Krishan Chand and another vs Gobind Ram and another

J.V. Gupta, J.—This is landlords'' petition in whose favour eviction order was passed by the Rent Controller but the same was set aside in appeal. The landlords Krishan Chand and Bhagwan Dass sought the ejectment of their tenant Gobind Ram from the shop in dispute inter alia on the ground that the tenant had sublet the same to his son Ishwar Dass, respondent No. 2. It was pleaded that the shop in dispute is a part of the residential house and was let out to Gobind Ram at the rate of Rs. 600/- for one year from May 4, 1966 to May 3, 1967 vide rent note Exhibit D-1. After the expiry of the said period of one year Gobind Ram continued to be in possession as a statutory tenant. The said Gobind Ram tenant has sub-let the building in question and transfer red its possession to Ishwar Dass and he himself has shifted to village Sekha where he is residing. The other ground taken was that Dev Raj son of Krishan Chand landlord is a law-Graduate and wants to set up his office for practicing law and as such the building is required for his office. The allegations made in the ejectment application were controverted by the tenants The learned Rent Controller negatived the plea of the landlords as to the requirement of the building for his son who wanted to start his practice in law. However, on the question of subletting it was found that from the facts and circumstances appearing from the documents relating to the period prior to 1978 showing that the respondent No. 2 i. e., Ishwar Dass is in exclusive possession of the building and thus it was clear case of subletting. Consequently, eviction order was passed. In appeal the learned Appellate Authority reversed the said finding of the Rent Controller and came to the conclusion that the landlords have failed to prove subletting by Gobind Ram in favour of his son Ishwar Dass. As a result of this finding ejectment application was dismissed. Dissatisfied with the same the landlords have filed this Court.

During the pendency of this petition the landlord also moved a Civil Miscellaneous application No. 1436-CII of 1985 for bringing on record the subsequent events. Vide orders dated March 20, 1985 thi6 application was directed to be heard with the main case. It is to be dismissed on the short ground that the demised premises is a non-residential premises and, therefore, the landlords are not entitled to eject their tenant from the demised premises on the ground of his bonafide requirement of his son.

The learned counsel for the petitioners contended that from the evidence on record it is amply proved that the business being carried on in the demised shop exclusively belong to Iswar Dass, the son of the tenant Gobind Ram and, therefore, once it is so proved that Ishwar Dass is the sole proprietor of the business carried therein, then it could not be held that the subletting was not proved. According to the learned counsel the tenant himself was living at village Sekha and had his own shop there and on that account also it could not be maintained that he was in occupation of the shop in dispute as well. In support of his contention he referred to Dr. Vijay Kumar and others v. M/s. Raghbir Singh Anokh Singh 1973 R.C.R. 520, Kasturi Lal v. Chanan Ram 1978 (2) R.L.R. 364, Banta Singh v. Vishwa Nath (1981) 83 P.L.R. 763, Narinder Kimar Madan v. Madan Mohan Lal 1978 (2) R.L.R. 356, Chandigi Ram v. Firm Dai Chand Lachman Dass 1980 (2) R.L.R. 402 Sat Narain and another v. Raghbir Singh and others 1983 (1) 85. R.L.R. 85.

I have heard the learned counsel for the parties and I have also gone through the relevant record and the case law cited at the bar.

The main question in this case to be determined is whether the tenant is in possession of the demised premises or not. Even if it be assumed that the business carried therein is in the name of his son Ishwar Dass and he is the sole proprietor thereof as is evident from the documentary evidence brought on the record even then the landlords could succeed if it could be proved that Gobind Ram was not in occupation of the demised premises. Both Gobind Ram and Ishwar Dass appeared in the witness-box as RW-5 and RW-6 respectively. They have categorically stated that both father and the son run business in the demised shop and are in occupation thereof. If once the tenant is in occupation of the demised premises then it becomes immaterial as to who is the proprietor of the business carried therein. It is all the more relevant in the present case because the premises were let out vide rent note Exhibit D-l dated May 4, 1966. The licence in the name of Ishwar Dass son of the tenant Gobind Ram was issued on May 9, 1966 i. e. four days after the execution of the rent deed. Since then the same business is being carried on. The application for ejectment was filed on November 12, 1979. In para 4 of the ejectment application it was alleged that it is about a year back that the building was sublet by the tenant to his son Ishwar Dass. Thus, from the evidence on the record this allegation on the face of it is wrong. It appears that from the very beginning of the tenancy the bussiness carried therein in the name of Ishwar Dass but both father and the son were carrying on the said business together. There is no cogent evidence on the record to prove that the tenant Gobind Ram was no more in occupation of the demised premises. Even if he is residing at village Sekha and running business as well, it could not be contended that he was not in occupation of the demised premises because village Sekha is very near to the city of Barnala where the demised premises are situated In these circumstances authorities relied upon are not applicable to the facts of the present case. Moreover. it will be the question of fact in each case whether the subletting has been proved or not.

The learned Appellate Authority after discussing the entire evidence on record has given a firm finding that "Having proceeded in this manner I am constrained to hold that the respondents have failed to prove subletting by Gobind Ram appellant in favour of his co-appellant. The finding of the Rent Controller under that limb of issue No. 1 is set aside." It may be pertinent to note that on the part of the landlords, there was an effort to prove that the tenant was living at village Sikha and the summons were also served there on him at village Sikha. The original summons has been exhibited as Exhibit A-1. There the tenant has signed as "Gobind Ram Barnala" dated 26th November, 1979. It shows that Gobind Ram signed on the summons at Barnala though the adress given therein was of village Sekha. This also goes to prove that Gobind Ram tenant was in occupation of the demised premises at Barnala. However, as observed earlier village Sekha is very near to the city of Barnala and, therefore, even if it be assumed that the tenant Gobind Ram was livnig at village Sekha, there was nothing to show that he was not in occupation of the demised premises. If Gobind Ram was not in occupation of the demised premises as alleged by the landlord, there is no explanation as to why the application was not moved earlier because according to the evidence on the record Ishwar Dass son of the tenant was found to be the proprietor of the business carried therein from the very inception of the tenancy. It goes to prove that from the very beginning the business was in the name of Ishwar Dass but was being carried jointly by both father and the son.

Under these circumstances I do not find any illegality or impropriety in the firm finding of the Appellate Authority. Consequently, the petition fails and is dismissed with costs.