Rajinder Kumar vs Bhagwanti and Another

V.K. Jhanji, J.—This is tenant''s revision petition directed against the order of the appellate Authority vide which tenant was ordered to be ejected.

In brief, the facts are that one Kapoori Mal, resident of Sangrur, was owner of the shop in dispute. His widow, Bhagwanti, (respondent No. 1 herein) alleging herself to be the owner of the shop, sought ejectment of the tenant on the ground that the shop had been let out to Nauhar Chand and on his death, his sons namely Hem Raj and Budh Ram (respondents No. 2 and 3 herein) have become her tenants and they have sublet the shop to Rajinder Kumar (Petitioner herein) without her written consent. The sons of Nauhar Chand, in the written statement, admitted the claim of the landlady. It may also be mentioned at this stage that the written statement was signed only by the counsel. Petitioner alone contested the ejectment petition on the ground that Kapoori Mal was owner of the shop. One of his sons, Manohar Lal, represented himself as Nauhar Chand and leased out the shop vide rent-note dated 16-11-1968. Petitioner in his written statement stated that Nauhar Chand or his sons never came into possession of the shop. He further stated that Manohar Lal has played a traud by representing himself as Nauhar Chand. The Rent Controller, on consideration of evidence brought on record, found that neither Nauhar Chand nor his sons ever came into possession. Petitioner alone was found to be in possession right from inception of the tenancy. As a result of this finding, ejectment petition on the ground of subletting was dismissed. On appeal by the landlady, order of the Rent Controller was set aside and petitioner was ordered to be ejected. Tenant (Petitioner herein) has now come in revision impugning order of the appellate Authority.

Mr. R.K. Battas, Advocate, counsel for the petitioner, contended that the tenant can be ejected on the ground of sub-letting only if the landlord proves on record that the tenant has parted with possession. According to him, in the present case, Nauhar Chand or his sons never came into possession of the shop and so, there is no question of sub-letting of the shop by them to the petitioner. In reply to this, Mr. M.L. Sarin, Sr. Advocate, counsel for the respondents, contended that petitioner in his written statement has admitted that he took the premises from Nauhar Chand who is none-else but the tenant and, therefore, the appellate Authority rightly ordered ejectment of the tenant.

On perusing the record and hearing the learned counsel for the parties, I am of the view that order of the appellate Authority cannot be sustained and the revision petition deserves to succeed. Petitioner was ordered to be ejected by the appellate Authority primarily on the ground that once the petitioner admitted that he took the shop on rent from Nauhar Chand, the averments of the landlady that she let out the shop to Nauhar Chand, and Nauhar Chand executed rent-note dated 14-11-1968 in her favour at the rate of Rs. 60/- per month will have to be taken as correct. This approach of the appellate Authority cannot be accepted for the reason that the landlady in order to succeed firstly had to establish that Nauhar Chand or his sons were ever put into possession of the shop as tenants, and further, the shop was let out by them to the petitioner. On the facts borne on record, landlady has failed to prove both. According to the landlady, the shop was let out to the petitioner on 16.11.1968 . Rent-note has been brought on record as Exh. A-4. In order to show that Nauhar Chand was a tenant Exhibit A-3 has been brought on record, i.e. entry dated 14-11-1968 in the Bahi alleged to have been executed by Nauhar Chand in her favour. As per this entry, the shop was taken Nauhar Chand from the landlady on 14-11-1968. From these two documents, the landlady wanted to prove that Nauhar Chand came into possession of the shop on 14-11-1968 and after carrying on the business in the shop for two days he sublet the shop to the petitioner on 16-11-1968. On the face of it, this cannot be accepted because there is no evidence on record to show that Nauhar Chand ever came into possession. I fail to understand as to why Nauhar Chand would taken the shop on 14.11.1968 at the rate of Rs. 60/- per month and after two days, i.e. on 16-11-1968, he would sub-let the same to the petitioner at the rate of Rs. 100/- per month. To my mind, this was a device coined by the landlady to eject the tenant on the ground of sub-letting. From the pleadings as well as from reading of evidence, it appears that Manohar Lal, who is one of the sons of the landlady, got a rent-note executed form the petitioner in favour of Nauhar Chand, and started accepting rent from the petitioner, purporting to be on behalf of Nauhar Chand. At times, he issued receipts on behalf of Nauhar Chand. One such receipt brought on record as Exh.R-3 in the hand of Manohar Lal but in the name of Nauhar Chand. One or two ejectment petitions were also got filed from Nauhar Chand against the petitioner on the ground of non-payment of rent, but when the rent was tendered, the same were got dismissed as withdrawn. Further, as per the case of landlady herself, petitioner is carrying on the business in the shop since 1968. Nauhar Chand is stated to have died somewhere in the year 1980. Landlady in her petition or her attorney, Kailash Chand, in his statement, have not explained as to why the landlady kept silent for so many years, i.e. till 1987 when petition was filed, if Nauhar Chand had been a tenant in the premises and sublet the same to the petitioner. The circumstances, that Nauhar Chand or his sons never came into possession, that petition was filed only in the year 1987, i.e. almost after 19 years from the date the petitioner came into possession; that Manohar Lal, who is non-else but the son of the landlady, had been receiving rent, executing receipts, purporting to be on behalf of Nauhar Chand, leave no manner of doubt that the rent-note executed by the petitioner was noting but a Sham and paper transaction. At no stage, the shop was let out to Nauhar Chand or his sons. Petitioner who has remained in possession right from inception of the tenancy, cannot be ejected on the ground of sub-letting as his status is not of a sub-tenant, but of a tenant.

As a result thereof, order of the appellate Authority cannot be sustained and the same is, therefore, set aside. Consequently, revision petition stands allowed with costs which are quantified at Rs. 1000/-.