Shrimati Daya Wati vs Duli Chand and another

Madan Mohan Punchhi, J.—This is an unsuccessful landlady''s revision petition challenging the orders of the Appellate Authority, Gurgaon, as well as the Rent Controller, Ballab-garh whereby her eviction petition was dismissed. The demised premises consists of a room and a tin-shed shown in the plan, Exhibit A-1. Its owner is Parma Nand proforma Respondent. The Petitioner received the said property under mortgage on 14.6.1967 vide deed. Exhibit A-3 dated 1.8.1967, she created tenancy in favour of Duli Chand, tenant-Respondent, at the rate of Rs. 40/- per mensum. The Petitioner also claimed that the said Duli Chand sublet the demised premises to Suraj Parkash, alleged sub tenant Respondent for a sum of Rs. 42/ per mensem. She claimed eviction of the tenant and the sub-tenant on the basis that the tenant had failed to pay the arrears of rent amounting to Rs. 760/- for a period of 19 months and also for the misconduct of subletting. Duli Chand Respondent did net contest the petition whereas Suraj Parkash, Respondent No 2, did so vigorously. The latter raised the plea that he was a direct tenant of the shop in dispute under the original owner Parma Nand and that under his authority Duli Chand Respondent had been receiving rent from him. He also averred that the mortgage of the demised premises (shop) had been made contumaciously in favour of the Petitioner in order to eject him under that camouflage. It was undenied that the Petitioner was the sister in law of Parma Nand owner. Thus while raising plea of direct tenancy the alleged sub-tenant denied his liability to pay rent and pleaded the petition to be mala fide and collusive. On the pleadings of the parties, the following issues were framed by the Rent Controller:

Whether the relationship of landlord and tenant exists between the applicant and Respondent No 1. ?

Whether the Respondents are liable to be ejected on the ground mentioned in the application?

Whether the application is bad for non-joinder and misjoinder of parties ?

Whether the application is mala fide and collusive as alleged in preliminary objection No. 1 of the reply ?

Whether the Respondent No. 2 is entitled to special costs as provided u/s 35-A, CPC ?

Relief.

The Rent Controller decided issue Nos. 1, 2 and 4 against the Petitioner holding that she had failed to establish relationship of landlord and tenant between her and Duli Chand. He also decided issue Nos. 3 and 5 against Suraj Parkash, alleged sub tenant, with the finding that these were not pressed during the arguments. Pesultantly,(sic) the eviction petition was dismissed. On appeal before the Appellate Authority, Gurgaon, the Petitioner only confined herself to the question as to whether Duli Chand was her tenant and Suraj Parkash was the subtenant An off shoot of the question which arose automatically was whether Suraj Parkash was a direct tenant under Parma Nand. Thus the main and the ancillary questions which were raised before the Appellate Authority were answered against the Petitioner and it was held that Duli Chand was not the tenant of the Petitioner Now the Petitioner challenges that finding of the Appellate Authority.

At the outset, it eserves(sic) mention that the Petitioner practically coneded(sic) before the appellate Authority that if she failed to prove Duli Chand as her tenant, her alleged claim of sub-tenancy against Suraj Parkash would stand demolished. The learned Appellate Authority took the following factors into consideration in returning the finding against the Petitioner: -

(1) The tenancy in favour of Duli Chand was said to have been created on 1.8.1967 vide Exhibit A-3. Yet the name of the tenant remained conspicuously absent in the house tax registers Exhibits R 1 and R 2 relating to the year 1968-69 and 1969-70 respectively whereat the sub tenant was shown to be in possession of the shop where at he conducted business in the name and style of Sehgal Radios

(2) There was no allegation in the petition as to the time or the month of subletting of the shop by Duli Chand in favour of Suraj Parkash and this appeared to be deliberately done to make Suraj Parkash unable to prove his tenancy.

(3) The rate of rent being increased by Rs. 2/ per measum in the creation of sub tenancy from Rs 40/ to Rs 42/ was so insignificant that there was no reason for Duli Chand to have obtained the premises and then sublet it for a paltry profit of Rs. 2/ pec(sic) mensum in that light the Appellate Authority accepted the explanation of Suraj Parkash that he paid rent to Parma Nand through Duli Chand as the latter stood authorised for the purpose

(4) Duli Chand could not put on record electricity bills and water bills or other documents to show that he ever was in possession of the shop as a tenant.

(5) Duli Chand remained unaware as to who wrote Exhibit A-3 and there was a glaring discrepancy as to the scribe; whereas he referred the scribe as Piara Lal retired Head Master, the deed itself showed that it was written by Krishan Lal A.W.1 From this, it was concluded that Duli Chand was not the real tenant ; and

(6) Duli Chand failed to appear to contest the petition; rather he lent support to the Petitioner as A.W.3 indicating contumacy and collusion.

The learned Counsel for the Petitioner attempt to challenge the aforementioned factors which the Appellate Authority took into conitd(sic)-eration to non-suit the Petitioner. It was contended that Suraj Parkash had not been able to prove his tenancy under Parma Nand by the production of any rent receipt, rent note or otherwise. It was also contended that there was no reason for the Petitioner to have obtained the property in dispute under mortgage and to have played into the hands of Parma Nand while using Duli Chand as a tool to eject Suraj Parkash. It was also pointed out that if Duli Chand was not the tenant of the Petitioner but Suraj Parkash Respondent was, then in that case tender of arrears of rent should have been made to her at the first instance since she happend to be the landlady under the mortgage deed which fact was admitted by Suraj Parkash and not disputed. To challenge this reasoning, the learned Counsel for the Respondents replied that the Petitioner wanted to change the stance She had persisted before the Courts below and her petition had been dismissed as being mala fide on erecting an (sic) which had no foundation to rest-upon.

After hearing the learned Counsel for the parties and having examined the factors which weighted with the Appellate Authority in the light of the evidence existing on the record, I find no merit in the petition. The Appellate Authority was justified in taking the view on the evidence existing on the record, inference drawn therefrom and other surrounding circumstances to come to the conclusion that the tenancy created in favour of Duli Chand by the Petitioner was fake in order to cloud the existing tenancy of Suraj Parkash in favour of Parma Nand, her predecessor-in Interest. Had the Petitioner come with clean bands before the Rent Controller to claim Suraj Parkash as her direct tenant and had let the latter fight a cleansing battle, the view taken might perhaps have been different on the ground of the tenant being in arrears of rent What plea tat found tenant would have taken in the circumstances it not to be conceived in the present situation but the bona fide of the Petitioner towards the maintenance of the petition could well have been established On the findings of the Courts below and on the consideration of the material afore-referred to, it cannot be found or even inferred that there was ever an existing tenancy between Duli Chand and the Petitioner. And if that relationship could not be established before the courts below it is difficult to establish the same in this revision petition. No presumption in favour of continuity of such relationship can arise without its initial establishment.

As a result, this petition fails and is hereby dismissed without any order as to costs.