Shri Ram Parkash Jain and Another vs Shrimati Kaushalya Devi

J.V. Gupta, J.—The tenant-petitioners have filed this revision petition against the order of the Appellate Authority, Jullundur, dated 8th September, 1975, whereby the order of the Rent Controller, directing their ejectment was maintained.

Smt. Kaushalya Devi, landlord-respondent, filed the ejectment application on the ground, inter-alia, that Ram Parkash, tenant, had illegally sublet the shop in dispute with Abhey Kumar without her permission, and, therefore, both of them are liable to be ejected from the premises in dispute. The claim of the landlord was resisted by both the tenants. It was pleaded that earlier the landlady filed a suit for possession against Abhey Kumar after the death of his father Rulia Ram, who was the tenant of the shop at the rate of Rs. 20/- per month. In that suit, a compromise was effected on 31st October, 1968, where by Abhey Kumar was to remain in possession of the shop in dispute as a tenant under the landlady at the rate of Rs. 60/- per month. The landlady apprehending that Abhev Kumar may not file an application for fixation of fair rent, got rent note executed in her favour from one Bhagat Ram who was the clerk of a lawyer, on that very day, i.e. 31st October, 1968, Exhibit R. 7 and, subsequently, on 22nd November, 1968, Exhibit A-2, from Ram Parkash in her favour. It was further pleaded that neither Ram Parkash nor Bhagat Ram over came in possession of the shop and it had remained continuously with Abhey Kumar. The payment of rent by Ram Parkash to the landlady was denied and it was stated that the rent was paid by Abhey Kumar, though the receipts issued were in the name of Ram Parkash. The arrears of rent claimed in the ejectment application were tendered on the first date of hearing by Abhey Kumar, the alleged subtenant, but the same were not accepted. On the pleadings of the parties, the Rent Controller, framed the following issues:-

Whether there is relationship of landlord and tenant between the applicant and the respondent No. 1?

Whether the respondent No. 2 is a sub-tenant of respondent No. 1 by way of sub-letting?

Whether respondent No. 1 is liable to be ejected on the ground of non-payment of rent by him?

Whether the applicant is barred from filing the application by his act and conduct?

The Rent Controller found all the issues in favour of the landlord and consequently, ordered ejectment of the tenants. In appeal, the findings of the Rent Controller were affirmed. Feeling aggrieved against this, the tenants have come up in revision to this Court.

Shri H.L. Sibal, Senior Advocate, learned counsel for the petitioners, vehemently contended that the facts are not much in dispute, except the fact whether the possession has been throughout with Abhey Kumar or it was ever transferred at any time either to Bhagat Ram or to Ram Parkash. The execution of the rent-note, Ex. R7, dated 31st October, 1968, by Bhagat Ram in favour of the landlady and, subsequently, rent-note, Ex. A2, dated 22nd November. 1968. executed by Ram Parkash in favour of the landlady are not disputed According to him, it was only a paper transaction. Ram Parkash or Bhagat Ram never came into possession of the premises in dispute and thus they never became tenants as contemplated u/s 105 of the Transfer of Property Act, as well as under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). According to him, transfer of a right to enjoy such property or in other words transfer of possession is a sine qua non of a lease and in the absence of any transfer of possession, no lease can take place and the execution of the rent-note, if any, will be a mere paper transaction He further contended that as a matter of fact, all this was done by the landlord in order to avoid the rigours of the Act. Which could not be allowed by the Courts. Moreover, both Ram Parkash and as well as Bhagat Ram have appeared in the witness-box and denied that they have ever came in possession of the premises in dispute. If the alleged tenant Ram Karkash never came in possession of the premises in dispute as a tenant, then the question of subletting by him did not arise. Thus, according to the learned counsel, the findings of the Authorities below are wrong and illegal and are liable to be interfered with in this petition.

On the other hand, learned counsel for the landlord, vehemently contended that both the Authorities have concurrently found in favour of the landlord as regards the question of subletting. According to him, it being a finding of fact, should not be interfered with in this revision petition In support of this contention, he cited M/s Sri Raja Lakshmi Dying Works and others v. Rangaswamy Chettiar I.R. 1908 S.C. 1253.

He further contended that in view of the admission made by Ram Parkash in Ex. A2. he cannot be allowed to say now that he never got into possession of the premises in dispute. He further submitted that, as a matter fact, Ram Parkash never appeared as his own witness and when he appeared as a witness on behalf of the landlady, his statement denying all these facts could not be accepted, as held by Appellate Authority. According to him, an admission is the best evidence that an opposing party can rely upon and in the absence of any cogent evidence, both the Courts below on the basis of the admission of Ram Parkash tenant, have rightly come to the conclusion that he has sublet the premises to Abhey Kumar. In support of this submission, he referred to Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, .

I have heard the learned counsel for the parties at a great length. As stated earlier, the facts are not much in dispute. There is no reliable evidence on the record to prove that Ram Parkash or Bhagat Ram ever got into possession of the premises in dispute even after the execution of the rent-notes, Ex. A. 2 and Ex. R. 7 respectively by them. Both of them have appeared in the witnesses-box and have categorically denied that they ever got into possession of the premises. Moreover, Bhagat Ram is a clerk of a lawyer and is working as such since long, whereas Ram Parkash is carrying on his business in a separate shop for a long time. The statement of Ram Parkash has not been accepted by the Appellate Authority on the ground that he never appeared as his own witness and his failure to do so, would raise a presumption against him that he could not support his case. This approach of the Appellate Authority, in my opinion, is wholly wrong and illegal which has thus misdirected himself in deciding this case. Before the landlady summoned Ram Parkash as her witness, it was her duty to ascertain by making an application before the Rent Controller that whether Ram Parkash will be appearing as his own witness or not. If he had refused to appear as his own witness, only than she should have summoned Ram Parkash as her witness failing to do so, the statement made by Ram Parkash cannot be ignored on the ground that he did not appear as his own witness. His failure to do so, would not raise any presumption against him that he could not support his case. It was unnecessary for Ram Parkash to appear again as his own witness when he had already appeared as a witness for the landlady and had made his statement and had thus, explained his position.

Moreover, it has also been wrongly observed by the Appellate Authority that the surrender of possession can be made even impliedly. I do not find any reason for making these observation as in the present case there was no question of any surrender by implication The arrangement between the landlandy and Abhey Kumar seems to be that he will pay the rent in the name of Ran Parkash. Thus, the liability to rent was that of Abhey Kumar throughout and not that of Ram Parkash. A person will be liable to pay the rent only if he is in occupation of the premises as a tenant. The position of the landlord, who is entitled to receive rent for the time-being is different in this respect. It is not necessary that he should be owner of the demised premises. He becomes entitled to receive the rent if he allows the tenant to occupy the premises on behalf of the owner of the property. Thus, the execution of the rent-note, Ex. A-2 by Ram Parkash in favour of the landlady was a mere paper transaction and was never given effect to. The rent realised by the landlady from Ram Parkash was paid by Abhey Kumar though the receipts were issued in the name of Ram Parkash. From the circumstances and the conduct of the landlady it is clear that it is a case of a device to avoid the rigours of the Act and the Courts cannot be a party to such a device.

As regards the admission made by Ram Parkash in Ex. A. 2 it has been fully explained by him in his statement. It is true that an admission is the best evidence that an opposing party can rely upon, but at the same time it is not conclusive and can be successfully withdrawn or proved erroneous. Even in Naryan Bhagwantrao''s case (supra), it has been so observed. In the present case Ram Parkash as well as Bhagat Ram have both fully explained the circumstances under which the said admission was made by them in Ex. R 7 and Ex. A2. Moreover it is not the case of the landlady that by virtue of the admission by them she has changed her position in any way. She has not claimed any estoppel against Ram Parkash. In this view of the matter, the whole view taken by the Appellate Authority in this respect is wholly wrong and illegal and thus the finding arrived at is vitiated and liable to be interfered with in this revision petition.

The question of sub-letting will only arise if there was any letting to Ram Parkash. If Ram Parkash was never the tenant nor he ever occupied the premises as such, then the question of subletting of the premises by him to Abhey Kumar, did not arise. From the facts and circumstances of the case, Abhey Kumar has been the direct tenant throughout after the death of his father Rulia Ram and has been paying the rent to the landlady though in the name of Ram Parkash.

For the reasons recorded above, this petition succeeds, the orders of the Authorities below are set aside and the application for ejectment filed by the landlord is dismissed with costs. Costs assessed at Rs. 300/-.