Judgment:
M.M. Kumar, J.
1. This is tenants petition filed under-Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity 'the Act') chal-lenging concurrent findings of facts recorded by both the Courts below holding that the tenant-petitioner No. 1 has handed over exclusive possession of the demised shop to sub tenant-petitioner No. 2 Ruldu Ram who is his brother.
2. A perusal of paras 10 and 11 of the judgment of the Rent Controller dated 12.10.1999 and para 11 of the judgment of the Appellate Authority would make it evi- dent that there is cogent evidence on record adduced by the landlord-respondent show ing that the tenant-petitioner has parted with exclusive possession of the demised shop and that he has opened his own business in the same area at a distance of about 15 mts. under the name and style as Pappu Cycle Stores. In support of the conclusion both the Courts below have accepted that Ruldu had got installed a telephone No. 62656 in his own name at the demised shop on 28.5.1994 and it was installed in pursuance to an ap plication tiled by Ruldu Ram on 28.5.1993. The possession of sub tenant-petitioner No. 2 Ruldu Ram is further established from the municipal record as proved by Mukhtiar Singh, PW2 JE Municipal Council, Samrala who exhibited the revenue register Ex.P1. in respect of the year 1986-87 and the position is the same in respect of earlier years i.e. 1979-80 and 1980 to 1983. It is further revealed that Ruldu Ram, sub tenant-petitioner No. 2 has been recorded as a tenant under the landlord-respondent Lachhman Singh @ Rs. 192/- The position is the same in respect of the years 1989-90 and 1992-93. It is thus evident that there is over-whelming evidence on record to prove exclusive posses sion of Ruldu Ram, sub-tenant petitioner No. 2.
3. The stand of the tenant-petitioner No. 1 has throughout been that he has been working alongwith Ruldu Ram sub tenant-petitioner No.2 in the demised shop and there was specific permission given by the landlord-respondent to Ruldu Ram to carry on business with his brother tenant-petitioner No. 1. It is also projected stand of the tenant- petitioner No. 1 that Pappu Cycle Stores is run by the son of the tenant-petitioner No. 1 Kesar Chand and not by Kesar Chand himself. The findings of the Appellate Authority recorded after critical and detailed examination of the evidence in para 11 reads as under :-
' Thus from testimony of this witness and official record produced by himRuldu Ram being in exclusive possession of the shop in dispute stands established. Although Shri Sehgal argued that in this record Ruldu Ram is shown to be tenant under Lachhman Singh but then in the written statement no plea has been taken that the shop in dispute had been taken on rent by Ruldu Ram, directly from Lachhman Singh, or that he had been paying rent to Lachhman Singh. Therefore, Ruldu Ram being reflected as tenant in the municipal record does not help the case of appellants in any way. PW3 Nazar Singh Clerk Sales Tax Department, Ludhiana brought the summoned record of M/s Kesar Chand, Ruldu Ram, Chandigarh Road, Samrala statiiig the Ruldu Ram is mentioned as sole proprietor of M/s Kesar Chand Ruldu Ram, Chandigarh Road, Samrala. R.O. No. 55507314 stating that sale tax Number was issued on application of Ruldu Ram dated 18.5.1987. Although in his cross-examination he stated that in the application dated 2.4.1987 Ruldu Ram has mentioned that he is working in this shop for the last 20 years and ir. the affidavit submitted on 22.4.1987 he has mentioned that he is working in the shop for the last 20 years as tenant under Lachhman Singh at rate of Rs. 160 per month but that already discussed above, this is not the case of respondent in their written reply. The law is well settled that a fact should be first pleaded and then proved and any evidence led beyond the pleadings is not worth the paper on which it is written. Therefore, in this case non-examination of any neighbour and non summoning of account books of the sub tenant is not very material, considering the extreme nature and type of evidence adduced by the petitioner.'
4. Mr. M.L.Saggar, learned counsel for the tenant-petitioner has argued that if refer ence is made to the statement of Lachhman Singh landlord-respondent, then it would be come evident that the shop was handed over to Ruldu Ram after one month of the exe cution of the rent note on 19.9.1960. The learned counsel has, thus, argued that the find ings recorded by both the Courts below are perverse because no plea of subletting could be set up by the landlord-respondent after such a long time by filing an application for ejectment in the year 1997. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Om Parkash v. Kailash Chan- der,1 2000(1) S.L.J. 435 and Radhey Shyam and another v. Vimati Lal and another,2 2002(2) R.C.R. 74 and argued that the plea of subletting cannot be set up after an inor dinate delay of 37 years.
5. Mr. Yashwinder Pal Singh, learned counsel for the landlord-respondent has argued that the case of tenant-petitioner 1 through-out has been that he in fact is the tenant in occupation of the demised shop and has not parted with exclusive possession of it in fa vour of Ruldu Ram. It has been claimed by the tenant-petitioner that he is working with Ruldu Ram. The statement made by Lachhman Singh cannot be used to upset the find ings of facts recorded by both the Courts below on the question of exclusive possession which has been established by cogent evidence. The tenant-petitioner 1 has handed over exclusive possession to his brother Ruldu Ram who is a sub-tenant without the consent of landlord-respondent.
6. After hearing the learned counsel for the parties, I am of the considered view that the concurrent findings of facts recorded by both the Courts below show that tenant-pe titioner No. 1 has handed over the demised shop to his brother sub tenant-petitioner No. 2 Ruldu Ram without the consent of the landlord-respondent. There is no stipulation in the rent note showing that tenancy was created in favour of tenant-petitioner No. 1 and sub tenant-petitioner No. 2. It has further been established that tenant-petitioner No. 1 in- fact is running another shop known as Pappu Cycle Stores and has parted with exclusive possession of the demised shop. It is well settled that once the tenant has parted with ex clusive possession of a tenanted premises then a reasonable inference arises with regard to consideration and the payment of rent. Such like agreement between tenant-petitioner No. 1 and sub tenant-petitioner No. 2 is always a secret arrangement executed at the back of the landlord-respondent, there is cogent evidence on record to sustain the findings and it cannot be said that the view taken by the Courts below suffers from such a per versity that no reasonable person would take the afore-mentioned view or that it is not based on any evidence. Therefore, the findings recorded by the Courts below do not warrant interference by this Court in the exercise of its revisional jurisdiction under Sec tion 15(5) of the Act.
7. The argument of the learned counsel based on the judgment of this Court in Om Parkash ($upra) and Radhey Sham's Case (supra) would not require any detailed consid eration because in the present case the stand of the tenant-petitioner No. 1 has never been that he has handed over the possession to the tenant-petitioner No. 2 immediately after taking the demised shop on rent. A perusal of para 2 of the order of the Rent Controller would show the stand of the tenant-petitioner which reads as under:-
'Notice of this petition was given to the respondents, who appeared and filed written reply stating therein that they had taken the shop in dispute on rent at the rate of Rs. 16/- per month and started the cycle repair and sale business under the name and style of M/s Kesar Chand-Ruldu Ram Cycle Dealers, Chandigarh Road, Samrala. That both the brothers have been working in the shop in dispute and the rent has been paid regularly and the petitioner never objected to the working of Ruldu Ram in the premises in dispute. It was further submitted that respondent No. 2 has been working in the premises in dispute from the inception of tenancy and non-objection by the petitioner amounts to a permission and a consent by him and the shop in dispute was taken on rent with the undertaking that both the brothers will work together and have been as such working together till to date and denied all other averments of the petitioner and has prayed that petition be dismissed with costs.'
8. In the case of Radhey Sham (supra) no objection by the landlord-respondent was raised with regard to the sub tenancy for about 40 years and there was no stand of the tenant that the tenancy is either joint or he has not handed over the vacant possession to the sub tenant. The facts are even otherwise entirely different and would not govern the issue raised in the instant petition. Similarly is the position in Om Parkash's case (supra). Therefore, the argument raised by the learned counsel for the tenant petitioner is devoid of any merit and the same is rejected.
9. The question whether there has been delay in raising the objection to the sub let ting is a pure question of fact which is to be determined on the basis of pleadings and evidence. In the present case there is neither any case pleaded nor any evidence to sub stantiate the plea that tenant-petitioner No. 1 had handed over exclusive possession of the demised shop to sub tenant-petitioner No. 2 immediately after the commencement of the tenancy. No such plea can be raised before this Court in the absence of any pleadings, issue and evidence. Therefore, I have no hesitation to reject the submission made by the learned counsel.
10. For the reasons stated above, this petition fails and the same is dismissed. The tenant-petitioners are allowed three months time from today to hand over vacant posses sion of the demised shop to the landlord-respondent. Let an undertaking to this effect be filed by the tenant-petitioner within four weeks from today failing which the landlord- respondent shall be entitled to execute the order of ejectment against the tenant-petitioners.
11. Copy of the order be given dasti on payment of usual charges.