Som Parkash vs Bansi Lal

Challenge has been thrown by way of this civil 1st. appeal against the judgement and decree passed by the learned District Judge, Rajouri on

10.4.87 whereby a decree for possession of suit shop and the recovery of Rs. 10,000/ as compensation for wrongful user of the shop has been

passed in favour of the respondentplaintiff against the appellant defendant.

The facts giving rise to the filing of this appeal are that the plaintiff filed a suit for possession of one shop situated in Ward No. 4, Rajourt owned

by him against the defendant and also for recovery of Rs. 10,000/ as compensation for the wrongful use and occupation of the shop with effect

from 13.5.81. The plaintiff alleged that he purchased the suit shop from one Sham Lal vide sale deed dated May 13,1981. According to him,

Sham Lal was carrying on the business of manufacturing Attachecase and Trunk in partnership with Bansi Lal son of Sh. Bindra Ban. The said

business came to an end on May 1st. 1981. Bansi Lal during the partnership had engaged defendant as his helper. Suit premises were vacated

when the partnership was cancelled. Defendant wrongfully occupied the suit premises without permission of Sham Lai. Plaintiff purchased the suit

shop on May 13, 1981, but defendant is continuing to occupy the shop without paying rent. Suit was resisted by the appellant on the ground that

the owner of the suit shop was Abnashi Kohli. Sham Lal was the only benami purchaser. Abnashi Kohli was not the State Subject. He was tenant

of Abnashi Kohli and was paying the rent of Rs. 150/ month to month to him through his son called Bhola (Ravinder Kumar. According to the

appellant, Sham Lal was not in picture. However, sale deed was executed by Sham Lal in the name of respondent and the consideration was paid

to Abnashi Kohli. Appellant continued to be tenant of the present owner and paid him rent. Present owner/respondent did not execute any receipt

and thereafter he refused to take rent and therefore, he wanted to eject him. On the pleading of the parties the following three issues were framed :

Whether the defendant is a tenant of the suit premises on behalf of the plaintiff ? If so, how? OPD.

In case issue No. 1 is held not proved, whether plaintiff is entitled to recover Rs. 10.000/ as compensation for use and occupation of the suit

shop from the defendant ? OPP.

Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, what is the proper valuation? OPD.

Defendant in support of his case has examined Narshi Lal DW1, Kewal Krishan DW2, Kesar Ram DW 3, Sushpal Sharma DW4, Anwar

Hussain DW5, ^al Chand DW6, Sham Lal DW7, Ravinder Kumar (Bhola) DW8, Ashok Kumar DW9, Gulshan Kumar DW10 as his witnesses.

Besides, defendant has also appeared as his witness. Plaintiff has examined Ashok Kumar PW1, Des Raj PW2, Lovely Gupta PW3, Lok Nath

PW4, Mohd Ramzan PW5, Abnsshi Ram PW6. Bansi Lal respondent has also appeared as his witness. Besides this, some documents were

produced in the shape of sale deed, partnership deed and affidavit.

After discussing that evidence the trial court has decreed the suit against which this appeal arises. Learned counsel for the appellant has

challenged the judgement and decree on the ground that the trial court has not appreciated the evidence led by the appellant in its right perspective,

though the appellant has proved first issue (hat he is tenant of plaintiff and continues to be so, but the conclusion of the trial court is different.

According to him, trial court has rejected the evidence of defendant on flimsy grounds.

Heard the learned counsel for the parties. I have gone through the whole evidence and given due consideration to the arguments advanced

before me. I am in full agreement with the learned counsel for the appellant that the evidence produced by the party has not been appreciated by

the trial court in the right manner. Though he has been fair enough to narrate the evidence but conclusions drawn by him are different and against

the record. Appellant has raised a plea that shop belonged to Abnashi Kohli and Sham Lal was the only benami purchaser. It was only Abnashi

kohli who was receiving the rent of his shop through his son (Bhola). DW1 says that he has seen the defendant running the shop of utencils for the

last five years. Witness a that time was working at the shop of Kesar Ram which is adjacent to the suit shop. Witness has confirmed that Bhola

was the owner of the suit shop. He does not know the name of his father. Defendant was paying the rent regularly to Bhola. Son of plaintiff was

laso the tenant of shop of Sham Lai. He too was paying rent to Bhola. He has stated that Rs. 150/ was being paid monthly rent by the appellant to

Bhola. Similarly DW2 who is brother of appellant has given a detailed statement and has confirmed that defendant was running the shop of utencils

for the last 8 years. He had taken the shop on rent from has Bhola @150/ Bhola is son of Abnashi Kohli. Bhola was executing the receipts for the

rent since 1979 to May 1981. Thereafter respondentplaintiff purchased the shop. Appellant was paying the rent regularly till December 1983 and

thereafter respondent refused to take rent and filed the suit. According to him, Bhola and his father were not state subjects so they purchased it in

the name of Sham Lai. DW3 has stated that he is running a shoemaking shop adjacent to the suit shop. Defendant is running utensils business in the

said shop from 5 to 7 years. Abnashi Kohli was the owner of the shop and at present plaintiff is the owner. Before defendant, suit shop was being

run by some Bansi Lal. Trial Court has rejected the statements of DWs No. 1 and 2 because defendant3 has stated that he does not know from

which place Abnashi hails and before the possession of defendant some Bansi was in possession of the shop. This is the ground on which first two

witnesses were disbelieved by the trial court without application of mind. When all the three witnesses confirmed that possession of suit shop

belonged to Abnashi and the appellant was paying the rent to him. DW4 has also stated that appellant is tenant of suit shop for the last 5 to 6

years. Abnashi Kohli was the owner of the suit shop. Bhola was the son of Abnashi Kholi who used to take rent from the appellant. In

crossexamination the witness has confirmed that he had gone to appellant with Bhola to receive the rent. DW5 has also substantiated the above

statement while deposing that appellant is tenant of suit shop. Rate of rent was Rs. 150/ per month. Respondent received the rent in his presence in

the month of September 1983. In the month of September 1983 he purchased utensils from the shop of appellant for the marriage of his sister.

Appellant paid Rs. 150/ as rent in his presence. No receipt was executed. His statement was also rejected by the trial court on flimsy ground.

DW6 is the shop keeper quite opposite to the suit shop. He has confirmed that appellant was running the suit shop for 8/9 years. Previously that

shop was being run by Mohd. Shafi Barbar. Before him some Bansi Lal was running the Attache shop who sold the same to present appellant. He

has further deposed that his shop was purchased by Abnashi Kohli from Balraj Shah. Abnashi Kohli purchased the suit shop in the name of Sham

Lal son of Des Raj Halwai. Appellant was paying the rent to plaintiff @1 SO/ per month in the presence of witness. He does not know whether

any receipt was executed.

I wonder what else the trial court needed from the appellant to prove issue No. 1. Sham Lal is DW7 who has sold the shop to respondent. He

has deposed that suit shop was purchased in his name by Abnashi Kholi. Abnashi Kholi was the actual owner of said shop. He was nonstate

subject. Abnashi Kholi purchased the shop from Balraj Shah. Abnashi Kholi paid consideration. He was the friend of witness's father so the shop

was purchased in his name. The witness has further deposed that he did not receive any rent from the appellant since he was in possession of the

shop, but Abnashi Kholi was the actual owner. He has further deposed that he received Rs. 20.000/ as consideration and paid to Abnashi Kholi at

the very moment and witness admitted before the SubRegistrar to have received Rs. 30,000/ which actually had been received by Abnashi Kholi.

DW8 is son of Abnashi Kholi. He has in unequivocal terms deposed that Balraj Shah was the owner of the shop. His father Abnashi Kholi

purchased the shop in the name of Sham Lal through he was not present at that time. It was told to him by his father. He has proved EXPW3 and

EXPW8 which are rent receipts signed by him. According to him, his father and Sham Lai's father were friends so Abnashi Kholi purchased the in

the name of Sham Lai. He is the person who was issuing receipts to appellant upto the time the suit shop was sold to present plaintiff. He has

admitted that his father has constructed his house at Rajouri. He has admitted that he was receiving month to month rent from the appellant and

was issuing receipts. Some minor contradictions here and there have been found by the trial court and it is very strange even his statement has not

been taken into consideration. DW9 has categorically stated that appellant is tenant of suit shop. He is running the utensils business and paying rent

of Rs. 150/ per month. He has categorically stated that he has seen paying rent 5/6 times in the year 1981. In crossexamination he has deposed

that his master of the shop where he was working was also a tenant of the shop. He is servant of Gulshan Kumar. Gulshan Kumar DW10 is the

son of first owner of suit shop from whom Abnashi Kholi had purchased. Witness has categorically stated that his father sold the shop to Abnashi

Kholi. Abnashi Kholi sold the shop to respondent. In crossexamination he has stated that he does not know when the shop was sold to Abnashi

Kholi. He is the important witness. Defendant has come in the witness box. He has proved issue No. 1 by saying that he is in possession of suit

shop as tenant since December 1977. Bhola son of Abnashi Kohli used to receive rent. Son of respondent was also a tenant of another shop. He

also used to pay rent to Bhola. Sale deed was executed in the name of Sham Lal Bali. After respondent purchased the shop in 1981, appellant

was paying to him also Rs. 150/ till December 1983, but he did not issue any receipt. His statement has been rejected on the ground that in written

statement he has deposed that he was paying the rent to Abnashi Kholi, but here he has deposed that he was paying the rent to Bhola son of

Abnashi Kholi. In rebuttal, plaintiffs witness PW1 has only stated that before the appellant's possession of the shop, it was in possession of some

Bansi Lal son of Bindra Ban. Thereafter defendant came to occupy it.

PW2 has stated that plaintiff has purchased the shop from Balraj Shah. Respondent asked the appellant to vacate the shop and appellant

promised to vacate it after 2/3 months. P W3 has stuck to this statement that respondent asked the plaintiff to vacate the shop. Plaintiff promised

to vacate it after 2/3 months. PW4 is the Notary who has attested the affidavit. PW5 is Abnashi Kholi. He has denied that shop belonged to him

and has denied that he had purchased the shop in the name of Sham Lai. He has admitted that his son is Bhola. In crossexamination he has

admitted that piror to 1947, he was residing in Mirpur. Basically he is resident of Punjab which us now in Pakistan. He has denied to have

purchased any house in Rajouri which consisted of a suit shop. He has identified the signatures of his son Bhola on exhibit EXD3, EXD6 and

EXD7. He has admitted in crossexamination that he has constructed a house which belong to him. He occupied the house constructed through

Balraj Shah. No deed was executed regarding the plot. Respondent Bansi Lal has come in the witness box. He has deposed that appellant is

occupying the shop without his consent. He has admitted in crossexamination that when he purchased the building the suit shop was already in the

occupation of appellant. He has shown ignorance whether his son also is tenant of one of the shops and whether his son was paying rent to Bhola

son of Abnashi. He has admitted that appellant was also in possession of the shop and was working with Bansi Lal. In what capacity he was

working with Bansi Lal he does not know. There is overwhelming evidence regarding this issue that the actual owner of suit shop was Abnashi

Kholi who had purchased it in the name of Sham Lai. This fact has been accepted by Sham Lal and by Bhola son of Abnashi Kholi also. It has

also been proved that appellant was already in possession when the shop was sold to present respondent. Sufficient evidence is on record to

prove that rent was being paid by appellant to previous landlord Abnashi Kholi through his son Bhola and after respondent purchased it, he was

paying the rent to respondent also. I wonder how different conclusion have been drawn by the trial court and how suit has been decreed. I fail to

understand as to what better evidence could have been produced in favour of present appellant, to prove that he was the tenant and he was

continuing to be as such of the suit shop. Learned counsel has banked upon that the reply of notice given by the appellant was vague. He has

depended upon the appellant was vague. He has depended upon the affidavit given by Sham Lai. These things do not matter before the evidence

which stands tested by crossexamination.

Learned counsel for the respondent has vehemently urged before me that no lease deed has been produced nor defendant has proved that the

lease deed was ever registered. Secondly, he has contended that no witness of appellant has stated that suit shop was purchased by Abnashi Kholi

in his presence. So Abnashi Kholi cannot be treated as owner, but it was Sham Lal who was the proprietor of the suit shop. Appellant never

claimed to be his tenant. So far as first argument is concerned, I agree with the learned counsel for the appellant that no written lease deed is

necessary if it is from month to month. Section 107 of the Transfer of Property Act envisages lease of immoveable property for any term exceeding

one year and reserving the yearly rent exceeding Rs. 50/ can be made only by registered instrument. It has further been envisaged that all other

leases of immoveable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession. So the

lease deed can be by oral agreement also, but by delivery of possession. So the lease deed can be by oral agreement, but by delivery of

possession. If the tenancy is month to month, there is no need to write lease deed. If the rent is accepted by the landlord that strongly shows the

relationship of landlord and tenant. This view is fortified by catena of judgements. However, in Lala Babu Lal vs. Jugla Saran (AIR 1958

Allahabad 32) it has been held that:

Where the lease was neither from year to year nor did it reserve an yearly rent and it was also not for a term exceeding one year, Sec. 107 has no

application and lease from month to month made orally with delivery of possession would be perfectly legitimate form of making a lease.

This view has further been fortified by Gordhan vs. Ali Bux (AIR 1981 Rajasthan 206) wherein it has been held that :

Lease for a period of one yearfalls within the expression ""all other leases"" can be entered into by oral agreement accompanied by deliverly of

possession.

Here in this case it has amply been proved that the rent was being paid month to month and the same was being paid to Bhola Ram who is the

son of the landlord and who issued rent receipts in favour of the appellant. It is sufficiently proved that the appellant was paying rent of Rs. 150/

per month to the landlord through his son. All the witnesses of the appellant with one voice proved that the rent was being paid by the appellant.

Even the son of landlord has come to the witness box and has admitted that he was receiving the rent from the appellant. This shows that the

relationship of landlord and tenant has been proved very strongly by all the witnesses of the appellant and all the witnesses have deposed that in

their presence the defendant has paid rent to the landlord through his son Bhola Ram.

I have already stated that there is overwhelming evidence that Abnashi Kohli is nonstate subject, this fact has also been admitted by him in his

crossexamination that he has denied to have purchased the suit property is not too important in the case, because Abnashi Kohli once admitted to

be resident of Pakistan (Pubjab) he could not admit to have purchased the property in the State of J and K which could culminate in criminal

proceedings against him. But nevertheless he has admitted that he was not State subject. Sham Lal has admitted that property belongs to Abnashi

Kholi. He has no concern with the property. When he sole the property to the respondent, consideration was given to Abnashi Kohli. This fact has

been ad mitted by son of Abnashi Kohli. He too has admitted that his father had purchased in the name of Sham Lal being friend of his father. All

the witnesses with one voice have supported this version. Apart from this, it is not necessary under the Houses and Shops Rent Control Act that

the landlord should be the owner. Landlord under subsec. (4) of Sec.2 is defined as landlord a person who for the time being is receiving the rent

of any house or shop from the tenant thereof and includes any person who is entitled to bring suit for. It is not necessary that the landlord should be

owner of the property. If that is to be proved then specific issue has to be framed for that. However, in this case, it has amply been proved that

Abnashi Kohli was the owner. Even if it is stated that he is not the legal owner, but he cannot be denied to be the landlord. He was receiving the

rent through his son. Not only from the appellant, but even from the son of respondent who too was tenant of another shop in the same building.

It is squarely proved that relationship of tenant and landlord existed between the appellant and Abnashi Kohli which continued to be so after

the shop was purchased by the present respondent. It is also proved that the present respondent accepted the rent for sometime from the appellant

as eye witnesses have said so that in their presence he received the rent. There is not an iota of evidence on the record that the appellant took the

possession of the shop forcibly nor be surrendered it peacefully u/s III of Transfer of Property Act. Even respondent has admitted the possession

of appellant before he purchased the shop, but has contended that he was a helper to one Bansi Lal who was a tenant. This fact has not been

proved, but the fact which actually has been proved is that the appellant was a tenant. He was paying the rent and their relationship of tenant and

landlord existed before the ownership of suit shop was transfered to respondent. I agree with the counsel for the appellant that the respondent's

plea that appellant wrongfully occupied the shop is only to deprive the appellant from the protection provided to him u/s II of the Houses and Shop

Rent Control Act. Once the appellant is declared to be a tenant, he is entitled to all protection under the J and K Houses and Shops Rent Control

Act. The fact is also substantiated by another act of the respondent that during the pendency of the appeal, he has filed application u/s 12(4) of

Houses and Shops Rent Control Act seeking direction from the court in the name of appellant to deposit the rent and this was allowed. This ""also

shows that the appellant has always been treated as tenant, but the suit has been adroitly instituted in this farm to deprive the appellant of protection

of section II of Houses and Shops Rent Control Act.

For these reasons, the appeal is allowed. The judgement and decree passed by the learned District Judge, Rajouri on 10.4.87 is setaside.