Mohammad Jamil Khan vs V Addl.District Judge, Unnao and Others

Rakesh Sharma, J.

Heard Sri RajatKantSharma, learned counsel for the petitioner and Sri Ravi Nath Tilhari, learned counsel for the opposite parties No.3 and 4.

In the present writ petition, the petitioner has assailed the order dated 11.8.1980 passed by the Munsif North, Unnao and the order dated 3.11.1980 passed by the V Additional District Judge, Unnao, dismissing the revision filed by the petitioner who was the landlord of the disputed premises, a shop, situate at Qasba Safipur district Unnao.

The petitioner, late Sri Mohd. Jamil Khan, now represented through his legal heirs, was the landlord of the above said disputed shop. A tenancy for a shop was settled between the petitioner and opposite party No.3 Sri Chhotey Lal through a sarkhat/agreement executed on 15.10.1963 at the rate of Rs.30/ per month as rent. Learned counsel for the petitioner has submitted that the opposite party No.3, Sri Chhotey Lal had opened this separate shop and had sublet the disputed shop to one Sri Munakki Lal, now represented through his legal heirs after his death during the pendency of this case i.e. on 12.8.1992.

The petitioner sought ejectment of the tenant i.e. Sri Chhotey Lal as the shop was sublet by him to Sri Munakki Lal. The petitioner served a notice of ejectment, terminating the tenancy of opposite party Nb.3''Srj Chhotey Lal. A regular suit No.6 of 1977, Mohd. Jamil Khan v. Chjjotey Lal, was filed in the lower Court seeking ejectment of tenant and for arrears of rent. The subletting of shop by the tenant was the foundation of the suit filed before the Munsif North, Unnao.

The suit was contested by the tenant by filing his written statement. It was pleaded before the learned lower Court that Sri Chhotey Lal and Munakki Lal were the real brothers and had jointly taken the shop on rent at the rate of Rs.30/ per month. According to opposite parties, both the brothers Chhotey Lal and Munakki Lal were the joint tenants. The rent was never enhanced and the alternative plea was also taken by the tenant that if it is held that opposite party No.4 Sri Munakki Lal (now represented through his legal heirs) had not taken the shop on rent along with the opposite party No.3 Chhotey Lal, he is using it since 1963 with the consent of landlord and this fact was also in the knowledge of the landlord and Sri Munakki Lal had claimed himself to be the tenant in view of the Section 14 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act 1972.

The following issues were framed by the learned trial Court;"

Whether the defendant No.1 Chhotey Lal alone had taken the shop in suit on rent or the defendants had taken it jointly?

Whether the defendant No.1 executed any rent note as alleged and it is legal?

Whether the defendant No.2 is in possession over the shop in suit since 1963 and had become its tenant by the implied consent of the plaintiff and as such he is entitled to benefit of the provisions of Section 14 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act 1972?

The petitioner adduced oral as well as documentary evidence before the lower Court and filed original copy of Iqrarnama, several receipts, copy of notice, postal receipts of registry and copy of saledeed. The said receipts and Sahukari receipts were filed demonstrating about separate Sahukari business of Chhotey Lal and Manakki Lal. The tenants had also adduced oral and documentary evidence in support of his defence. The trial Court has held that opposite parties No.3 and 4 namely, Chhotey Lal and Manakki Lal were joint tenants of the disputed shop. Sri Manakki Lal was treated to be a joint tenant, not a sub tenant and as such the lower Court has held that he could not have been evicted. The plea of enhanced rent i.e. Rs.40/ in place of Rs.30/ was not accepted by the trial Court. The trial Court had disbelieved the evidence of the petitioner, landlord including rent note/Sharkhat. The trial Court has based its findings on the grounds that Sri Manakki Lai, opposite party No.4 was in possession of the disputed shop, hence, he was to be given benefit of Section 1.4 of the UP. Act No.13 of 1972. The landlord, petitioner, preferred a revision under Section 25 of the Small Causes Courts Act before the learned District Judge, Unnao. This revision was dismissed by the learned District Judge, Unnao vide order dated 3.11.1980 which is impugned in the writ petition. The learned District Judge, Unnao held that opposite parties No.3 and 4 are the joint tenants of the disputed shop. The burden of proof was shifted on the petitioner, landlord the Sri Manakki Lal was the sole tenant. The benefit of Section 14 of the U P. Act No.13 of 1972 was given to Sri Manakki Lal, opposite party No.4, treating him as a joint tenant of the shop in dispute. Learned counsel for the petitioner submits that the benefit of Section 14 of the UP. .Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 cannot be given to a person in whose favour the original premises was sublet by the tenant. The person in occupation must prove that he was in occupation with the consent of the landlord and the date of occupation and other details must be given to prove the occupation or joint tenancy. In the circumstances of the case, Sri Manakki Lal was not the joint tenant or the admitted tenant. In support of his contention, he has cited the following cases:

Usman Gani Khan v. Rent Control and Eviction Officer, Allahabad and 1999 (2) Allahabad Rent Cases, 192.

Ashok Kumar v. IVth Additional District Judge, Allahabad and others, 1999(2) Allahabad Rent Cases, 200.

Ratan Lal v. Addl. District Judge, Bulandshahr and others, 1979 Allahabad Rent Cases 251.

Sri Puran Chandra Sharma v. Additional District Judge, Kanpur and others, 1981 Allahabad Rent Cases 257.

Kishori and another v. The District Judge, Banda and others. 1981 Allahabad Rent Cases 194.

Ram Singh v. The V Addl. District Judge, Meerut and others, 1981 Allahabad Rent Cases 197.

Jaspal Singh v. Additional District Judge, Bulandshahr. 1985(1) Allahabad Rent Cases 1.

Smt. Yasmin Mahmud v. Addl. District Judge. Special. Lucknow and others. 1985 (1) Allahabad Rent Cases 6.

S.N. Seth v. Smt. Prakashwati and others, 1999(1) Allahabad Rent Cases 430.

Vineet Kumar v. NeelHansGarg, 1999(1) Allahabad Rent Cases 438.

Smt. Savitri Devi v. llnd Additional District Judge, Deoria and others, 1997 (2) Allahabad Rent Cases 418.

Learned counsel for the opposite parties No.3 and 4 has argued that the opposite parties 3 and 4''i.e. Chhotey Lal and Manakki Lal are the real brothers and their families have been living as a joint family. The shop in dispute was taken by the opposite parties jointly on monthly rent of Rs.30/. Sri Chhotey Lal was the ''Karta'' of the family and the shop in dispute has been in occupation of both the brothers and they were joint tenants of the disputed shop. Both the Courts below after considering the material on record have concurrently held that the Sharkhat or Memorandum of Tenancy or agreement executed on 15.10.1963 was unreliable and had no right in favour of the landlord to evict the tenant. The shop was never sublet by the opposite party No.3 Chhotey Lal to opposite party No.4 Manakki Lal and were joint tenants of the shop in dispute. The learned lower courts below had rightly appreciated the entire oral and documentary evidence filed by the opposite parties and had rightly come to the conplusion that the Munakki Lal was not allowed to enter as sub tenant in the shop in question but being a real brother of the tenant, he was rightly treated as a joint tenant. The landlord failed to prove the execution of "allotted rent note. Sri Munakki Lal was entitled to get benefit of Section 14 of the Act No.13 of 1972.

Sri R.N. Tilhari, learned counselfor the opposite parties submits that the opposite parties No.3 and 4 were joint tenants and due to occupancy in the shop with the consent of the landlord Sri Munakki Lal, opposite party No.4 has become joint tenant. The concurrent findings of facts recorded by both the Courts below do not call for any interference by this Court under Article 226 of the Constitution of India. In support of his contention he has cited the following judgments:

Muni Lal v. Prescribed Authority. AIR 1978 SC 29 (para V)

Harbans Lal v. Jagmohan Saran. AIR 1986 SC 302.

Mohd. Shahnawaz Akhtar v. 1st ADJ. (2002) 9 SCC 375.

Banshi Dhar v. Additional District Judge, Lucknow and others. 2004 91) Allahabad Rent Cases 85.

Ranjeet Singh v, Ravi Prakash, 2004 (1) ARC 613 (SC).

In respect of providing the papers and relying on the same as evidence, Sri R.N. Tilhari has relied upon the judgments reported in the case of Bharat Singh v. Bhagirathi, AIR 1966 SC 405 and Hanumant v. State of M.P.. AIR 1952 SC 343 in which it has been held in these cases that the admission must be specific and has to be read as a whole or not at all. The defective pleading of the parties cannot give them a legal right.

In respect of benefit of Section 14 of the Act No.13 of 1972 and the consent of the landlord, the following cases have been cited:

Rajendra NathTiwari v. lllrd Addl. District Judge, Allahabad, 1981 ARC 271.

Smt. Kachar Bai.v. District Judge MathUra, 1980 ARC 452.

Ram Chandra Gupta v. IV Additional District Judge, Allahabad, 1979 ARC 222.

Ravindra Morian Swaroop v. R.C. & E.O/City Magistrate Bulandshahr, 2002 (1)ARC 86.

Cheter Sen Jain V. ADJ. (1992) 3 SCC 760.

According to the opposite parties, the decisions reported in 1997(2) ARC 41 8, Smt. Savitri Devi v. llnd ADJ and 1 999(1) ARC 430; S.N.Seth v. Smt. Prakashwati are not applicable in the present set of circumstances.

I have heard the arguments of the learned counsel for the parties and gone through the record.

The petitioner''s ownership of the shop and being the landlord was accepted by the tenant, Sri Chhotey Lal. The rent note executed on 15.10.1963, some of the rent receipts produced by the landlord on 7.6.1977, 24.6.1977 and 1.8.1977 reveal that the shop was rented out to Dookandar, Sri Manakki Lal has not been shown as subtenant. In the rent receipts, Sri Chhotey Lal has been indicated as Dookandar/Kiraydar. The rent was deposited by the tenant through Sri Manakki Lal. The word "Marfat" itself shows that Sri Chhotey Lal had sent the rent to be deposited with landlord through Sri Manakki Lal who had acted as bearer/messenger. The recitals in the Veceipts, notes are quoted below:

The Sahukari receipts dated 24.4.1978, 25.6.1977 also demonstrate that Sri Chhotey Lal ande Manakki Lal were having separate Sahukari (Money lending) business. The registration numbers of Sri Chhotey Lal and Sri Manakki Lal were 29 and 38 respectively as per, the receipts issued under the UP. Sahukari Viniyaman Niyamawali, 1976. SjiChhoteylLaland Sri Manakki Lal have not shown that they are doing joint business''. It was Pleaded in the petition that both of them were having their separate ration cards the tenant, opposite parties No.2 and 4 had failed to prove before the lower Court that they were joint tenants even if the Memorandum of Tenancy is excluded from consideration the other documents and unrebutted pleadings of the parties lead to the fact that there is nothing on record prove that the shop in dispute was ever let out jointly. The occupation, of Sri Manakki Lal in shop was with the consent of the landlord. It was the burden the tenant to prove that the joint tenancy or admitted tenancy was ever created in favour of Sri Manakki Lal.

Learned trial Court and the learned revisional Court had fallen into error in holding that the opposite parties No.3 and 4. were joint tenants. The oral evidence etc. clearly proves that Chhotey Lal was the tenant and Sri Manakki Lal was never let out or allowed to enter into the premises as a sub tenant or as a joint tenant. The Courts below have wrongly shifted the burden of proof on the landlord that Manakki Lal was the sub tenant. The rent receipts were issued in favour of Chhotey Lal. The appellate Court ought to have considered the entice documentary evidence'' including rent receipts, Sahukari Receipts while forming its opinion. Sri Manakki Lal ought not to have been given the benefitof Section 14 of the UP. Act No.13 of 1972. The learned trial Court has failed to appreciate the rent receipts which made it clear that Sri Chhotey Lal tenant had paid rent through Sri Manakki Lal and Sri Manakki Lal has nowhere been shown as subtenant. It is commorrpractice that Muneems, clerks, agents, assistants and representatives of businessmen go to the Banks and other Government office deposit the money on behalf of their employers. The findings of the trial Court appear to be erroneous on the point that Sri Manakki Lal by sitting on the shop shall become a tenant. Several salesmen, representatives etc. sit on the shop or showrooms these days and by this Act, they cannot claim themselves to be the legal and valid tenants of a showroom or the shop. The documentary evidences certainly were in favour of landlord which were ignored and oral evidence has been preferred in arriving at the conclusion by the Munsif North, Unnao. Section 14 of the Act No.13 of 1972 has been misinterpreted and has been wrongly applied in the circumstances of the case. The findings of both the Courts have been based on presumptions. The rent note dated 15.10.1963 had a probative value. It was a material document and if read with rent receipts, it clearly demonstrates that Sri Manakki Lal was a stranger and not a joint tenant. The tenancy was with Sri Chhotey Lal only. The petitioner has filed a document as Annexure 12 alongwith rejoinder affidavit to demonstrate that the rent note/sharkhat was written by Sri Chhotey Lai, the sole tenant, in favour of the petitioner landlord. Sri Chhotey Lal and Sri Manakki Lal were having ration cards, purchased agricultural land separately. Thus, the judgments rendered by both the Courts below are based on presumption only. There was no evidence to prove that Chhotey Lal and Manakki Lal were living in a joint family and were joint tenants of the shop or having executed any document with landlord jointly. The agreement of consent of the landlord approving occupation of Sri Manakki Lal is missing in this case. His occupation or possession does not stand regularized in the light of the principle laid down by this Court in the judgments cited by Sri R.K. Sharma in support of his case. The concept of the joint Hindu family is alien to the Rent Control Act. As per decision reported in the case of S.N. Seth v. Smt. Prakashwati, 1999(1) ARC 430 and Smt. Savitri Devi v. IInd Additional District Judge, Deoria and others, 1997 (2) ARC 418.

In view of above discussion, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 18.1990 passed by Munsif North, Unnao and the order dated 3.11.1980 passed by vth Aditional District Judge, Unnao. The opposite parties No.3 and 4 have beeh enjoying the occupation of the shop for the last 41 years on a meager amount of Rs.30/ or Rs.40/ per month. The tenant, Chhotey Lal has been found to have sublet the shop in dispute to Sri Manakki Lal (now his legalheirs). The oppocite parties No. 3 Chhotey Lal and opposite party No.4 Sri Manakki Lal are liable to be evicted from the shop. The tenants shall hand over the peaceful possessing of the landlord, the shop of the petitioner, within three months from today.

(Petition allowed)