Chaju Ram and Anr. vs Jagdish Kumar

Respondent's suit for ejectment of a shop against the appellants was dismissed by the trial court. On appeal the judgment and decree of the trial

court was reversed by the 1st. Appellate court and suit for ejectment was decreed. The defendents have come up in second appeal to this court.

The plaintiff had brought a suit for ejectment on the ground that the suit shop had fallen to his share by virtue of an arbitration award. Plaintiff's

brother Lakshmi Chand before the arbitration award had given the suit shop on rent to the defendent No. 1 on a monthly rent of Rs. 14/ with effect

from Har 2004 (Bk). The plaintiff wanted to reconstruct the suit shop to increase the accommodation so as to make it more advantageous for use.

Therefore, he claimed a decree for ejectment. The other ground on which the decree for ejectment was claimed was that of subletting. It was

contended that the defendent No. 1 had sublet the suit shop to his brother defendent No. 2. which fact has rendered the defendent liable for

ejectment. The defendents had denied the ownership as also the plaintiff's claim of ejectment. The trial court framed the following issues in the suit:

1/ Whether the suit shop has fallen in the share of the plaintiff by virtue of an arbitration award and he is entitled to file the suit? Opp.

2/ Whether defendant No. 1 has sublet the suit shop to defendant No. 2? If so what is its effect on the suit? Opp.

3/ Whether the plantiff wants to reconstruct the said shop alongwith its adjoining shop? Opp.

4/ In case issue No. 3 is proved whether the reconstruction will be in the benefit of public? Opp.

5/ What will be the comparative advantage to the parties in case of ejectment? Opp.

6/ Whether the suit is hit by resjudicate and is not maintainable? Opp.

7/ Whether the suit is hit by resjudicate and is not maintainable? Opp.

8/ Relief.

Issue No 1 relating to the ownership was decided in favour of the plaintiff Issue No. 2 regarding subletting was decided against the plaintiff in

favour of the defendents. Issue No. 3. also was decided against the plaintiff and it was held that plaintiff does not want to reconstruct the shop

alongwith its adjoining shop Other issues reconsequcntly had paled into insignificance because the necessity for reconstruction was repelled by the

trial Court' The 1st appellate court has reversed the finding on issue regarding subletting. It held that the defendant No 1 had sub let the suit shop to

his brother defendant No. 2, therefore both the defendants were liable to be ejected. The 1st appellate court has concluded that the original tenant

in this case has parted with the whole tenanted accomodation since long and he has utterly failed to explain as to in what capacity defendant No. 2

was occupying the shop in question. Therefore it was concluded that the defendent No. 1 has sublet the shop to defendant Ho 2 and findings on

issue No 2 were reversed as a result of which decree for ejectment was granted to the plaintiff on other issue it agreed with the findings of the trial

court in substance.

4, The 1st appellate court has also referred to certain judgments of the previous litigation between the parties. The first two suits were filed by

Lakshmi Chand in 1960 and 1961 respectively against the tenant Chajju Ram which were dismissed. The third suit was filed by the respondent

which also was dismissed.

That 1st appellate court has also held that the defendants were not carrying on joint business and the defendant No. 1 has not appeared as his

witness to rebut the fact of subletting, therefore it was not possible for the 1st appellate court to hold that the two defendants were doing family

business. Reliance was placed on a Madhya Pradesh authority reported in 1977 Rent Control Journal: 27.

Mr. Bhagotra has vehemently argued that findings on issue No. 2 could be reversed by the 1st appellate court only on the ground that the

defendent No. 2 was in possession of the suit shop. He submitted that in order to prove the subletting by a tenant, two facts must coexist and must

be established by the landlord, One, that possession of the shop was transferred by the tenant to some one also without the consent, express, or

implied, of the landlord. Second that the tenant was receiving the rent from the subtenant in lieu of subtenant's occupation of the demised premises.

Mr. Bhagotra contends that in the absence of the aforesaid two facts, the first appellate court was incorrect to hold that there was subletting by the

defendant No. 1 in favour of defendent No. 2. It is contended that defendents 1 and 2 are the real brothers and they are doing joint business. One

brother has a shop at Puldoda and the other is doing business in the suit shop. Occupation of the suit shop by a member of joint Hindu family

would not amount to subletting and the findings of first appellate court was therefore erroneous.

Mr Bhagotra has relied on 1980 Rent control Reporter page 320 (Syed Feroze Ali Shah Vs. Syed Jamil Ali Shah and anr) In the said authority

it was laid down that where brother of a tenant used to sit on shop and there was no evidence to show that tenant was receiving any consideration

from his brother, this could not be held to be subletting, because parting with possession by tenant in favour of his brother was not proved. He has

also relied on 1985 (2) Rent control Reporter page 314 '(Shri Bhagwan P. Sajnavi Vs. Shri Ranbir Singh) to show that parting with possession

postulates parting with legal possession, Mere user of premises by person other than the tenant is not parting with possession,

Applying this principle to the fact of the case which are brought before the trial court by the parties in the shape of evidence and documents, it is

to be seen whether defendant No. 1 has sublet the property to the defendent No. 2 or it is a mere user of the property by the defendant No. 2 in

which there is no parting with possession of the demised premises on the part of the defendent No. 1.

The burden of proof about the subletting by defendant No, 1 in favour of defendant No. 2 was on the plaintiff. 'Plaintiff has"" adduced evidence

which suggests that the defendant No. 2 was conducting business on the suit shop. It is not proved by the plaintiff that defendant No. 2 was paying

any rent to the defendant No. 1 or the defendant No.1 was receiving any rent from the defendant No. 2 in lieu of defendant No. 2's occupation of

the suit shop. On the other hand the defendant No. 1 has regularly paid the rent to the plaintiff. This aspect of the case has not been proved by the

plaintiff nor has the same been taken into consideration by the 1st appellate court. Defendant has on the other hand proved that business

conducted in the suit shop was joint business of the defendant No. 1 and defendant No. 2. Defendant No. 2 has appeared as a witness and has

admitted occupation of the suit shop as a member of the joint Hindu family with defendant No. 1 In these circumstances it is not proved on record

that defendant No. 1 has sub let the suit shop in favour of defendant No. 2. There is no evidence to indicate that there was legal parting with

possession of tfie shop by the defendant No. 2 and in lieu of that defendant No. 2 was paying rent to defendant No. 1. In the absence of these two

Considerations it is impossible to conclude that there has been a subletting in favour of defendant No. 2 made by defendant No. 1. The findings on

issue No. 2 therefore could not be reversed by the 1st appellate court and in my opinion the finding of the 1st appellate court in this regard is liable

to be set aside as it is not warranted in the facts and circumstances of the case. The 1st appellate court has drawn conclusions on surmises and

conjectures. It has not properly appreciated the evidence which it was bound to appreciate in the light of law applicable to the case?

As regards plaintiffs need to have the suit shop for reconstruction rebuilding to achieve public benefit or advantage, the findings of the two

courts are concurrent. The issue is decided against the plaintiff and ejectment on the basis of reconstruction is refused.

Mr. Sharma appearing for the respondents has stated that a reasonable requirement for construction is to be judged in the light of provisions of

Rent Control Act and the relief is not to be refused merely because some other statute prohibits the construction at a particular place and provides

some distance to be left from the centre of the road.

It may be stated that plaintiff was granted permission to reconstruct on the ground that he would not contravene the provisions of Ribbon

Development Act which enjoins upon him to leave a particular distance from the centre of the road while1 reconstructing/rebuilding his shop. In

view of the provisions of Ribbon Development Act and in the light of the permission plaintiff was not able to construct a shop of the same size

which was in existence. Size of the shop was considerably reduced by about 15 feet. Therefore no public benefit was to be achieved by

reconstruction of the shop. The trial court as also the 1st appellate court has taken this fact into consideration on the basis of the report of the

Commissioner which was appointed as also on the basis of Ribbon Development Act which were made condition in the permission granted to the

plaintiff for reconstruction. After considering the pros and cons of public benefit would be served in the shops are permitted to be reconstructed.

This being a finding of fact is not open to challenge.

Mr. Sharma wanted this court to reopen the findings as regards reconstruction of the shops by him and cited some authorities that this court in

second appeal can reopen these findings. So far as power of this court to reopen the findings in second appeal is concerned, it cannot be disputed

that the said power is not vested in the court. In second appeal legality of entire judgment is to be tested. Even if the respondent has not filed any

appeal, which he could not file because the ultimate judgment was in his favour, this court can examine the findings in the second appeal and if they

suffer from any legal infirmity, those may be upset or modified.

In the present case findings as regard reconstruction of the shop rendered by the two courts below against the plaintiff are bassed on fact and

on examination I have found that the two courts below have taken care to see that while considering the need of the reconstruction of the premises,

the landlord should not be permitted to violate the provisions of statutory laws which enjoins upon the londlord to construct a building in a

particular manner. If the statutory provisions are adhered to, then there is no public utility which is to be achieved by reconstruction because the

size of shop is considerably reduced and no public benefit would be served by reconstruction of the shop. I do not see any infirmity in the findings

of the courts below in so for as the finding on the plea of reconstruction raised by the landlord is concerned.

The finding of issue No 2 of the 1st appellate court is therefore set aside as being erroneous fit is held that there has been no subletting by the

defendant No. 1 in favour W defendant No. 2 Defendant No. 2 cannot be held to be a subtenan.

The result is that the judgment and decree of the 1st appellate court is liable to be set aside and the same is accordingly set aside. The

judgment and decree of the trial court dated 11101976 is restored. The plaintiff suit is accordingly dismissed. There will be no order as to costs.