Shiv Charan Dass vs Ujagar Mal and Others

O. P. Garg, J.—This is defendant''s revision application under Section 25 of the Provincial Small Causes Courts Act against the judgment and decree dated 2441987 passed by Sri Brij Mohan Joshi, the then IXth Additional District Judge, Meerut.

Briefly stated, the facts of the case are that late Ujagar Mal Jain instituted SCC Suit No. 58 of 1978 for the relief of possession after ejectment of deceased defendant No. 1Asha Ram (whose legal heirs are defendantopposite party Nos. 2/1 to 2/5) and the alleged subtenantShiv Charan Das, the present defendantrevisionist, from a shop situate in Mandi Ghanshyam Ganj, Quasba Baraut Tahsil Baghpat in district \\Meerut and for recovery of arrears of rent and mesne profits. It was alleged that late Asha Ramdefendant No. 1 was the tenant of the disputed shop at a monthly rent of Rs. 200/ and that he had failed to pay rent w.e.f. 141975 onwards, and has also illegally sublet the shop to Shiv Charan Dasdefendant No. 2. The shop was said to have been constructed in the year 1973 and consequently it was alleged that the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act'') did not apply to the shop in question. Notice to quit dated 61I97C under Section 106 of the Transfer of Property Act was sent to Asharam, the original tenant. Neither he, nor his subtenant vacated the disputed shop. Besides the relief of possession over the shop, a sum of Rs. 6,443/was claimed as arrears of rent for the period 621978, Rs. 750/ as mesne profits, up to the date of the suit and pendente lite and future damages at the rate of Rs.200/per month.

Asha Ram, defendant No. 1 contested that suit and admitting the fact that he was the tenant of the shop in question, pleaded that he had vacated the s. hop in the year 1968 itself and that no rent was due against him as he had never been in possession of the shop after vacating the same. He has also alleged that the rate of rent was Rs. 650/ per year and not Rs. 200/ per month and that he had not sublet the disputed shop to the defendant No. 2Shiv Charan Das. He maintained that the shop is an old one and the provisions of the Act applied.

A separate written statement was filed by Shiv Charan Das, the present revisionist who was defendant No. 2. He has alleged that after the vacation of the shop by Asha Ram in the year 1968, he was inducted as a tenant on yearly rent of Rs. 650. He claims himself to be the chief tenant of late Ujagar Mal. According to him, he had paid the rent upto Deepawali 1978 and since no notice, determining his tenancy has been served upon him, he is not liable to be evicted. He has also taken the plea that the shop was not reconstructed in the year 1973 and since it was an old shop, the provisions of the Act would apply.

On the pleadings of the parties, learned trial Court framed necessary issues and after taking into consideration and appraising the evidence on record and the respective submissions on behalf of the parties, came to the conclusion that the provisions of the Act are applicable to the disputed shop, that the rate of rent of the shop in question was Rs. 650 per annum and not Rs. 100/ or Rs. 200/ per month; that the defendant No. 1Asha Ram never vacated the shop in question in the year 1968 and that he had inducted Shiv Charan Das defendant No. 2 as a subtenant who continues to be in actual and physical possession of the shop. It was also held that the defendant No. 1 had failed to pay rent for the period August 1975 onwards even at the rate of Rs. 650/ per annum and consequently he has committed default in payment of arrears of rent thereby rendering himself liable to ejectment alongwith subtenant.

Heard Sri Pramod Kumar Jain learned Counsel for the defendantrevisionist and Sri Pramod Jain, learned Counsel for the plaintiffrespondent No. 1 (i.e. legal heirs of the deceasedplaintiff Ujagar Mal).

On behalf of the defendant revisionist, it was vehemently argued by Sri Pramod Kumar Jain that the court below has taken a perverse view of the evidence on record and has committed a grave illegality in recording a finding that the defendantrevisionist is the subtenant of the original tenant Asharamdefendant No. 1 and that in view of the illegal and perverse finding the decree for ejectment, could not be passed against the defendantrevisionist. This submission has been repelled by Sri Pramod Jain, learned Counsel for the plaintiffrespondents.

After having heard learned Counsel for the parties, 1 find .that it would be proper to clear the decks and remove cobwebs about the controversy between the parties in respect of the applicability or otherwise of the provisions of the Act as a finding on this point is to have a bearing on, the question of default in payment of arrears of rent The firm stand taken by the plaintifflandlord is that the disputed shop was reconstructed and renovated in the year 197374 and, therefore, the provisions of the Act did not apply. There is no dispute about the fact that Asharamdefendant No. 1 was inducted as a tenant in the disputed shop sometime in 1952 as has been clarified by late plaintiff Ujagar Mal in his statement under Order X, Rule 2, CPC. Ujagar Mal continued to remain in occupation of the said shop admittedly as a tenant. The shop was an old one to which ordinarily, the provisions of the Act would have been applicable but for the plea that it was reconstructed in the year 197374. There is nothing on record to indicate that the old shop was demolished and reconstructed or a substantial part of it was demolished and reerected in the years 197374. A new shop could not be brought into existence without getting the plan sanctioned from the Local Authority. There is no sanctioned plan to indicate that the shop was reconstructed. The reconstruction of the shop was not possible unless the sitting tenant or the person who was in its actual and physical possession was asked to vacate the shop and was allowed to reenter the possession after reconstruction of the shop; Whether the shop was in possession of Asharam or in possession of Shiv Charan Das, none of them was required to vacate the old shop in order to enable the landlord to reconstruct the same. Obviously, at the relevant time, the shop was in occupation of the defendant revisionist. There is no averment on behalf of the plaintiffrespondent that at some point of time, the defendantrevisionist was asked to get out of the shop so that it could be reconstructed. Except for the bald statement of the plaintifflandlord, there is no reliable oral or documentary evidence to establish the fact that the old shop, which admittedly existed in the year 1952 and in which Asharamdefendant No. 1 was inducted as a tenant was demolished and reconstructed. The plea of the landlord that the disputed shop was reconstructed in the year 197374 stands falsified from the facts and circumstances of the case. The court below has rightly recorded the finding that the provisions of the Act are applicable to the disputed shop.

The main controversy between the parties centers around the fact whether Asha Ram defendant No. 1, who admittedly was original tenant, had sublet the shop in question to Shiv Charan Das defendant revisionist, or the latter is in possession and occupation of the shop in his own right as a tenant directly of the plaintifflandlord. It is accepted at all hands that Asharam was the tenant of the shop. He was carrying on his business from the shop in question of which he admittedly was the tenant of a long standing, having been inducted in or about the year 1952. Asharam has pleaded that he had vacated the shop in the year 1968 and that thereafter he had nothing to do with the disputed shop. This fact is denied by the plaintifflandlord. There is nothing on record to establish that Asharam had, in fact, vacated the shop in the year 1968 and that he delivered the vacant possession of the shop to the landlord, as he was duty bound to do so under the provisions of Section 108 (q) of the Transfer of Property Act, 1882. The court below has also recorded a finding of fact that Asharam had executed a rentnote dated 3101968 (paper No. 29A) by which the rate of rent was enhanced to Rs. 100 per month from Rs. 650 per year. The validity and admissibility of this unregistered document has been challenged on behalf of the defendantrevisionist both before the Court below and before this court, with reference to the provisions of Registration Act. It is true that the document, as such, is inadmissible but in view of the proviso to Section 47 of the Registration Act and in view of the law laid down in AIR 1981 (NOC) 128 Chhuttan Khan v. Zila Parishad and 1983 ARC 422; Jarif Ahmad v. Satish Kumar it can be looked into for colateral purposes. The very fact that the document was executed by Asharam indicates that on 3101968 he was in possession of the disputed shop. This document, therefore, cuts at the very root the stand taken by him that he had vacated the shop in the year 1968. The learned trial Court has rightly concluded that if Asharam had, in fact, vacated the shop in 1968, there was hardly any occasion for him to have executed a rentnote (paper No. 20A) no 3101968. This document further falsified the stand taken by the present defendantrevisionist that he came in occupation of the disputed shop two or three months prior to Deepawali in the year 1968 directly at the behest of the landlord. The finding of the court below that Asharam continued to remain in possession of the disputed shop as a tenant and that he did not vacate the shop in the year 1968 as alleged by him, is according to law, and does not suffer from any infirmity. Though evidence is not required to be reappraised by the revisional court, I have done so in my quest to reach the truth and find myself in agreement with the court below on the point.

Admittedly, Asharam is not in actual and physical possession of the disputed shop. The shop is in possession and occupation of Shiv Charan Das, defendantrevisionist. The moot point for consideration and determination, therefore, is as to in what capacity the defendantrevisionist is occupying the disputed shop. Is he a chief tenant having been directly inducted by the plaintifflandlord or a subtenant having been let into possession by the original tenant Asharam ? As said above, Asharam did not vacate the shcp and hand over the possession to the landlord in the year 1968. He continued to remain as tenant. It has come in evidence that Asharam has another shop in the vicinity.

The question of burden of proof of subletting which originally was vesting in nature come to the well embedded and in short, it may be mentioned that the landlord shall be deemed to have discharged his initial burden if he establishes that a person other than the tenant is in exclusive possession of the tenanted accommodation. While considering the nature of onus in the case of eviction on the ground of subletting, the court cannot overlook the fact that it is by no means an easy task since direct evidence of subletting is seldom available. Conscious of the fact that the consequences of subletting are rigorous, a sublease is created by tenant in a clandestine manner and obviously the landlord would be a complete stranger to such arrangement. It is also in the common interest of both the tenant and the subtenant that the nature of transaction between them is kept a closely guarded secret and no piece of evidence reflecting the same is allowed to leak out, thereby exposing their relationship to the risk of being evicted at the hands of the landlord. No prudent tenant is, therefore, expected either to enter into such an agreement or receive rent from his subtenant or pass receipt of such rent in the presence of others. The landlord who is placed in such a quandary can only prove the relationship of the tenant and the subtenant by attending circumstances, which may raise inference of subletting or assignment. It is also true that mere presence of a third person in the premises would not raise a presumption of subtenancy. The fact whether the subtenancy has come to be created is to be judged and gauged in the light of the facts and circumstances of a particular case. If a person other than the tenant has been in possession of the tenanted accommodation for a considerable long time and is doing business from there, a legitimate inference of subtenancy can be drawn. In these circumstances, the landlord would be deemed to have discharged the initial burden placed upon him, if he succeeds in showing that the tenant had parted with an handed over exclusive possession and control of the demised premises to the alleged subtenant. It is thereafter for the tenant to prove and explain the circumstances leading to such transfer of possession. The only person who can account for such transfer of possession are the tenant and the transferee. It, therefore, follows that in a situation of this kind the onus would shift on the tenant to show that the transfer of possession was not by way of subletting or assignment and that dispite such transfer of possession, the tenant retains with him legal right of possession. Where the tenant fails to so satisfy the court, the landlord must be said to have established his plea of subletting. In this connection, a reference may be made to a celebrateddecision of Himachal Pradesh High Court, AIR 1987 HP 9, Hemraj v. Basta Singh and another, as well as, to a decision of this court in 1984 (2) ARC 114 Jagdish Prasad v. Additional District Judge, Ghaziabad and others. In Jagdish Prasad''s case (supra), a reference was made to the earlier decision in AIR 1973 Allahabad 229 Tej Shankar Chaubey v. TejNarain. As regards burden of proof, it was held that initially onus lies on the plaintifflandlord and he must prove two things; firstly, that the defendant No. 1 was his tenantinchief of the accommodation in suit and secondly, that the defendant No. 2 (to whom he alleges to be subtenant of defendant No. 1) is in actual physical possession of such accommodation. On such proof, onus shifts to defendant No. 2, who denies his status as subtenant and asserts himself to be tenantinchief, to prove that he is the tenantinchief of the accommodation.

The matter also came to be considered by the apex Court in the case of Rajbir Kaur v. Chokesri (1989) 1SCC19, in which it was observed:

�If exclusive possession is established and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances, of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the subtenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting so, of course, on the appellants. The burden of establishing fact and contentions which support the party''s case is on the party who takes the risk of nonpersuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though, the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that, appellants have been forced by the courts below to have established exclusive possession of the icecream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forth coming from the respondent appropriate to the situation as found.�

The above observations came to be approved and reiterated by Hon''ble Supreme Court in the case of M/s. Nihal Chand Rameshwar Das and others v. Vinod Kumar Rastogi and others, (Judgment Today 1994(4) SC 113). The findings recorded by the court below are clearly in conformity with the above observations made by the Supreme Court and are in keeping with the law with regard to burden of proof in the matter of subletting. The landlord has established and rather it is admitted fact that Asharamdefendant No. 1 has been his chieftenant in the disputed shop which was never vacated by him. It is also admitted that Shiv Charan Das, defendantrevisionist has been in long standing possession, i.e., for the last about one decade before the institution of suit and has been carrying on his business from the disputed shop as the chieftenant has shifted his business to his own shop in the vicinity. A faint suggestion was made by the learned Counsel for the defendantrevisionist that the landlord has accepted rent from the defendantrevisionist and, therefore, it can be concluded that the landlord has accepted the defendantrevisionist as his tenant and now it does not lie in the mouth of the plaintifflandlord to allege that the defendantrevisionist is subtenant. It was also urged that under the provisions of Section 14 of the Act, since the defendant No. 2 has been in possession of the disputed shop with the consent of the landlord, his possession shall stand regularised. These submission are wide off the mark. Except for the fact that certain entries have been made about the payment of rent by the defendantrevisionist in his business account books, there is no documentary evidence record that the plaintifflandlord has accepted rent directly from him. The court below has rightly rejected the evidence of payment of rent by the defendantrevisionist which is based on the entries made in the account books. The fact, therefore, remain that there has been no payment of rent by the defendantrevisionist or acceptance thereof. No document of payment of rent by the defendantrevisionist or acceptance by the plaintiffrespondent is on record. The plea of estoppel and acquiescence is not applicable in the case of subtenancy. This matter has been dealt with by the Supreme Court in the case of Shalimar Dar Products Ltd. v. H. C. Sharma and others, 1988 (1) SCR 1023, in which it was held that mere permission or acquiescence would not amount to consent on the part of the landlord to sub letting. The consent on the part of the landlord must be to the specific subletting and must be in writing. There is no implied permission in the matter of subletting. In another case reported in 1990(1) SCC 169 Dulichand v. Jagmender Das, it was held that there cannot be any implied consent or waiver by a landlord. The consent of the landlord should be in writing. The plea that the possession of the defendantrevisionist stands regularised under Section 14 of U.P. Act No. XIII of 1972 is otiose for one simple reason that this plea was not pressed into service before the trial Court. Moreover, as said above, there is nothing on record of the case that the defendantrevisionist had occupied the shop and continued to do so with the consent of the plaintifflandlord.

The learned trial Court rightly recorded the finding that the defendant No. 1 who was chieftenant in the disputed shop had sublet the same to the defendantrevisionist Shiv Charan Das. It is one of the grounds available for ejectment of the tenant alongwith subtenant even if provisions of the Act are held to be applicable to the disputed accommodation. Not only this, the defendant No. 1 Asharam has also committed default in payment of arrears of rent for a period more than four months and consequently, on both the grounds of default as well as subletting the defendantrevisionist as well as chieftenant Asharam are liable to be evicted.

At this stage, it would be worthwhile to mention that the scope of revision under Section 25 of the Provincial Small Causes Courts Act is quite limited. The court in deciding such a revision has to satisfy itself that the trial Court''s decree or order is according to law. The dictum of the Supreme Court in Matini Ayyappa Naicker v. Seth Manghraj Udhavdas Firm, AIR 1969 SC 1344 that a wrong decision on fact is also a decree according to law, has to be kept in mind. The provision confers a supervisory and not an appellate power. The record can be called for seeing that the decree is according to law. The revisional court cannot interfere with the findings recorded by the court below if the evidence has been properly appraised and the over all view taken by the court below is justified. I do not find any reason or ground todiffer with the conclusions arrived at by the court below. The impugned decision of the court below is according to law and calls for no interference in exercise of revisional jurisdiction, under Section 25 of the Provincial Small Causes Court''s Act.

In the result, the revision is devoid of any merits and substance and is accordingly dismissed with costs.

Dated 2241998.

Sd./O.P.Garg.

2241998.

After delivery of this judgment, Sri P. K. Jain, learned Counsel for the tenant revisonist urged that some time may be allowed to vacate the disputed shop. Sri Pramod Jain, appearing on behalf of the landlordopposite parties has no objection in allowing six months time to the tenantrevisionist to vacate the shop. Accordingly, it is ordered that the decree for dispossession of the tenantrevisionist shall not be executed prior to 30th November, 1998 provided that:

(i) the tenantrevisionist files an affidavit before the court below within a period of one month from today that he shall vacate the disputed shop and hand over its vacant possession to the plaintifflandlord by the forenoon of 1st December, 1998; and

(ii) the tenantrevisionist deposits the entire amount of mesne profit at the rate specified by the court below upto 30th November, 1998 within a period of one month from today.

In case either of the above conditions or both of them is/are not complied with, the decree for dispossession shall become executable all at once. Revision dismissed.