Ram Kishan and Another vs Ganesh Dutt Jindal and Another

V.K. Jhanji, J.—This is landlord''s revision directed against the order of the appellate Authority whereby the appeal of the tenant was allowed and the order of the Rent Controller was set aside and as a consequence there of, the ejectment petition filed by the petitioner was dismissed Petitioner, Ram Kishan, and his wife, Kuldeep Kaur, are the owners of the house in dispute. As per the case of the petitioner, the ground floor of House No. 138, Sector 16-A, Chandigarh, was let out by Ram Kishan, petitioner, to respondent No. 1, Ganesh Dutt Jindal. on a rent of Rs 300/- per month. In the ejectment petition, it was claimed that respondent No. 1, Ganesh Dutt Jindal, sub-let the premises to respondent No. 2 namely Narinder Nath, without the written consent of the petitioners. It was also stated that respondent No. 1 transferred his right in the half portion of the building, consisting of two rooms, store, bathroom and the Lavatory adjoining House No 139, without the written consent of the petitioners and left vacant the other half portion on 31.5.1979, without informing the petitioners. The petitioners came to know about this only on 6.6.1979, when Ram Kishan came to collect the rent. Petitioner No. 1 took possession of the abondoned vacant portion, whereas respondent No. 2 refused to vacate the premises, and therefore, petition for ejectment was filed on 13.6.1979.

The respondents filed separate written statements. Respondent No. 1 in his statement submitted that he was a tenant under the petitioners. He also stated that respondent No. 2 was closely related to him therefore, he allowed respondent No. 2 to stay with him on payment of proportionate rent. He also stated that he vacated the portion in his possession with the due permission of the petitioners and respondent No. 2 remained in possession of the other portion. Respondent No. 2 in his written statement admitted that respondent No. 1 is closely related to him, but he and respondent No. 1 are co-tenants and the rent was being paid jointly at the rate of Rs. 300/- per month, i.e. Rs. 150/- by each of the respondents. He therefore, denied that respondent No 1 transferred his tenancy rights to him.

The Rent Controller on the appreciation of evidence on record, ordered the ejectment of the respondents on the ground of subletting. On an appeal filed by respondent No. 2, order of the Rent Controller was set aside by the appellate Authority, and as a consequence thereof ejectment petition filed by the petitioner was dismissed This order is now being impugned by the petitioners in the present revision petition.

Mr. H. L. Sarin, Senior Advocate, learned counsel for the petitioners contended that the appellate Authority set aside the order of the Rent Controller only of surmises and conjectures, and therefore, the order of the appellate Authority is liable to be set aside. On the other hand, Mr. S. K. Aggarwal, Advocate, learned counsel for the respondent submitted that respondent No. 2 is in possession of the premises in dispute since 19/4, and the possession of respondent No. 2 was to the knowledge of the petitioners He also submitted that respondent No. 2 is a tenant in his own right and thus, there is no question of sub-letting of premises by respondent No. 1 to respondent No. 2.

In order to appreciate the respective contentions of learned counsel for the parties, I have gone through the entire evidence on record, including the statement of witnesses with the help of learned counsel for the parties. The only question which is to be determined in this case is whether respondent No. 2 is a tenant in his own right, or the premises were let out to respondent No. 1 who sub-let the same to respondent No. 2. It is not disputed before me that both the respondents are closely related to each other. The tenancy was created on 1 6.1973 whereas respondent No 2 came in possession of a portion of the premises some-where in the year 1974 and therefore, it is clear that on the day when the premises were let out, respondent No. 2 was not in possession of the premises. Respondent No. 1 in his written statement has admitted that he took the entire ground floor from the petitioners and allowed respondent No. 2, who is husband of his cousin, to stay with him on payment of proportionate rent. Respondent No, 2 in his written statement has also admitted that respondent No. 1 was getting rent receipts from Ram Kishan, petitioner No. 1, as he was required to produce the same before the college authorities from where he was to get the reimbursement of house-rent. In the written statement, respondent No. 2 has also stated that rent receipts were in possession of the respondents for the rent jointly paid by them. No rent receipt has been brought on record to show that rent was being jointly paid by them of the respective portions stated to have been occupied by the respondents. Respondent No. 2 for the first time in his evidence, tried to prove that he gave three cheques of Rs. 150/- each, in the name of Ram Kishan, on various dates in the year 1979. For this, he has produced on record the statement of his account, Exhibit R-1, maintained by bank, i e, Punjab National Bank. He also produced on record the counterfoil of the cheque-book, Exhibit R-2, to show that cheques were given in the name of Sardar Ram Kishan Singh. From the statement of account as well as from the counterfoil of the chequebook, Mr. Aggarwal, Advocate, for the respondent wanted me to draw an inference that three times, rent was paid at the rate of Rs. 150/- per month to the petitioner, Ram Kishan, and therefore, respondent No. 2 is a tenant under the petitioner I am afraid to accept this contention for the reason that firstly, it is not the case of respondent No. 2 in his written statement that at any stage, rent was being paid at the rate of Rs. 150/- per month individually by both the respondents and secondly, respondent ha; failed to bring on record the statement of account of the Bank, pertaining to that of Ram Kishan, petitioner. The original cheques were also not summoned which could have proved that these cheques were encashed by petitioner, Ram Kishan. Counterfoil of the cheque book, Exhibit R-2 shows that cheques were issued in the name of Sardar Ram Kishan Singh and similarly, in the statement of account, Exhibit R-1, it is mentioned that cheques were issued in the name of Sardar Ram Kishan Singh. The Rent Controller rightly found that these cheques do not pertain to the petitioner as the petitioner is known as ''Ram Kishan'' and not ''Sardar Ram Kishan Singh''. The appellate Authority by observing that petitioner Ram Kishan is a sikh gentleman, assumed that cheques must have been issued in his name and were got encashed by him. This approach of the appellate Authority is wholly erroneous in law inasmuch as merely because the petitioner who was present at the time of hearing of the appeal and was found to be a sikh gentleman, is not sufficient enough to hold that cheques were given to him and he got the same encashed. It was for the respondent to prove by leading satisfactory and convincing evidence to the effect that these cheques were got encashed by the petitioner. As already noticed, it is also not the case of respondent No. 2 that at any stage, rent was paid by him individually, rather his case is that the rent was being paid at the rate of Rs. 300/- per month, which was being contributed by both the respondents equally. Mr. Aggarwal also referred to some part of evidence on record, i. e three letters marked ''A'' ''B'' and ''C, written by the Estate Office, Chandigarh, to show that respondent No. 2 is in possession since 1974. The answer to this is given in Exhibit ''AX'', i. e. letter dated 10-12-1975, written by the petitioner, Ram Kishan to the Estate Office, Chandigarh, in which he stated that in case the premises are being misused, then enquiry be made from Mr. G. D. Jindal (respondent No, 1) who is his tenant. This shows that petitioners never admitted respondent No. 2 to be their tenant. If respondent No. 1 allowed respondent No. 2 who is his close relative, to stay with him or to share accommodation with him, it will not make respondent No 2 tenant. The relationship of landlord and tenant is one of contract. In the present case, no such contract has been proved on record. In these circumstances, the finding of the appellate Authority that respondent No. 2 is a tenant, cannot be accepted.

Faced with this situation, Mr. Aggarwal, counsel for the respondent contended that the day on which the petition was filed, respondent No. 1 was not occupying the premises and therefore, respondent No. 2 cannot be treated as a sub-tenant. His precise contention was that respondent No. 2 in such a situation would be a trespasser and for the ejectment of a trespasser, the only forum is Civil Court. I am afraid to accept this contention also. The premises were let out to respondent No. 1, who because of his close relationship with respondent No. 2 allowed him to occupy a part of the tenanted premises. He under the law, had no right to transfer or sub let the premises without the consent in writing of the landlord. Respondent No. 1 abandoned a portion of the premises and other portion is still being occupied by respondent No. 2. There was no surrender of tenancy rather it was a case of abandonment of part of premises. Before leaving the premises, respondent No. 1 had neither taken the permission of the landlord, nor had paid the rent. Respondent No 2 having failed to prove that he is a tenant under the petitioner, the only inference which can be drawn is that respondent No. 1 has sub-let the primises to respondent No. 2. The Rent Controller has the jurisdiction to order ejectment of a tenant as well as sub-tenant, if the landlord successfully proves that the tenant has sublet the premises.

As a result thereof, the revision petition is allowed, the order of the appellate Authority is set aside and that of the Rent Controller is restored with costs which are assessed at Rs 500/-. However, the respondents are allowed two months'' time to vacate the premises provided they pay/deposit the entire arrears of rent within one month from today, and also file an undertaking before the Rent Controller within one month, to the effect that they shall hand over the vacant possession of the premises on the expiry of aforesaid period.