Nem Chand etc. vs Ved Parkash Chhabra etc.

V.K. Jhanji, J.—This is tenant''s revision directed against the judgments of the rent Controller and the appellate Authority whereby he has been ordered to be ejected from the premises in dispute.

Ejectment of the petitioner was sought from three bed-rooms, drawing-cum-dining, two verandahs, kitchen, latrine, bath-room and one room over the garage on the first floor of House No. 2132, Sector 21-C, Chandigarh. It was the case of the landlord, Brij Lal (now deceased) and being represented by legal representatives (respondents herein) that at the first instance, he had let out three bed-rooms, drawing cum dining, two verandahs, kitchen, latrine and bath-room on the first floor of House No. 2132, Sector 21-C, Chandigarh, at a rent of Rs. 575/- per month excluding water and electricity charges. He alleged that since he had to go to U.S.A., he handed over keys of the house to one Des Raj to look after the house in question. In his absence, tenant took possession of one room over the garage and one room On the ground floor and when landlord come to Chandigarh, he objected to it and requested the tenant to vacate these two rooms and the landlord was compelled under threat, coercion and pressure to sign a receipt for a rent of Rs. 825/- and then only the tenant vacated one room on the ground floor and in this way he became tenant at a rent of Rs. 825/- in respect of three bed-rooms, drawing cum dining, two verandahs, latrine, bathroom on the first floor and one room over the garage, landlord sought ejectment of the tenant from these premises on the ground that after the commencement of the Act, tenant has sub-let two rooms in the main house to his son, S.K. Jain and a room over the garage to M/s M.V. Sales. Ejectment was also sought on the ground that the room over the garage was let out for residential purpose, but the same is being used for non-residential purpose. Tenant, Nem Chand Jain and his son, S.K. Jain and M/s M.V. sales filed a joint written statement. In the written statement, they averred that tenancy in regard to the premises is not a composite one, but consists of two separate and distinct tenancies; one in respect of a set of accommodation comprising three bed-rooms, drawing-cum-dining, two verandahs, kitchen, latrine and bath-room and the other in respect of a room over the garage. This tenancy, according to the tenant, started on 1.1.1980 at a rent of Rs. 575/- per month which subsequently was enhanced to Rs. 625/- per month w.e.f. 1.2.1983. The other tenancy is in respect of a set of accommodation comprising one room over the garage with attached bath-room and latrine which was created w.e.f. 15.3.1982 at a rent of Rs. 200/- per month. On the basis of pleadings of the parties, the following issues were framed by the Rent Controller on 19.11.1983 :

Whether the respondent has made a valid tender on the first date of hearing? OPR.

Whether the respondent No. 1 has sublet the disputed premises to respondent No. 2 and 3 without any written consent of the petitioner? OPP.

Whether the respondent has changed the user of the premises for a purpose other than that for which it was let out ? OPP.

Relief.

and following additional issues on 16.2.1984 :

Whether there are different causes of action for distinct tenancies ? OPR.

Whether this petition is not maintainable ? OPR.

Relief.

On the basis of evidence brought on record, the Rent Controller ordered ejectment of the tenant on both counts, i.e. sub-letting and change of user of one room over the garage from residential to non-residential. Appellate Authority has affirmed the judgment of the Rent Controller in an appeal preferred by the petitioners herein. Hence, the present revision petition by the petitioners.

It has been contended by learned counsel for petitioners that the judgments of the Rent Controller and the Appellate Authority are not sustainable in law inasmuch as it has been found by the Rent Controller and also by the Appellate Authority that tenancy in regard to the premises is not a composite one, rather it consists of two tenancies-one in respect of premises on the first floor of House No. 2132, Sector 21-C, Chandigarh and the other in regard to a room over the garage which tenancy was created on 15.3.1982 at a rent of Rs. 200/- per month. Counsel contended that if the finding is accepted in regard to sub-letting of the room over the garage and change of user of that room from residential to non-residential, then the tenant is liable to be ejected only from that room and not for the other set of accommodation, tenancy of which is separate and distinct. He also contended that as regards the premises on the first floor, ejectment has been ordered on the ground that a part of it has been sub-let by Nem Chand Jain to his son, S.K. Jain. Counsel contended that the finding in this regard is erroneous and therefore, the judgments of the Authorities below are liable to be set aside. On the other hand, Mr. M.L. Sarin, Sr. Advocate, counsel for respondents, has contended that finding has been recorded by the Courts below that there are two separate and distinct tenancies, but he contend that finding in this regard is not correct. He also contended that finding in regard to sub-letting and change of user being a finding of fact is not to be interfered within revisional jurisdiction.

After hearing the counsel for the parties and on going through the records, I am of the view that revision petition deserves to succeed. It is common case of the parties that at the first instant three bed-rooms, drawing-cum-dining, two verandahs, kitchen, latrine and bath-room on the first floor of House No. 2132, sector 21-C, Chandigarh, were let out w.e.f. 1.1.1980 on a rent of Rs. 575/- per month. The room over the garage with attached bath-room and latrine was let out on 15.3.1982 at a rent of Rs. 200/- per month. Later, rent of the set of accommodation was raised from Rs. 575/- to Rs. 625/-, but rent of the room over the garage remained to be Rs. 200/- per month. Though the case set up by the landlord in the ejectment application was that the entire premises were let out at a rent of Rs. 825/- per month, but the Rent Controller and also the appellate Authority on the basis of evidence on record have found that there are two premises. As a matter of fact, landlord did not challenge the finding in this regard before the appellate Authority and for that matter, the appellate Authority in para 16 of the judgment observed that "it is proved on the record that two tenancies had been created by the landlord at different points of time and this finding has not been challenged on behalf of the landlord". In my view, the finding that there are two separate and distinct tenancies is not to be interfered with as various receipts, namely, Exhibits R-1, R-4, R-5, R-6, R-6/1, R-6/5, R-6/9, R-6/8, R-6/9 and R-7 which were executed by the landlord acknowleding rent of the two sets of accommodation, i.e. one for Rs. 625/- and another Rs. 200/- per month, go a long way to show that the tenancy was not a composite one as has been contended by counsel for respondents. In the ejectment application, ejectment was sought from the room over the garage on the ground that it has been sub-let by the tenant to M/s M.V. sales without the consent of landlord and also that respondent No. 3 is using the room over the garage for commercial purpose instead of residential purpose for which it was let out. Rent Controller and also the appellate Authority on the appreciation of evidence have found that M/s M.V. sales Corporation is in occupation of a room over the garage and is using it for non-residential purpose. The finding in this regard has not been challenged by the counsel for the petitioners. Otherwise too, I am of the view that finding in this respect is not to be interfered with as sufficient evidence has come on record to show that M/s M.V. sales is in occupation of room over the garage and it is running the business of machinery parts and electrical goods. The user qua these premises has been changed from residential to non-residential.

As regards the finding of the Authorities below that the tenant is liable to be ejected as part of other set of accommodation, i.e. three bed-rooms drawing-cum-dining, two verandahs, kitchen, latrine and bath-room has been sub-let by Nem Chand Jain, tenant, to his son, S.K. Jain, is not sustainable. In his ejectment application, landlord averred that tenant after the commencement of the Act has sub-let two rooms to his son without his written consent. In order to prove that his son though living in the same premises along with him, but is having a separate mess, tried to bring evidence to show that one room is being used as kitchen, but has failed to prove that one room of the premises is being used by his son as kitchen. The appellate Authority has recorded its finding in this regard in para 13 of the judgment. Counsel for the landlord fairly conceded that finding in this regard is correct. The other evidence to prove sub-letting, as pointed out by counsel for landlord, is that father and son are having separate ration-card. Counsel contended that once it is proved that father and son are having separate ration-card, inference would be that they are living separately. Counsel in support of this argument relied upon judgments of this Court in Harcharan Singh and Anr. v. Savitri Devi and Ors. (1996)98 P.L.R. 126 and Santosh Devi and Others Vs. Vir Chand, After giving a thoughtful consideration to the submission of counsel for the landlord. I am of the view that there is no merit in the same. In order to prove subletting landlord has not only to prove exclusive possession of the so-called sub-tenant but also has to prove that parting of possession is for a valuable consideration. Simply because the son is having a separate ration-card is not enough to hold that tenant has parted with possession, particularly when evidence of the landlord that son is having a separate mess has not been believed. The very fact that son is having common mess and is living in the same house shows that he is not separate from his father. In- this regard, reference may be made to judgment in Rajinder Parshad and Anr. v. Parveen Kumar 1992(2) R.C.R. 150. In that case too, ejectment of tenant was sought on the ground that the son had sub-let the premises to his father and on finding that son was living in the same house and having common mess, this Court held that the very fact that the son and father are living together negatives the concept and theory of sub-letting. To prove sub-letting, it is to be proved that an interest and right to remain in exclusive possession has vested in some other person other than the tenant. In Rajinder Parshad''s case (supra), reliance was placed on a judgment of the Supreme Court in Civil Appeal No. 33616 of 1990 wherein the Supreme Court has set aside the order of this Court in Civil Revision No. 2128 of 1988 (Kishan Chand and Anr. v. Gurjinder Singh Arora and Anr.). The Supreme Court had held as under :-

"Special leave granted.

In the judgment under appeal the High Court has considered only one question :

the question as to the validity of sub-letting of the premises by father to son, i.e. petitioner No. 1 to petitioner No. 2. The High Court has reached the conclusion that the son is doing a separate business and, therefore, there was sub-letting.

We have perused the material and heard counsel of both sides. We are satisfied that the High Court''s finding cannot be sustained. The fact that the son and the father are doing separate business is by itself no ground to hold that the father has sublet the premises to the son since father and son are residing together."

The judgments cited by Mr. M.L. Sarin, counsel for landlord, have no application to the facts of the present case. Harcharan Singh''s case (supra) was not a case of sub-letting by father to son. In that case, apart from ration-card there was also other evidence to prove sub-letting. Likewise, Santosh Devi''s case, (supra) was a case of brothers where from the evidence it was proved that they had been living separately in a separate house and were having separate ration-cards and thus, their plea of running the business jointly being Joint Hindu Family, was not believed. In the present case, apart from ration-card there is no evidence worth accepting that son is in exclusive possession of two rooms as has been alleged by the landlord in his ejectment petition. Accordingly, the finding of the Authorities below in this regard is not sustainable and is to be set aside.

Consequently, the revision petition is allowed. The order of the Authorities below is modified to the extent that ejectment application qua three bed-rooms, drawing-cum-dining, two verandahs, kitchen, latrine and bath-room shall stand dismissed, and ejectment order passed qua one room over the garage with attached bath-room and latrine, in respect of House No. 2132, Sector 21-C, Chandigarh, is maintained. Petitioners are allowed three month''s time to vacate the room over the garage provided they deposit the entire arrears of rent, including that of three months, within one month from today and also file an undertaking with the Rent Controller that they shall hand over the vacant possession of the room over the garage to the landlord on or before the expiry of period allowed by this Court.