Piara Lal (Died) through L.Rs. vs Rajinder Kumar and Others

R.L. Anand, J.—This is a landlord''s revision and has been directed against the judgment dated 31.1.1983, passed by the Appellate Authority, Sangrur, who allowed the appeal of Shri Rajinder Kumar and set aside the order dated 19.9.1980 passed by the Rent Controller, who had ordered the eviction of Rajinder Kumar along with Karam Chand and Yash Pal.

The brief facts of the case can be summarised in the following manner. Shri Piara Lal son of Shir Kaur Sain claimed himself to be the landlord/owner of the demised premises. He filed an ejectment application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called ''the Act'') against Karam Chand, Yash Pal and Rajinder Kumar, alleging that he purchased the disputed shop vide sale deed dated 3.6.1957 for a consideration of Rs. 10,5000/-. After re-construction of the building he rented out the demised premises to Karam Chand and Yash Pal, respondent No. 1 and 2 respectively, at the annual rent of Rs. 1200/-. Respondent No. 1 and 2 both executed a rent note dated 10.11.1963 in his favour. Thus, there was relationship of landlord and tenant between him and respondents No. 1 and 2. The shop was tenanted only for a period of one year with the stipulation that they would vacate the premises after the expiry of the period mentioned in the rent note. The respondents did not vacate the premises after the expiry of the period of tenancy and continued in possession under the protection given to the tenants under the Act.

About 5/6 year back, the respondents No. 1 and 2 stopped working on the shop. The landlord made the enquiries from respondent No. 3 and he came to know that respondents No. 1 and 2 were continuing in the business as partners. The landlord also made enquiries from respondents No. 1 and 2 and they also replied to the same effect. The petitioner remained under the impression that respondents No. 1 and 2 were the partners in the business carried on in the demised premises.

About 4 years prior to the filing of the present ejectment application, the applicant learnt from a reliable source that respondents No. 1 and 2 were not the partners of the Firm and that, in fact, they had sublet the premises to respondent No. 3, Shri Rajinder Kumar. On further enquiry, respondent No. 3 also confirmed this fact. Thus, respondent No. 3, is in occupation of the demised premises as a sub-tenant and due to this reason, the respondents are liable to be ejected from the premises.

The landlord also averred that respondents No. 1 and 2 did not make the payment of the rent from 11.11.1973 to date and as such they are in arrears of rent. The house tax was levied by the Municipal Committee, Dhuri, which was also not paid by the respondents No. 1 and 2 and as such they are liable to be ejected on the ground of nonpayment of rent. The other ground, on which the ejectment of the respondents has been sought, was that the respondents have materially impaired the value and, utility of the tenanted premises by breaking the almirah fitted in the southern wall and they have also placed new almirah instead thereof.

Notice of the petition was given to the respondents S/Shri Karam Chand and Yash Pal, respondents No. 1 and 2 respectively, did not appear inspite of service and they were proceeded ex parte. The petition was contested by Shri Rajinder Kumar, respondent No. 3, who denied the allegations of the landlord. Respondent No. 3, however, admitted that the petitioner is the owner. The plea taken up by Shri Rajinder Kumar, was that he is a direct tenant under the petitioner-landlord on an yearly rent of Rs. 1,200/-. The answering respondent paid Rs. 1,200/- to the petitioner on 16.12.1966 by way of advance payment for the period 11.11.1996 to 10.11.1967. Also the rent was paid to the landlord from 11.11.1967 to 11.11.1968. In the meantime, Om Parkash separated from the business and answering respondent remained in possession of the shop. He then paid the rent to the landlord up to 10.11.1973. Thereafter, the landlord, refused to accept the rent from respondent No. 3 and for that reason he could not pay the rent. It is further alleged by respondent No. 3 that on the first date of hearing he tendered the rent along with interest and costs, which was not accepted by the landlord. Respondent No. 3 also refuted the allegations of the landlord that he had materially impaired the value and utility of the premises. Respondent No. 3 claimed a direct tenancy under the landlord and denied the other allegations.

From the above pleadings of the parties the learned Rent Controller, framed the following issues:-

Whether respondents No. 1 and 2 took the shop in dispute on rent from Piara Lal applicant on 10.11.1963?

Whether the premises in dispute have been sublet to respondent No. 3 by respondents No. 1 and 2?

Whether the respondent have materially impaired the value and the utility of the premises in dispute?

Relief.

The parties led oral as well as documentary evidence in support of their case and for the reasons contained in the order dated 19.9.1980, the learned Rent Controller, came to the conclusion that Shri Rajinder Kumar respondent is occupying the demised premises in the capacity of a sub-tenant. Resultantly, the ejectment order was passed against the respondents No. 1, 2 and 3.

Aggrieved by the order of the Rent Controller, respondent No. 3, Shri Rajinder Kumar, filed an appeal before the appellate authority, Sangrur, who for the reasons given in paras 12 onwards of his judgment, allowed the appeal and set aside the order of the Rent Controller and dismissed the petition under Section-13 of the Act and in this manner, the landlord has filed the present appeal.

I have heard Shri Hemant Sarin, Advocate, on behalf of the petitioner and Shri J.R. Mittal, Senior Advocate, on behalf of the respondents and with their assistance have gone through the record of the case.

The sole point for determination is whether S/Shri Karam Chand and Yash Pal, who at one time, had occupied the demised premises under the rent note dated 10.11.1963, had sublet the premises to Shri Rajinder Kumar, respondent, or that Shri Rajinder Kumar is occupying the demised premises in his individual capacity as a tenant?

The learned counsel appearing on behalf of the petitioner submitted that it is the common case of the parties that earlier, this property was under the tenancy of S/Shri Karam Chand and Yashpal under a rent note dated 10.11.1963. In these circumstances, in all probabilities, if the landlord wanted to create any tenancy in favour of Shri Rajinder Kumar, he would have compelled Shri Rajinder Kumar to execute the rent note in his favour. No rent note has been pleaded by Shri Rajinder Kumar and in these circumstances, a reasonable inference can always be drawn that Karam Chand and Yash Pal had parted the possession of the demised premises in favour of Shri Rajinder Kumar, who had occupied the premises in the capacity of a sub-tenant without the written consent of the landlord and once the legal possession of the premises has been delivered to Shri Rajinder Kumar, who admittedly, has the control over the premises, a reasonable inference of sub-tenancy can be drawn because it is always very difficult for the landlord to prove the sub-tenancy being a secret arrangement between the tenant and the sub-tenant. The learned counsel for the petitioner also submitted that the appellate authority has not rightly interpreted the documents Exs.R-1 to R-6 and that mere acceptance of some amount by way of rent by the landlord, will not create a relationship of landlord and tenant and even the Municipal record which has been relied upon by the appellate authority, does not create relationship of landlord and tenant. At the most it is a corroborative piece of evidence.

On the contrary, the learned counsel appearing on behalf of the respondents submitted that from the documentary evidence available on the record, it stands established that the landlord had treated the respondent as his tenant. The tenancy can be created in Punjab in two manners; either by a written document or by oral document with the delivery of possession. In this case the tenancy has been created by the second mode and the petitioner had been accepting the rent from respondent Rajinder Kumar, treating him as a tenant and there is consistent change in the conduct of the landlord which is conclusive of the fact that a valid relationship of landlord and tenant has been created between the petitioner and the respondent. In support of his contention the learned counsel for the respondents relied upon six receipts (which I will discuss in the subsequent portion of this judgment) and submitted that irresistible conclusion should be drawn that there was a relationship of landlord and tenant and that the landlord had been accepting the rent of the demised premises with conscious understanding that Rajinder Kumar and his one time partner Shri Om Parkash were in possession of the demised premises.

After considering the rival contention of the parties, I am deciding this petition mainly on the basis of documentary evidence because the landlord has admitted that receipts Exs.R-1 to R-6, which are in Landa character, have been signed by him, issued by him and he also admitted the contents thereof.

The first receipt on the record is Ex.R-1 which is dated 17.12.1966. The translation of this receipt can be done in the following manner:-

"Expenses to Shri Pyre Lal son of Kaur Sain for shop rent from 11.11.1966 to 10.11.1967 from Om Parkash Rajinder Pal."

The second receipt is Ex.R-2 and the translation of which is as follows:-

"Expenses shop rent to Shri Pyare Lal son of Kaur Sain for shop rent from 11.11.1967 to 10.11.1968 from Om Parkash Rajinder Pal".

It may be mentioned here that Om Parkash was partner of M/s Rajinder Pal. The third receipt is Ex.R.3. It runs as follows:-

"Expenses shop rent to Shri Pyare Lal son of Kaur Sain for shop rent from 11.11.1968 to 10.11.1969 from Rajinder Boot House, Dhuri."

Receipt Ex.R-4 is as follows:-

"Shop rent to Shri Pyare Lal son of Kaur Sain for shop rent from 11.11.1969 to 10.11.1970 from Rajinder Booth House Dhuri." Receipt Ex.R-5 is the indicative of the fact that a sum of Rs. 1,200/- by way of rent has been paid to Shri Piare Lal from 11.11.1970 to 10.11.1971 and this amount has been received from M/s Rajinder Pal Jindal and Sons (Rajinder Boot House, Dhuri). R-6 is yet another receipt which is indicative of the fact that the rent for 11.11.1971 to 10.11.1972 was received by the petitioner from Shri Rajinder Pal Jindal and Sons (Rajinder Booth House Dhuri). In this context, there is also a 7th receipt and this pertains to the period from 11.11.1972 to 10.11.1973 and the rent has been received by the landlord from Rajinder Pal Jindal and Sons (Rajinder Boot House).

Thus, the cumulative effect of these receipts speaks volume of the conduct of the landlord, wherein, he has described that he was receiving the rent of the shop which is in possession of Shri Rajinder Kumar Om Parkash or in which the business is being run by Shri Rajinder Pal Jindal and Sons in the name of Rajinder Booth House, Dhuri. It is not simply an acknowledgement of some amount but a conscious decision on the part of the landlord which is suggestive of the fact that he had acknowledged Shri Rajinder Kumar as a tenant with respect of the shop in question and in these circumstances, it is not open to the landlord to say that S/Shri Karam Chand and Yashpal had delivered the possession of the shop in question to Shri Rajinder Kumar in the capacity of a sub-tenant. I, thus, hold that Shri Rajinder Kumar, respondent, was a direct tenant under the petitioner. Earlier, he had been doing the business in partnership with Shri Om Parkash and subsequently, Om Parkash retired from the business which is now being carried on exclusively by Shri Rajinder Kumar. I further hold that Shri Rajinder Kumar was occupying the demised premises in his individual capacity as a tenant and not as a sub-tenant. Thus, I affirm the finding of the learned appellate Court and do not see any merit in this appeal, which is hereby dismissed with no order as to costs.