Pirthi Raj vs Sardara

Prem Chand Pandit, J.—This is a landlord''s revision petition against the decision of the Appellate Authority reversing on appeal the order of the Rent Controller evicting the respondent from the premises in question.

Pirthi Raj landlord filed an application against Sardara, tenant, u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, for the latter''s eviction from a goodown and a Kotha in property No. MCK 342/10, situate in Kaithal, District Karnal. The ejectment was claimed on three grounds viz. (1) non-payment of rent; (2) the tenant had, without the consent of the landlord, transferred his rights under the lease and sublet a portion of the property to Begu and (3) that the tenant had without the written consent of the landlord constructed a Kacha Kotha on the vacant land belonging to the latter, which had not been even on rent to the former. The tenant parked his cart and tied his is oxen and buffaloes on the vacant land not included in the lease. He put dung cakes on the walls of the landlord''s property and his action and Conduct was such, which amounted to nuisance to other neighbours.

This petition was contested by the tenant who denied the allegations made by the landlord. As regards ground No. 3, it was stated by him that he bad made no construction whatsoever as alleged by the landlord, and that the Kacha Kotha and other constructions, along with the vacant site, were taken on rent by him. He himself had not made any construction. Ever if it was proved that the vacant site was not given on lease, the Rent Controller had no jurisdiction to entertain the ejectment application on the ground, as there was no relationship of landlord and tenant regarding the said site "although the vacant site along with the Kotha was under the tenancy of respondent (tenant)".

Since the tenant paid the arrears of rent on the first date of hearing and the same were accepted by the landlord, this ground of ejectment no longer remained available to the latter. As regards the second ground, the Rent controller came to the conclusion that the tenant was liable to ejectment, as he had transferred a portion of the tenanted premises to Begu without the permission of the landlord Regarding the third ground, the finding was that the tenant was liable to ejectment, as he was using a portion of the non-rented premises, which amounted to nuisance. As a result of these findings, the ejectment application was granted.

When the matter came in appeal before the learned Appellate Authority, he reversed both these findings, accepted the appeal and dismissed the ejectment application. The landlord has come here in revision.

After hearing the counsel for the parties, I find that there is no merit in this revision petition. As regards the ground of subletting, it has been found as a fact by the learned Appellate Authority that the landlord has failed to prove that the tenant sublet a part of the premises to Begu, the alleged sub-tenant. In order to prove this ground, the landlord, apart from himself going into the witness box had produced one witness. Tamely, Gomta, A.W.I., according to whom Begu was in possession of one Kotha in dispute and the tenant was in possession of the remaining property. In cress examination, this witness denied the case of the tenant that was put to him, namely, that the demised premises were in possession of the tenant along with his parents and brothers etc. So far as the landlord is concerned he deposed as A.W. 2, that the godown indispute was in possession of the tenant and the remaining property was with Been He also said that the possession of the site had been given to Begu without his consent.

As against this, the tenant produced two witnesses, namely, Hari Ram and Bhagwana, R.Ws. Nos. 1 and 2. The former stated that the tenant had not sublet the suit property. Begu, according to him, was the maternal uncle of the tenant and he visited the latter off and on, Begu was married and was resident of village Dhamtah. Bhagwana deposed that the demised premises were in the possession of the tenant himself and nobody was inducted as a sub-tenant He also stated in cross-examination that Begu visited the respondent every now and then and resided with the tenant whenever he came to the village. The tenant as R.W. 3 also stated that Begu was "not an agriculturist with him at Kaithal "

On this evidence, the Appellate Authority had rightly held that subletting was not established. In order to prove subletting it had to be shown that the tenant had handed over exclusive possession and control of the tenanted premises to the sub-tenant. This has not been done in the instant case. It was said that neither the landlord nor his witness Gomta was cross-examined by the tenant about the nature of the occupation of the Kotha by Begu, as deposed by them. In the first place, there was no necessity of cross-examining them, because none of them had stated in their evidence that Sardara tenant, had sublet any portion of the premises to Begu. Secondly as rightly pointed out by the Appellate Authority, the onus was on the landlord to prove subletting. He had failed to discharge the said burden, because the oral statements made by Gomta and the landlord that Begu was in occupation of the property in question, could not establish subletting. It cannot be forgotten that Begu was the maternal uncle of the respondent and if off and on when he came to the village he lived with the latter that could not mean that a part of the property had been sublet to him.

As regards the other ground of nuisance, in order to succeed, the landlord had to show that the tenant had been guilty of such acts and conduct as were a nuisance the occupiers of the building in the neighborhood. The evidence led by the landlord on this point at the most showed that the tenant parked his cart and tethered his cattle in the courtyerd opposite the tenanted premises and also that he cooked his meals outside the properly that had been let out to him. According to Gomta, the neighbours of the tenant were Bhagwana, Surju and Lachhman. This Bnagwana was produced by the tenant as R.W. 2. He categorically stated that the acts complained of did not cause him any nuisance. So far as Gomta is concerned, he has not even men-tiered the word ''nuisance'' in his evidence. As regard the landlord, be has admitted that he lived at Ambala and came to Kaithal after every fortnight. In his evidence all that he had stated was that the tenant had obstructed the passage leading to his house by tethering buffaloes and parking his cart, which caused inconvenience to Gomta, his tenant in the said building. Gomta on the other hand, in his cross-examination, had deposed that he was the tenant of Bhagwana, a collateral of the landlord.

It was urged by the learned counsel for the petitioner that the tenant had built a Kotha on the property, which was not rented out to him. Though in the grounds of ejectment it was stated that the tenant had constructed a Kacha Kotha on the vacant land belonging to the landlord, which bad not been given on rent to the former, it has not been proved on the record that the land, on which the Kotha was alleged to have been constructed, really belonged to the landlord. Even assuming for the sake of argument that the Kotha had been built on the vacant land owned by the landlord and which had not been given on rent to the tenant, it cannot be held that this act on the part of the tenant would amount to nuisance within the meaning of section 13(2) (iv), because there it had to be shown that the acts and conduct of the tenant were a nuisance to the occupiers of the buildings in the neighborhood. This conduct on the part of the tenant may be a nuisance to the landlord himself, but that, under the law is not enough. The neighbors must come forward and complain of the particular act and conduct of the tenant, which was a nuisance to there. That had not been done in the instant case. It is needless to mention that encroaching the land of a landlord may give rise to some other action as held by Falshaw C.J. in Inder Singh v. Kalu Rom Harijan and others 1964 Cur. L.J. 56 of 1966 but it could not amount to nuisance within the meaning of this expression in section 13(2) (iv) of the Rent Act. This ruling of Khosla C.J. in Hariana Ex-Servicemen M.T. Goods Carriers (sic) Society Ltd., Rohtak v. Fateh Chard and others Cr. R. No. 5740 of 1960 decided on 13th July 1961, cannot be of any assistance to the landlord, because there a number of persons had appeared on behalf of the landlord and had deposed that there was considerable interference wish the religious meetings as a result of the tenant''s using a portion of the non-rented premises learned counsel for the petitioner relied on the sentence-- "This, however is not a good defence, because on their own admission, the tenants had been using a portion of the non rented premises and this alone would amount to a nuisance, more particularly when religious temple is situated near the place where loading and unloading is done"--occurring in the judgment of Khosla C.J. But this sentence cannot be read in isolation. It was preceded by the following :

A number of persons had appeared on behalf of the applicants (landlords) and deposed that there was considerable interference with the religious meetings by the trucks, which were brought near the Chabutra for loading and unloading purposes. The only defence to this appears to have been that the tenants had from the very beginning used the ground near the Chabutra for their trucks.

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All this shows that in C.R. 574/1960 a number of neighbours had come forward to depose about the action and conduct of the tenants pertaining to the non-rented premise?, which had caused nuisance to them. Consequently this ground also had been rightly held by the Appellate Authority not to have been proved in the instant case.

The result is that this petition fails and is dismissed, but with no order as to costs.