Sohan Singh and Others vs Janak Raj

Bhawani Singh, J.—This revision petition, u/s 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereafter for short ''the Rent Control Act''), is directed against the judgment of Appellate Authority, Chamba, in CMA No. 45 of 1986, dated 4-1-1989, whereby the order of eviction passed by the Rent Controller (I), Chamba, in rent case No. 3 of 1986, dated 10-3-1988, has been confirmed.

The eviction relates to a shop in the ground floor of Khasra No. 5625, situated in Ward No. 6, Sapri Bazar, Chamba Town. It was previously owned by Shrimati Champa Devi, who sold it to the landlord through her general power of attorney Shri Dujinder Raj Gupta on 14-5-1985. Tenants 1 to 4 were paying Rs. 7/- per month by way of rent from sometime in the year 1948. According to the landlord, they had sub-let the premises once to Hardit Singh, '' father of tenant-5, after 1972 without the written consent of the landlady -Champa Devi-and after his death to tenant-5, without the written consent of the landlady and the landlord. It has also been stated that tenants 1 to 4 are realising Rs. 50/- per month by way of rent from tenant-5 and due to the construction of a hearth in the premises without the written consent of the landlord, the utility and the value of the premises has been materially impaired. The claim for arrears after 1972 has also been made.

Through the joint reply, the tenants have admitted the title of the landlord. They have also admitted the rate of rent but have denied that the premises have been sub-let to tenant-5 from whom Rs. 50/- by way of rent are being charged. They say that Shrimati Champa, the previous landlady, filed a petition against tenants 1 to 4 on 1-3-1974 wherein they had taken the specific plea that Hardit Singh, who was their brother-in-law, was running the business in the capacity of partner and after the death of their father, Kahan Singh, Hardit Singh continued the business till his death on 18-12-1981 where after tenant-5 was employed at a monthly salary of Rs. 150/- but the petition was withdrawn by the landlady. They also say that in case it is proved that the premises were sub-let to Hardit Singh and his son, tenant-5, in that case, eviction order could not be passed since the tenancy was created prior to the commencement of the Rent Control Act. Finally, the claim for arrears of rent has been denied.

On the pleadings of the parties, the Rent Controller framed the following issues:

Whether Respondents 1 to 4 have sub-let the demised premises to Respondent No. 5, Balbir Singh, without the written consent of the landlord ? If so, to what effect? OPA.

Whether Respondents 1 to 4 are in arrears of rent from the year 1972 and if so, to what amount?OPA.

Whether the Respondents have materially impaired the utility and value of the demised premises by constructing a Bhathi (hearth) as alleged ?OPA.

Relief.

After allowing the parties to lead evidence and making submissions on the merits of the case, the Rent Controller decided all the issues, except issue No. 3, in favor of the landlord and ordered the eviction of the tenants on the ground of sub-letting and nonpayment of rent of Rs. 1092/-.

The matter came before the appellate Authority which also confirmed the findings relating to sub-letting of the premises, but modified the Rent Controller''s order as to the arrears of rent by holding that only Rs. 304.50 were payable. In this way, the order of abetment was upheld and the tenants were directed to hand over the vacant possession of the premises to the landlord within three months from the date of order. Again, the tenants have moved this revision petition thereby challenging the eviction order against them.

Learned Counsel for the parties made their respective submissions. Chhabil Dass, learned Counsel for the tenants, submitted for setting-aside the order of eviction, while Shri Bhupinder Gupta stated that in view of the concurrent. opinion of the two courts, there is no justification, in view of the evidence on the record of this case, to take a view different from the one already taken in this case. I proceed to examine this matter to see whether eviction order passed in this case is sustainable or deserves to be set-aside.

Learned Counsel for the tenants placed reliance on Gurcharan Singh and Others Vs. Shri V.K. Kaushal, and Dharam Pal Vs. Durga Dass, to submit that they could not be evicted from the premises in question since the sub-tenancy, if; at all created, pertains to the period before the commencement of the Rent Control Act, 1971. There is no substance in this submission.; The original landlady of the premises was Champa Devi, who got it from her father. Kahan Singh, father of tenants 1 to 4, got the premises on rent and Hardit Singh, brother-in-law of tenants 1 to 4 and father of tenants-5, was with him in the business but there is no; evidence of any partnership between the parties. Kahan Singh expired during 1964-65. However, Hardit Singh continued the business obviously not as a partner but as a sub-tenant. On his death in 1981-82, tenant-5 came into picture. Tenants 1 to 4 had settled in Tissa, a far-off place from Chamba Town. This contention finds place in the eviction petition (Ex. P-7) that was filed by the landlady for their eviction but was withdrawn on the basis of formal defect. But the evidence clearly points out that they are carrying on business in Tissa and have surrendered the legal possession in favor of tenant-5, who is in exclusive possession of the premises. The contention that tenant-5 is their employee at Rs. 150/- per month, is not established by cogent and convincing evidence. There is a document (Ex. AW5/A) which records the statement of tenant-5, once made to Field Kanungo on the application of Dujinder Raj Gupta, attorney of the previous landlady Champa Devi, that he had been put in possession of these premises by Jaswant Singh for the last about five years and he was not paying any rent to Champa Devi. The landlord also says that these premises were sub-let by tenants! to 4 to tenant-5 and they arc recovering Rs. 50/- per month as rent from him. Narinder Thakur (AW-3) also says that he was told by tenant-5 that the premises were with him at a monthly rent of Rs. 50/- from tenants 1 to 4. Similarly, Satinder Kumar (AW-4) also says that tenant-5 has been running a hotel in the demised premises for the last 7-8 years. Shreedhar (AW-6), Secretary, Municipal Committee, Chamba, states that tenant-5 had been holding license for the premises from the year 1980-81 to 1983-84 (Ex. AW 6/A to AW 6/C) and the license form dated 8-5-1987 (Ex. R-l) and application for the year 1971-72 (Ex. R-2) was in the name of Hardit Singh.

Tenant Jaswani (RW-1) has admitted that he pays Income Tax and sales-tax. However, he has not produced any record relating to the, transactions regarding this shop right from the beginning nor he has been able to show that tenant-5 is working as an employee and his father Hardit Singh had been the partner with their father Kahan Singh. He admits that he, along with other tenants, was residing and carrying on business at Tissa since long. Tenant-5, who could be a material witness in the case, has not appeared in the witness box to show his relationship with tenants 1 to 4.

From the evidence available on the record of this case, it is clear that the tenants have failed to establish that the sub-tenaney was created before the commencement of the Rent Control Act, 1971 (amended in 1987). It is, as a matter of fact, established from the evidence on record that the sub-tenancy was not only created in favor of Hardit Singh but also in favor of tenant-5 by tenants 1 to 4. The sub-tenancy created in favor of tenant-5 is quite independent of the one that was created in favor of Hardit Singh. This was done without the written consent of the landlady and the landlord around 1980-81.

The matter has been examined by two courts below quite exhaustively and the concurrent view taken by them is in accordance with the evidence in the case and there is no reason to differ with their findings in view of the evidence against the tenants.

No other point was urged by the learned Counsel appearing for the parties and the result of the aforesaid examination, therefore, is that there is no merit in this revision petition and the same is accordingly dismissed leaving the parties to bear their own costs.