Shri Brij Bhusan Vs. Ram Singh and ors. - Court Judgment

Excerpt:
- orderh.s. bedi, j.1. the present petition is directed against order of the appellate authority under the haryana urban (control of rent and eviction) act, 1973, by which the ejectment of the petitioner, who is alleged to be a sub-tenant in the demised promisses, has been ordered.2. the facts giving rise to the petition here are as under:- respondent no. 1 ram singh verma, who is owner of the shop in dispute, filed an ejectment application against the alleged tenant kishan chand bansal, who is stated to have been inducted as tenant on 1.12.1972, on two grounds: (i) that the tenant had not paid rent for the period from 1.4:1975 onwards (ii) that the shop had been sub-let by krishan chand bansal respondent no. 1 to the present petitioner, brij bhushan, without his consent.3. the respondents filed two separate written statements in the court of the rent controller, wherein kishan chand bansal admitted that he had taken the shop on rent but at the same time pleaded that he had vacated the premises and restored the possession to the owner, who had himself locked the shop in question and as such he did not know in what circumstances respondent brij bhushan happened to enter into possession of the said shop. the petitioner, herein, in his written statement denied that the shop was sub-let to him by kishan chand bansal but claimed that the same had been given to him by the landlord himself on rent with effect from 6.1.72 at the rent of rs. 40/- per month and further that he had already paid the rent for the period upto july 1978 and was willing to pay the rent for the remaining period.4. the following issues were framed by the rent controller:-1) whether the petitioner rented out the suit property to respondent no. 1 as alleged opp2) if issue no. 1 is proved, as to whether respondent no. 1 has sublet the suit property to respondent no. 1 as alleged. if so, to what effect? opp3) if issue no. 1 and 2 are proved, whether the respondents are liable to ejectment on the grounds mentioned in the petition ?opp4) whether respondent no. 2 is a tenant under the petitioner as alleged, if so, on what terms and conditions ?opp5) whether the tenancy of respondent no. 1 has been terminated validly. if not to what effect? opp6) whether the present petition is collusive between the petitioner and respondent no. 1 as alleged? if so, to what effect? opr-27) whether the tenancy of respondent no. 2 has not been terminated as alleged? if so, to what effect? opr-28) whether the present application is not in accordance with rule as alleged? if so, to what effect opr-29) whether the present petition does not disclose cause of action against respondent no. 2 as alleged opr-210) whether the present petition is collusive between petitioner and respondent no. 2 as alleged opr-111) relief.5. the rent controller on a consideration of the evidence led before him, found that the landlord had let out the shop in question to kishan chand bansal, who was no longer in its occupation. he further held that the present petitioner, brij bhushan was also not a tenant directly inducted by the, landlord as claimed by him or that the shop had been sub-let by kishan chand. he, in fact, recorded a finding that it was not clear as to the capacity under which brij bhushan petitioner was holding the premises in dispute and accordingly dismissed the ejectment application.6. the landlord thereafter filed an appeal before the appellate authority and the same having been allowed the present petition has been filed.7. before the appellate authority, it was argued on behalf of the landlord that the finding of the rent controller that the shop had not been sublet by kishan chand bansal to brij bhushan was contrary to the evidence and further that as the rent for the period claimed by the landlord had already been admitted to have been paid by the petitioner, he was liable to succeed. the appellate authority accordingly reappraised the evidence and confirmed the finding of the rent controller that the shop had been let out to kishan chand bansal on 1.12.1972., but as possession had been restored by him to the landlord, the statuts of brij bhushan petitioner was uncertain, the appeal was to be allowed. the appellate authority also found that the rent upto 31.3.1975 had been paid and for recording the conclusion aforesaid, relied upon the receipts ex. p-3 to p-9 by which rent had been paid by kishan chand bansal.8. mr. arun jain, learned counsel for the petitioner has argued that it was not for the rent controller to find out as to in which capacity brij bhushan, the petitioner, was holding on to the demised premises as it was for the landlord himself to prove his case by independent evidence on his own strength. he has urged that even assuming that the plea of the petitioner in the written statement that he was in possession of the premises in his independent right with effect from 1.12.1972 was not believable, yet the benefit of this evidence cannot be taken by the landlord as it was for him to prove his case beyond doubt.9. on the contrary, mr. m.l. sarin, learned counsel for the respondent landlord has urged that the findings of the appellate authority are not to be interfered with at the revisional stage and for this, placed reliance on sri rajalakshmi dyeing works and ors. v. ranga swamy chettier, air 1980 s.c. 1253 and khalil ahmed bashir ahmed v. tufelhussein samasbhai, a.i.r. 1988 s.c. 184. he has further urged that the evidence on record overwhelmingly showed that the premises in dispute had been sublet by kishan chand bansal and the plea of brij bhushan petitioner that he was holding the demised premises on his own right, did not find support from any evidence whatsoever.10. i have heard the learned counsel for the parties on the matter and gone through the record and i find that there is no merit in the petition.11. it is true that the scope of this court's interference in findings of fact is somewhat limited and the court should reappraise the evidence and record a contrary finding only in cases where the findings are perverse and cannot be recorded on evidence led in the case. this has been held in the decisions of the supreme court, referred to above, the finding of fact recorded in the present case, however, do not warrant any interference. it is to be noted that kishan chand bansal has admittedly restored the possession of the shop in question to the landlord, although there is a dispute as to the year in which this was done. on the other hand, the petitioner, who is alleged to have been a sub-tenant from 6.1.1972. while the creation of tenancy in favour of kishan chand bansal finds some evidence in the shape of receipts ex. p.3 to p-9, yet the very first document on which some reliance can be placed by the petitioner are ex. r-l and r-2 which are licences under the shops & commercial establishments act, for the year 1974, the other document on which some reliance could be placed by the petitioner was the record of the electricity board for the year 1976, wherein as electric connection has been granted to the petitioner. it is, therefore, apparent that for the period 1972 to 1974 when the petitioner was stated to be tenant on his own right, there is no evidence on record to show his status. i also agree with the finding recorded by the appellate authority that had the petitioner been inducted as tenant under the landlord, there ought to have been some document executed to that effect. it is, therefore, apparent that the case of the petitioner rests solely and virtually on oral testimony of his witnesses.12. mr. arun jain, learned counsel for the petitioner further urged that the case of the landlord should stand on its own footing and he could not take any benefit of any lapse on the part of the petitioner. this argument is without merit. once the petitioner had taken a positive stand that he had been inducted as a tenant, in his own right by the landlord, and that having been disproved, there was no further onus left on the landlord himself to show the nature of the possession of the petitioner.13. for the reasons recorded above, there is no force in the petition and the same is dismissed as such with no orders as to costs. on the request of mr. jain, the petitioner is granted three months' time to vacate the premises, provided he files an undertaking before the rent controller to do so on the expiry of three months and further that he clears all the arrears of rent and to pay rent in advance for three months within a period of one month from today.

Judgment:
ORDER

H.S. Bedi, J.

1. The present petition is directed against order of the Appellate Authority under the Haryana Urban (Control of Rent and Eviction) Act, 1973, by which the ejectment of the petitioner, who is alleged to be a sub-tenant in the demised promisses, has been ordered.

2. The facts giving rise to the petition here are as under:- Respondent No. 1 Ram Singh Verma, who is owner of the shop in dispute, filed an ejectment application against the alleged tenant Kishan Chand Bansal, who is stated to have been inducted as tenant on 1.12.1972, on two grounds: (i) that the tenant had not paid rent for the period from 1.4:1975 onwards (ii) that the shop had been sub-let by Krishan Chand Bansal respondent No. 1 to the present petitioner, Brij Bhushan, without his consent.

3. The respondents filed two separate written statements in the court of the Rent Controller, wherein Kishan Chand Bansal admitted that he had taken the shop on rent but at the same time pleaded that he had vacated the premises and restored the possession to the owner, who had himself locked the shop in question and as such he did not know in what circumstances respondent Brij Bhushan happened to enter into possession of the said shop. The petitioner, herein, in his written statement denied that the shop was sub-let to him by Kishan Chand Bansal but claimed that the same had been given to him by the landlord himself on rent with effect from 6.1.72 at the rent of Rs. 40/- per month and further that he had already paid the rent for the period upto July 1978 and was willing to pay the rent for the remaining period.

4. The following issues were framed by the Rent Controller:-

1) Whether the petitioner rented out the suit property to respondent No. 1 as alleged OPP

2) If issue No. 1 is proved, as to whether respondent No. 1 has sublet the suit property to respondent No. 1 as alleged. If so, to what effect? OPP

3) If issue No. 1 and 2 are proved, whether the respondents are liable to ejectment on the grounds mentioned in the petition ?OPP

4) Whether respondent No. 2 is a tenant under the petitioner as alleged, if so, on what terms and conditions ?OPP

5) Whether the tenancy of respondent No. 1 has been terminated validly. If not to what effect? OPP

6) Whether the present petition is collusive between the petitioner and respondent No. 1 as alleged? If so, to what effect? OPR-2

7) Whether the tenancy of respondent No. 2 has not been terminated as alleged? If so, to what effect? OPR-2

8) Whether the present application is not in accordance with rule as alleged? If so, to what effect OPR-2

9) Whether the present petition does not disclose cause of action against respondent No. 2 as alleged OPR-2

10) Whether the present petition is collusive between petitioner and respondent No. 2 as alleged OPR-1

11) Relief.

5. The Rent Controller on a consideration of the evidence led before him, found that the landlord had let out the shop in question to Kishan Chand Bansal, who was no longer in its occupation. He further held that the present petitioner, Brij Bhushan was also not a tenant directly inducted by the, landlord as claimed by him or that the shop had been sub-let by Kishan Chand. He, in fact, recorded a finding that it was not clear as to the capacity under which Brij Bhushan petitioner was holding the premises in dispute and accordingly dismissed the ejectment application.

6. The landlord thereafter filed an appeal before the Appellate Authority and the same having been allowed the present petition has been filed.

7. Before the Appellate Authority, it was argued on behalf of the landlord that the finding of the Rent Controller that the shop had not been sublet by Kishan Chand Bansal to Brij Bhushan was contrary to the evidence and further that as the rent for the period claimed by the landlord had already been admitted to have been paid by the petitioner, he was liable to succeed. The Appellate Authority accordingly reappraised the evidence and confirmed the finding of the Rent Controller that the shop had been let out to Kishan Chand Bansal on 1.12.1972., but as possession had been restored by him to the landlord, the statuts of Brij Bhushan petitioner was uncertain, the appeal was to be allowed. The appellate Authority also found that the rent upto 31.3.1975 had been paid and for recording the conclusion aforesaid, relied upon the receipts Ex. P-3 to P-9 by which rent had been paid by Kishan Chand Bansal.

8. Mr. Arun Jain, learned counsel for the petitioner has argued that it was not for the Rent Controller to find out as to in which capacity Brij Bhushan, the petitioner, was holding on to the demised premises as it was for the landlord himself to prove his case by independent evidence on his own strength. He has urged that even assuming that the plea of the petitioner in the written statement that he was in possession of the premises in his independent right with effect from 1.12.1972 was not believable, yet the benefit of this evidence cannot be taken by the landlord as it was for him to prove his case beyond doubt.

9. On the contrary, Mr. M.L. Sarin, learned counsel for the respondent landlord has urged that the findings of the Appellate Authority are not to be interfered with at the revisional stage and for this, placed reliance on Sri Rajalakshmi Dyeing Works and Ors. v. Ranga Swamy Chettier, AIR 1980 S.C. 1253 and Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai, A.I.R. 1988 S.C. 184. He has further urged that the evidence on record overwhelmingly showed that the premises in dispute had been sublet by Kishan Chand Bansal and the plea of Brij Bhushan petitioner that he was holding the demised premises on his own right, did not find support from any evidence whatsoever.

10. I have heard the learned counsel for the parties on the matter and gone through the record and I find that there is no merit in the petition.

11. It is true that the scope of this Court's interference in findings of fact is somewhat limited and the Court should reappraise the evidence and record a contrary finding only in cases where the findings are perverse and cannot be recorded on evidence led in the case. This has been held in the decisions of the Supreme Court, referred to above, the finding of fact recorded in the present case, however, do not warrant any interference. It is to be noted that Kishan Chand Bansal has admittedly restored the possession of the shop in question to the landlord, although there is a dispute as to the year in which this was done. On the other hand, the petitioner, who is alleged to have been a sub-tenant from 6.1.1972. While the creation of tenancy in favour of Kishan Chand Bansal finds some evidence in the shape of receipts Ex. P.3 to P-9, yet the very first document on which some reliance can be placed by the petitioner are Ex. R-l and R-2 which are licences under the Shops & Commercial Establishments Act, for the Year 1974, the other document on which some reliance could be placed by the petitioner was the record of the Electricity Board for the year 1976, wherein as electric connection has been granted to the petitioner. It is, therefore, apparent that for the period 1972 to 1974 when the petitioner was stated to be tenant on his own right, there is no evidence on record to show his status. I also agree with the finding recorded by the Appellate Authority that had the petitioner been inducted as tenant under the landlord, there ought to have been some document executed to that effect. It is, therefore, apparent that the case of the petitioner rests solely and virtually on oral testimony of his witnesses.

12. Mr. Arun Jain, learned counsel for the petitioner further urged that the case of the landlord should stand on its own footing and he could not take any benefit of any lapse on the part of the petitioner. This argument is without merit. Once the petitioner had taken a positive stand that he had been inducted as a tenant, in his own right by the landlord, and that having been disproved, there was no further onus left on the landlord himself to show the nature of the possession of the petitioner.

13. For the reasons recorded above, there is no force in the petition and the same is dismissed as such with no orders as to costs. On the request of Mr. Jain, the petitioner is granted three months' time to vacate the premises, provided he files an undertaking before the Rent Controller to do so on the expiry of three months and further that he clears all the arrears of rent and to pay rent in advance for three months within a period of one month from today.