Bundu Khan and Another vs Smt. Bhagwati Devi and Another

V.K. Jhanji, J.—This will dispose of Civil Revisions No. 97 and 1849 of 1981, both preferred by the tenant.

In brief, the facts are that one Rehmatulla Khan was tenant under Bhagwati Devi (respondent herein). Rehmatulla Khan died somewhere in the year 1973. In February, 1976, respondent filed ejectment petition against his sons, namely Bundu Khan and Vakil Khan on the allegations that Bundu Khan was in possession of the shop with effect from 1.2.1974 on a rent of Rs. 100/- per month. Their ejectment was sought on the ground that Bundu Khan was in arrears of rent with effect from 1.2.1974 and secondly, he had sublet a portion of the shop to his brother Vakil Khan and also on the ground that the landlady requires the shop for the purposes of starting business by her sons. The petition was contested by Bundu Khan on the ground that their father was a tenant on a rent of Rs. 13/- per month and during his life time, they were joint with their father in his business and they inherited the tenancy. They denied that the rent was increased to Rs. 100/- per month as alleged by the landlady. The allegations of subletting the premises and requiring the premises for the use and occupation of the landlady were also denied. The Rent Controller held Bundu Khan to be the tenant and ordered his ejectment on the ground of subletting and also on the ground of non payment of rent. Rent was held to be Rs. 100/- per month. On appeal, the Appellate Authority affirmed the order of the Rent Controller. Now, the respondent has come in revision in this Court.

The Authorities below in order to hold Bundu Khan to be tenant, relied upon the Judgment of this Court in Sarwan Kumar and Ors. v. Piara Lal and Ors. 1 (1979) 81 P.L.R. 271 wherein it was held that tenancy of no-residential building is not heritable. In view of this Judgment, it was assumed that since tenancy was not heritable, Bundu Khan must have entered into a contract of fresh tenancy with the respondent. Reliance was also placed on the house-tax assessment register where rate of rent is shown to be Rs. 100/- per month.

Having heard the learned counsel and on going through the record so referred during the course of their arguments. I am of the view that the order under revision cannot be sustained. As per the averment made in the ejectment petition and as per the statement made by Ganga Ram, attorney of the landlady, the shop in dispute which was on rent with Rehmatulla Khan, remained vacant for almost six months after the death of Rehmatulla Khan when Bundu Khan took it on rent. The assertion that the shop remained vacant and thereafter Bundu Khan took the same on rent, cannot be accepted for the reason that nowhere the landlady has pleaded or brought any proof on the record that on the death of Rehmatulla Khan, shop was vacated by his sons. Landlady has also not explained as to how the shop remained vacant for six months or why the same was vacated by his sons who were joint in business with their father. The landlady has also alleged that the premises were let out to Bundu Khan ith effect from 1.2.1974 meaning thereby that Bundu Khan is alleged to be in arrears from the date when the contract of fresh tenancy is alleged to have come into being. This story does not stand to reason because if there had been fresh tenancy, why the landlady would agree to give it on rent without accepting rent even for a month. Admittedly, neither any rent note nor any rent receipt was executed at the time of contracting fresh tenancy. As per the statement of attorney who is her son, tenancy was created in his presence and one Girraj. When Girraj appeared as AW-4, he stated that at the time when the shop was let out to Bundu Khan, only Bhagwati Devi was present. The landlady has failed to explain the contradiction between the statement of attorney and that of the witness. Attorney, in his statement, has admitted that receipt, Ex-D1 bears the signatures of his mother, Shrimati Bhagwati Devi. Ex.D1 (rent receipt) was through executed on 23.5.1976, yet it is for payment of rent with effect from 1.8.1973 to 31.1.1974 at the rate of Rs. 13/- per month in the name of Rehmatulla Khan C/o Bundu Khan. According to the statement of Bundu Khan In Court, this rent receipt was executed by Bhagwati Devi when compromise, Ex.DX was arrived at between the parties before the police. In the compromise, Ex.DX. parties had agreed not to litigate till the matter is finally decided by the Court. It also finds mention that the shop was on rent with Rehmatulla Khan for Rs. 13/- per month. Payment made under receipt also finds mention therein. Receipt, Ex.D1 and compromise, Ex-DX show that payment of rent was made @Rs. 13/- per month even after the death of Rehmatulla Khan. According to the counsel for the respondent, compromise, Ex-DX should not be taken into consideration because the same was not proved on record in accordance with law. I am not prepared to accept this contention because petitioners had summoned RW-1 constable of the police station to produce the compromise. On his failure to produce the compromise, compromise Ex.DX was proved by Bundu Khan when he appeared in Court as RW-5. Counsel also made reference to the written statement filed in the subsequent ejection petition in order to contend that in the written statement, admission was made with regard to rate of rent. I have gone through the written statement, and I find that it contains no such admission. In this written statement tenant has stated that the matter with regard to rate of rent is already sub-judice and requires no answer. This statement cannot be treated to be admission either expressly or impliedly. The Judgment of this Court in Sarwan Kumar''s case (Supra) which was relied upon by the Rent Controller for assuming that Bundu Khan, in view of the legal position then, must have entered into a fresh tenancy, stands over-ruled by Full Bench Judgment of this Court in Harish and Ors. v. Kirpal Ram, 2 (1986) 89 P.L.R. 164(FB) wherein it was held as under:-

"Held, further, that tenancy in respect of a ''non-residential building'' as defined in Section 2(d) of the Act, in the event of the death of the tenant devolves on the heirs of the deceased tenant in accordance with the general law of succession applicable to the tenant and the heirs, who step into the shoes of the deceased tenant continue to enjoy the protection afforded by the Haryana Urban (Control of Rent and Eviction) Act, 1973."

In view of the legal position now settled by the Full Bench in Harish Chander''s Case (supra) in the event of death of a tenant, tenancy in respect of non residential building would devolve on the heirs of the deceased tenant in accordance with general law of succession applicable to the tenant and the heirs. In this case, both the sons, namely, Bundu Khan and Vakil Khan, inherited tenancy on the death of their father Rehmatulla Khan and, therefore, their ejectment cannot be ordered on the ground of subletting by Bundu Khan to his brother Vakil Khan as both of them would be tenant in common.

Faced with this situation; Mr. Hemant Gupta, Advocate counsel for the respondent, referred to the entries in the house tax assessment register and contended that Finding with regard to rate of rent was arrived at on the basis of these entries and this being a finding of fact, this court should not interfere. I find no merit in this contention as well. Entries in the house tax assessment register cannot be taken to be sacrosanct for determining the rate of rent. This entry is only a piece of evidence and has to be read in context with other material which may have come on record. In the present case, as already noticed there is no rent note or rent receipt but in receipt, Ex-D1 which was executed on 23.5.1976 i.e. much after the death of Rehmatulla Khan, rent is shown to be Rs. 13/- per month. All this evidence read together would only lead to one conclusion that there was no fresh tenancy as alleged in the ejectment petition between Bhagwati Devi and Bundu Khan and rent remained as Rs. 13/- per month which was being paid by Rehmatulla Khan during his life time.

For the reasons recorded above, Civil Revisions No. 97 and 1849 of 1981 are allowed and the orders of the Authorities below are set aside. In consequence thereof, the order ejecting the petitioner stands set aside, No costs.