Sham Sunder vs Mahavir Parshad and Another

Harphul Singh Brar, J.—Babu Ram, father of the plaintiffs purchased a plot vide Registered Sale Deed dated September 3, 1965. Thereafter, the demised premises were constructed by him in 1966. The plaintiffs inducted one Dharam Chand as tenant vide Rent Note, dated April 27, 1966, Exhibit PI, at a monthly rent of Rs. 20/-. Vide Rent Note, dated June 16, 1966, Exhibit P2, Dharam Chand had sublet that shop to defendant Sham Sunder at a a monthly rent of Rs. 35/-without the consent of the plaintiffs or their father. Plaintiffs filed a suit for possession after terminating the tenancy of Dharam Chand on the ground of subletting. During the pendency of the suit, the Act was amended regarding exemption of buildings from the operation of the provisions of the Act constructed after March 31, 1962. So, the suit was dismissed as withdrawn. Thereafter, the plaintiffs filed Suit No. 763 of 1984 on August 23, 1984 for decree for possession declaring that the possession of Sham Sunder defendant was unauthorised on the suit property.

Defendant contested the suit. His case as per Para No. 3 of the written statement was that he was a direct tenant under Babu Ram father of the plaintiffs. However, in para 6 of the written statement, he took a stand that he was tenant under the plaintiffs. He admitted execution of the Rent Note Exhibit P2 in favour of Dharam Chand, but pleaded that he was in possession of the demised premises right from 1966 under Babu Ram and subsequently in order to obtain easy ejectment of the plaintiffs got Rent Note Exhibit P2 executed from him in favour of Dharam Chand who was benami tenant of the plaintiffs.

After the Replication was filed, the trial Court framed the following Issues:

1) Whether the plaintiffs are entitled for possession of the shop in dispute on the grounds given in the plaint? OPP

2) Whether this suit is barred under the principle of res-judicata? OPD

3) Whether the civil Court has got no jurisdiction to entertain and try this suit? OPD

4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD

5) Whether the defendant is direct tenant under the father of the plaintiffs as alleged in Para No. 3 of the written statement? If so, its effect? OPD

6) Whether the rent note executed by Dharam Chand in favour of the plaintiffs is benami and has got no binding effect on the defendant as alleged in Para No. 3 of the plaint? If so, to what effect? OPD

7) Whether Dharam Chand was not in possession of the shop as alleged in the written statement? If so, to what effect ? OPD

8) Relief.

In order to prove their case the plaintiffs proved on record Rent Note Exhibit P1, another Rent Note Exhibit P2, copy of Notice Exhibit P3, Postal Receipt Exhibit P4, Acknowledgment Due Exhibit P5, Plans Exhibits P6 and P7, Copy of Order dated September 8, 1978 Exhibit P8 and Copy of statement of learned counsel for the defendant Exhibit P9, and examined Satish Chand PW1, Budh Ram PW2, Subhash Chand PW3 and Babu Ram PW4.

On the other hand, the defendant exhibited on record copy of the statement of Dharam Chand Exhibit Dl recorded in previous litigation between the par- ties and himself appeared as DW1 and examined Token Dass DW2 in his support.

The learned trial Court after taking into consideration all the evidence and other material on record and hearing the learned counsel for the parties, dismissed the suit of the plaintiffs vide judgment and decree, dated August 28, 1986.

The plaintiffs preferred an appeal before the District Judge who after hearing the learned counsel for the parties and going through the record, reversed the judgment of the trial Court and consequently allowed the appeal of the plaintiffs.

Hence, this Regular Second Appeal.

The learned District Judge reversed the judgment of the trial Court and set aside its findings on Issues 1, 5, 6 and 7 on the following grounds :

That the plaintiffs are entitled to get the possession of the shop in dispute on the ground that the defendant was a trespasser;

That the defendant has miserably failed to prove that he was direct tenant under Babu Ram, father of the plaintiffs;

That rent note executed by Dharam Chand in favour of the plaintiffs was not benami and he being a tenant under the plaintiffs, the defendant who entered into the premises as sub-tenant under Dharam Chand vide rent note Exhibit P2 without the consent of the plaintiffs was certainly trespasser therein; and

That Dharam Chand was in possession of the shop in dispute under rent note Exhibit P1 dated 27.1.1966 as also at the time when the defendant executed rent note Exhibit P2 in favour of Dharam Chand on 16.6.1966.

In have heard the learned counsel for the parties and gone through the record with their assistance. Learned counsel for the appellant submits that the rent notes Ex.P.1 and P.2 are sham transactions and Sham Sunder defendant was a tenant directly under Babu Ram, father of the plaintiffs. Learned counsel for the appellant further argued that the suit filed by the plaintiffs was not maintainable in view of Section 13(1) of Haryana Rent Restriction Act and thus the Civil Court had got no jurisdiction to entertain and try the suit. He cited Sawan Ram v. Gbind Ram and Ors. (1980)82 P.L.R. 271 and Ram Kishan v. Harjinder Singh and Ors. (1982) 84 P.L.R. 82 to substantiate his arguments. The learned trial Court had decided this issue which was framed as issue No. 3 by the trial Court against the defendant-appellant. As there was no appeal against that finding filed by the defendant-appellant, the same issue was decided by the Lower Appellate Court against the defendant-appellant on the ground that the plaintiffs-respondents have brought the suit for possession claiming the defendant-appellant to be a trespasser. However, I allow the learned counsel for the appellant to argue on this point as it concerns the jurisdiction of the Court to entertain the suit. On the other hand, learned counsel for the plaintiff-respondents submits that Sham Sunder defendant-appellant was neither a direct tenant of Babu Ram nor, a tenant of the plaintiff-respondents. The plaintiffs had inducted Dharam Chand as a tenant vide rent note Ex. P.1 and vide rent Note Ex. P.2, Dharam Chand had sub-let the said shop to the defendant-appellant without the consent of the plaintiffs or their father. He according to them, was a trespasser. Dharam Chand had died and after his death, they filed a suit for possession against Sham Sunder defendant-appellant. Learned counsel for the plaintiff-respondents has further urged that merely the question of fact is involved in this case and the High Court cannot disturb a finding of fact arrived at by the First Appellate Court. He has cited Detty Pattabhiraswamy v. S. Hanymaya AIR 1959 S.C. 57 and Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, , to substantiate his arguments.

After hearing the learned counsel for the parties, and going through the record with their help, I do not find any infirmity or illegality in the judgment of the Lower Appellate Court. Plaintiffs'' case is that vide rent note Ex. P.1, Dharam Chand had been inducted into the shop as their tenant but said Dharam Chand had sub-let the shop in favour of the defendant-appellant vide rent note Ex.P.2. Subsequently without their consent. Thus they instituted this suit for possession claiming the defendant-appellant Sham Sunder to be a trespasser. On the other hand, the defendant-appellant had pleaded that he was inducted into the shop in dispute in the year 1966 by Babu Ram, father of the plaintiff but subsequently he was led to execute rent note Ex. P.2 in favour of Dharam Chand although he was already in possession of the shop in dispute as a tenant under Babu Ram and hence the said document was paper and sham transaction and he being a direct tenant under the landlord Babu Ram, no decree for possession could be passed against him. In order to substantiate their plea, the plaintiffs examined P.W.I Satish Chand son of the document-writer Mai Dayal who had scribed the rent note Ex. P.1 dated 27.4.1966 by Dharam Chand in favour of the plaintiffs. Budh Ram P.W.2 the attesting witness of the said rent note has proved its execution. There is no rebuttal to the said evidence. It is thus amply proved that Dharam Chand did execute the rent note Ex. P.1 in respect of the demised premises on 27.4.1966 in favour of Subhash Chander and Mahavir plaintiffs through Babu Ram, their father. Subhash Chander P.W.3 supported his case at the trial. Babu Ram, P.W.4 father of the plaintiffs has also fully supported the case of the plaintiff-respondents. He was cross-examined. But the case of the defendant-appellant was not put to him, that rent note Ex.P.2 was paper and sham transaction and was got executed in favour benami tenant Dharam Chand and that defendant Sham Sunder was already a tenant to him (Babu Ram). On the other hand Sham Sunder has appeared as his own witness as D.W.1. and has supported his case.

D.W. 2 Takan Dass is a shopkeeper having his shop in the neighbourhood of the demised premises. He could not shower light on a very important aspect of the case, i.e. on the plea of the defendant that he was a tenant under Babu Ram. Concededly, the document Ex.P.2 was not executed in his presence. He has also not stated that Sham Sunder had ever paid rent to Babu Ram. Concededly, the document Ex.P.2 was not executed in his presence. Much stress, however, without any use to the defendant-appellant has been laid down on the statement of Dharam . Chand, Ex. D.1 recorded in previous litigation between the parties. This statement translated into English would read as under-

"I have seen the shop in dispute. Towards the north there is a road. In the south house of Piare Lal situates. In the east shop of Piare Lal was in existence. In the west property of Som Nath, again, shop of Sohan Lal was situated. The shop in dispute was constructed in 1966. It was on rent with Sham Sunder previously. I had let it out to him. Rent note was scribed. The demised shop was owned by Subhash Chander etc. plaintiffs. I had obtained the said shop from their feather Babu Ram at a monthly rent of Rs. 20/-. Sham Sunder was paying me rent at the rate of Rs. 35/- per month. He was not paying rent to me for the last one year. I had been issuing rent receipts to hint. I had paid rent to the plaintiffs upto 1973.

x x x on behalf of plaintiffs by Shri R.K. Garg, Advocate.

I had executed rent note Ex. PA in favour of the father of the plaintiffs. It bears my thumb impression. I had affixed my thumb impression thereupon after admitting it to be correct.

x x x on behalf of defendant No. 2 by Shri S.K. Kapur, Advocate. I had not engaged any counsel in this suit prior to this date, again said, I do not remember if I had engaged any counsel or not. I do not remember if I had submitted any document in writing in this suit. Had any such document been submitted on my behalf in this suit then that must have been done by deceiving me, Except Wakalatnama I had not given any paper to my counsel till date. It is wrong to suggest that Babu Ram had paid fee to my counsel or that he had called me in the court today.

I run a shop near the station. It is my Dhaba in partnership with Babu Ram. I do not know whether photo Ex. D.1 pertains to my Dhaba because I cannot see properly. I cannot identify my thumb impression on document Ex. PA. I and Babu Ram are running Dhaba in partnership since he was of 18/19 years of age. Now the age of Babu Ram is about 42/43 years. The Dhaba opposite to the police station was owned by the plaintiffs and not by me. Dhaba. opposite to the railway station was being run for the last 40 years. About one year back we had demolished it and had given all the goods therein to the plaintiff and he was running Dhaba opposite to the police station. Now Pandit Tara Chand was owner of that Dhaba. Previously we had been paying Rs. 120/-per month as rent to Tara Chand for this Dhaba. Now the plaintiff was paying the same. I do not remember as to for what period we had paid rent to Tara Chand. Again said we had paid rent to him for one year. The Dhaba opposite to the police station was being run under the name and style of ''Vaishno Dhaba''. I do not remember whether under ''Vaishno Dhaba'' we had got written firm''s name Dharam Chand Babu Ram.

I do not keep any account. Babu Ram was looking after it because he was serving me. He used to give me Rs. 6/- per day. I had not been issuing any receipt to Babu Ram. I have no writing with regard to rent or any money transaction. I used to tell Babu Ram that "additional amount of Rs. 15/- which was received from Sham Sunder was kept by me. Babu Ram had never objected to it. I had never run shop in the demised shop. I never did any business independent of Babu Ram. It is incorrect to suggest that I and Babu Ram had purchased the shop in dispute out of the joint business or that I had let out the said shop to Sham Sunder without the consent of Babu Ram; or that I have deposed falsely at the instance of Babu Ram. It is also incorrect to suggest that the shop in dispute had been constructed prior to 1962."

If the above statement is read as a whole, no conclusion can be drawn that Babu Ram inducted Sham Sunder as a tenant in the demised shop originally. Moreover, there were no compelling circumstances which led Sham Sunder to execute the rent note Ex.P.2 in favour of Dharam Chand when according to him, he was already in possession of the demised shop under Babu Ram. Though in Ex. D.1, Dharam Chand stated that he did not run any business in the demised shop independent of Babu Ram but it does not mean that he was not in possession of the demised shop as a tenant under the plaintiffs or Babu Ram. There is nothing on the record to show that he was a tenant of the plaintiffs in the demised shop when the defendant-appellant has completely failed to prove that he was direct tenant under the plaintiff-respondents or their father Babu Ram. He has also failed to adduce any evidence which could show that the rent note Ex.P.1. and Ex.P.2 are sham transactions. The plaintiff-respondents were thus right in filing the suit for possession against Sham Sunder who was not their tenant or the tenant of their father who was a mere tresspasser. The authorities cited by the learned counsel for the appellant do not help him because in the case in hand, the relation of tenant and landlord is not proved between the parties, and also the rent deeds Ex. Pl and Ex. P2 have been proved to be executed in accordance with law. There is not an iota of evidence which could even point out that the rent deeds Ex. Pl and Ex. P2 were mere paper transactions or sham transactions. Thus, the provisions of Section 13(1) of the Haryana Rent Restriction Act are not applicable. If Dharam Chand tenant were alive, then of course, it could be a ground for his ejectment on the basis of sub-letting and then a civil suit could not be entertaned but here, in this case, when Dharam Chand teenant himself has died, the plaintiffs are left with no alternative except to file a suit for possession against Sham Sunder who is a tresspasser being in possession of the demised premises on the basis of sub-letting by Dharam Chand who is no more.

In view of my above discussion, I do not find any force in the argument of the learned counsel for the appellant in favour of the appellant. Resultantly, this appeal is dismissed and the judgment and decree of the learned Lower Appellate Court stands.