Rajinder Parshad vs Smt. Sarla Devi and Another

N.K. Kapoor, J.—This is un-successful defendant''s regular second appeal.

Plaintiff filed a suit for possession against the defendants with averments that shop in dispute was given on rent at the rate of Rs. 250/- per month for a period of 11 months on 28.5.1981 to Defendant No. 1 who has sublet the same to defendant No. 2. With a view to seek the eviction of the tenant notice terminating the tenancy in terms of Section 106 of the Transfer of Property Act was given to defendant No. 1 on 16.7.1985 and so the tenancy of defendant No. 1 stands terminated. Plaintiff made further averment to the effect that the shop was constructed in the year 1978. So, the plaintiff sought possession of the property from the defendants.

Defendant No. 1 filed an admission written statement. Defendant No. 2 contested the suit stating that the plaintiff is not the owner of the disputed shop. According to defendant No. 2 land of the disputed shop was infact purchased by Naresh Kumar-defendant No. 1 who also raised construction thereupon and so any sale deed in favour of the plaintiff was benami. According to defendant No. 2 infact his landlord Naresh Kumar-defendant No. 1 is the real owner of the disputed shop. Other averments of the plaint were suitably controverted/denied.

On the pleadings of the parties, the following issues were framed:-

1) Whether the plaintiff is the owner of the shop in dispute as alleged in the plaint? OPP.

2) Whether the defendant No. 1 is a tenant of shop in dispute under the plaintiff as alleged ? Opp.

3) Whether defendant No. 1 has sub-let the shop in dispute to defendant No. 2 without the consent of the Plaintiff? OPP.

4) Whether the defendants are liable to be ejected on the grounds mentioned in para No. 3 of the plaint? OPP.

5) Whether the plaintiff has no locus-standi to file the present suit? OPP.

6) Whether the suit of the plaintiff is not maintainable in the present form? OPD.

7) Whether the suit is barred by limitation? OPP.

8) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPP.

9) Whether the suit is false and frivolous and defendants are entitled for special costs as referred u/s 35A of CPC? OPD.

Issue No. 1 was decided in favour of the plaintiff holding that the plaintiff is owner of the shop in dispute. Issues 2 and 3 were taken up together by the trial Court and it was held that shop in dispute was let out by the plaintiff to defendant No. 1 who in turn sub let the same to defendant No. 2 without the consent of the plaintiff. Since the Court came to the conclusion that defendant No. 2 was a sub-tenant of defendant No. 1 it was held that there was no need to serve notice upon defendant N.2 in terms of Section 106 of the Transfer of Property Act. Issue No. 4 was also decided in favour of the plaintiff. Issue No. 4 was also decided in favour of the plaintiff. Issue No. 5 was decided against the defendants. Issues 6,7 and 8 were taken up together and were decided against the defendants. Issue No. 9 was again decided against the defendants. Accordingly, the suit of the plaintiff was decreed as prayed for.

Before the lower appellate Court the defendant the appellant confined his submissions with regard to issues No. 2 to 4 only. The Court re-examined the matter on fact as well as on law and finally came to the conclusion that findings recorded by the trial Court were just and proper. The findings in respect of other issues too were affirmed by the lower appellate Court. Consequently, the appeal was ordered to be dismissed.

Challenging the concurrent findings of the Courts below, the learned counsel for the appellant has termed these to be merely based on surmises and conjectures and without any reliable evidence on record and hence vitiated. According to the counsel, both the Courts below have erred in law in not properly construing the purpose behind the execution of rent note by brother in favour of his sister who thereafter within a short period of 2 days let out the premises to the present appellant. These facts on record clearly demonstrate that rent note in favour of Naresh Kumar was infact a camouflage so that the appellant could be evicted on the ground of sub-tenancy. Elaborating the counsel argued that the first rent note in favour of Naresh Kumar is dated 28.5.1981 whereas the rent note executed by the present appellant in favour of Naresh Kumar is dated 30.5.1981. The non-judicial papers were infact purchased on the same date. This also lends credence to the plea set up by the defendant-appellant that the earlier rent note was merely created so as to evict the appellant on the ground of sub-tenancy at any future date. According to the counsel there is otherwise also ample evidence on record to prove that Naresh Kumar infact raised construction upon the vacant land and whose name also finds recorded in the municipal record. According to the counsel, infact Naresh Kumar was the owner/landlord of the premises in dispute and so the judgments of the Courts below are liable to be reversed.

A bare perusal of the judgments of the Courts below makes it abundantly clear that parties were at issues on a number of points. The trial Court took pains to frame as many as 10 issues relating to the ownership of the property, relationship of the plaintiff with defendants 1 and 2 and other issues relating to valid termination of the tenancy, maintainability of the suit, plea of limitation, locus standi etc. Both the Courts on the basis of evidence have returned a positive finding to the effect that the plaintiff is owner of the shop in dispute. This finding based on evidence and not vitiated in any manner does not call for any interference by this Court. It is also the case of the appellant that he had been inducted as a tenant by Naresh Kumar and so qua him he was his landlord. In other words there was no relationship of a landlord and tenant between plaintiff and defendant No. 2 the appellant. It is not the case of the defendant-appellant that he had been inducted as a tenant by the plaintiff. This being so, his possession can be considered only vis-a-vis Naresh Kumar-defendant No. 1. Rent note executed by Naresh Kumar in favour of the plaintiff has also been proved according to law. Vide this rent note the shop in dispute was let out to Naresh Kumar for a period of 11 months who in turn let out it to the defendant - the appellant on somewhat higher rate of rent. In the presence of the first rent note executed by Naresh Kumar in favour of the plaintiff the second rent note executed by defendant in favour of Naresh Kumar will necessarily make him a sub-tenant qua the plaintiff. It is not the case of the appellant that Naresh Kumar let out the premises to him for and on behalf of the appellant. Rather his stand is that plaintiff is not the owner of the property in dispute. There is also not much substance in the plea of the appellant that since there is no proof on record that Naresh Kumar occupied the shop before he sublet to the defendant-appellant it should be taken that the defendant-appellant was a direct tenant for the simple reason that defendant No. 2 does not claim himself to be tenant of the plaintiff.

Matter can be examined from another angle also i.e. admittedly the shop in dispute was constructed in the year 1978 and so was exempt from the provisions of The Haryana Urban (Control of Rent) & Eviction Act, 1973 for the period of 10 years. So, the plaintiff could legitimately seek eviction of the tenant within the prescribed period of 10 years. Had the plaintiff infact inducted the defendant-appellant as a direct tenant even then such a tenant could be evicted by her as the suit was filed on 26.8.1987. Consequently, finding no merit in the appeal the same is dismissed.

Appellant is, however, granted two months''s time to deliver back the vacant possession of the shop in dispute.