Kariana in another premises. Ghansham Dass died in March 1976. The present petition for eviction was filed in April, 1979. There is no explanation given by the landlord as to why the proceedings for eviction were initiated after a lapse of three years. The only inference which can be drawn is that he was receiving the rent from Smt. Shakuntla Devi and that the shop was not in possession of Raj'' Singh. As a consequence thereof, the question of creating a sub-tenancy by respondent No. 1 in favour of respondent No. 2 does not arise. With the help of counsel for the parties I have perused the oral evidence on the record. A combined reading of the statements of all the witnesses of the landlord and the respondents lead me to the conclusion that the premises were let out by the landlord to Ghansham Dass only who had been carrying on the business of tailoring in the demised shop ; that Raj Singh was not a co-tenant in the premises in dispute. After the death of Ghansham Dass the tenancy rights were inherited by respondents No. 3 to 7. Apex Court in Narain and Others Vs. Om Prakash Gupta, . has held that in Haryana tenancy of non-residential buildings is heritable. The question of creation of sub tenancy of Raj Singh in favour of respondent No. 2 Des Raj, therefore, did not arise as he was carrying on a separate business of Kariana. I find no substance in the plea taken by the landlord that Ghansham Dass had surrendered his tenancy rights in the shop immediately before his death Even if it is assumed for the sake of arguments that Ghansham Dass and Raj Singh were jointly inducted as tenants in the demised premises even then after the death of Ghansham Dass his legal representatives, that is respondents No. 3 to 7 inherited the tenancy rights. In the absence of sub-letting, they cannot be ejected from the premises in dispute

Although the landlord did not claim any relief against respondents No. 3 to 7 but still after the filing of the amended petition on 1.6.1979, the tenants on 15.6.1979 filed an application for permission to tender the rent which was ultimately tendered. Because of this fact, I find no substance in the submission of the counsel for the landlord that the tenants should be ordered to be ejected for not tendering the rent on the first date of hearing. At the first instance the landlord did not claim any relief against respondents No. 3 to 7. Moreover, respondents No. 3 to 7 offered to make the tender within 15 days of the filing of the amended petition. For this reason, respondents No. 3 to 7 cannot be ejected.

As a consequence of the findings recorded above, I find no merit in this revision petition and the same is dismissed with costs, which are assessed at Rs. 500/-.