Badri Nath Garg v. Sheo Prasad Tandon — 1989 DIGILAW 851 (ALL)

JUDGMENT A.N. Dikshita, J. - The instant revision under Section 25 of the Provincial Small Causes Courts Act has been filed by the applicant against the judgment and order dated 22nd of January, 1985, passed by Sri D.C. Srivastava, IV Additional District Judge, Kanpur in S.C.C. Suit No. 56 of 1983, decreeing the suit for the ejectment of the applicant from the suit accommodation and for recovery of Rs. 1324 as arrears of rent and taxes at the old rate Rs. 400 as enhanced water tax and sewage tax and for Rs. 212.50 per month for wrongful use and occupation with effect from 8.3.83 to 30.4.1984, besides future damages for such wrongful occupation. 2. The facts encompassing the controversy are that the opposite party filed a suit against the applicant and the plaint allegations reveal that opposite party, landlord is the owner of house No. 43/66, Chowk, Kanpur. The applicant was a tenant of the suit accommodation at the rate of Rs. 212.50 per month including water tax. Earlier the rate was alleged to Rs. 200 per month. The suit accommodation comprises of the entire basement and one room on the ground floor. It was alleged by the opposite party that the applicant fell in arrears of rent with effect from 1.9.1982 and inspite of repeated demand failed to pay enhanced water tax and sewage tax with effect from 1.4.1981. It was further alleged by the opposite party that (Badri Nath Garg) has sub-let the accommodation to Kailash Nath Garg who is not his family member. It was also alleged that Kailash Nath Garg is carrying on business in the name and style of "M/s Adarsh Pustak Bhandar" in the suit accommodation. The opposite party sent a notice dated 4.2.1983 demanding arrears of rent and other accrued dues. The opposite party by the said notice terminated the tenancy of the applicant, who was called upon to vacate the accommodation in his tenancy and occupation. It was further alleged that the notice was personally served on the applicant, but inspite of the service of the notice the applicant neither complied with the requirements of the notice nor even replied to it. 3. In view of these allegations the suit was accordingly filed. 4. The applicant contested the suit raising various pleas. Allegation regarding refusal to pay the rent was specifically denied. 3. In view of these allegations the suit was accordingly filed. 4. The applicant contested the suit raising various pleas. Allegation regarding refusal to pay the rent was specifically denied. As regards allegation of sub-letting having been done by the applicant in favour of Kailash Nath Garg, it was specifically alleged that the applicant alone is not the sole tenant as the suit accommodation was taken for the joint family Firm of which the applicant alongwith three other brothers are the co-parceners of the joint Family Firm. The suit was, thus alleged to be bad for non-joinder of necessary parties that is other brothers of joint Hindu Family Firm. Further the allegation regarding the creation of sub-tenancy by the applicant in favour of Kailash Nath Garg was vehemently denied and it was strenuously contended that the suit accommodation was taken for the family business, which is being carried on. 5. It is pertinent to mention here that Kailash Nath Garg is the real brother of the applicant Badri Nath Garg. The validity of the notice was further challenged. 6. The replication on behalf of the opposite party was filed denying the allegations as contained on the written statement and reiterating the plaint allegations. 7. On the basis of the pleadings of the parties the trial Court framed the following issues :- 1. Whether the defendant was in arrears of rent as alleged ? Whether the defendant is a defaulter ? 2. Whether the defendant was liable to pay increased water tax and sewage tax as alleged in para 3 of the plaint ? 3. Whether the defendant has sublet the premises to Shri Kailash Nath Garg as alleged in para 4 of the plaint ? If so its effect ? 4. Whether the defendant was tenant as member of Joint Hindu Family as alleged in para 4 of the written statement ? Whether the rent has been paid by the HUF ? If so, its effect ? 5. Whether the defendant is entitled to the benefit of Section 20(4) of Act No. 13 of 1972 ? 6. Whether the notice dated is 4.2.83 invalid and inoperative as alleged in para 11 of the written statement ? 7. Whether the suit is bad for non-joinder of all the member of the Joint Hindu Family as alleged in para 10 of the written statement ? 8. 6. Whether the notice dated is 4.2.83 invalid and inoperative as alleged in para 11 of the written statement ? 7. Whether the suit is bad for non-joinder of all the member of the Joint Hindu Family as alleged in para 10 of the written statement ? 8. To what amount and to what relief, if any, is the plaintiff entitled ? 9. Whether the suit is improperly valued and the court fee paid is insufficient ? 10. Whether the suit is barred by estoppel and acquiescence as alleged in para 12 of the written statement ? 8. To supplement their various contentions the parties adduced oral as well documentary evidence. 9. The trial Court while recording findings on issue No. 1 found that the applicant was a defaulter within the meaning of Section 20(2)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as amended up to-date. 10. However, while deciding issue No. 5, it was found by the trial Court that the applicant has complied with the requirements as enshrined in Section 20(4) of the Act relieving the applicant against his liability for eviction from the suit accommodation. 11. But the trial Court while deciding issue No. 3 regarding sub-letting held that the accommodation has been sub-let by the applicant in favour of Kaliash Nath Garg and is thus, liable to eviction. The issue was decided in the affirmative in favour of the opposite party and further held against the applicant regarding the suit being barred by estoppel and acquiescence besides his liability for the non-joinder by the necessary party. The issue Nos. 7 and 4 were, thus decided against the applicant. 12. In view of the findings by the trial Court as regards sub-letting the suit was decreed for eviction besides recovery of arrears of rent etc. 13. Thus, aggrieved against the judgment and order dated 22.1.1985 the applicant has preferred the instant revision under Section 25 of the Provincial Small Cause Courts Act. 14. Heard learned Counsel for the parties. 15. Learned Counsel for the applicant Sri B. Dayal has strenuously submitted that the findings recorded by the Court below are palpably erroneous and in intent smack of perversity. 14. Heard learned Counsel for the parties. 15. Learned Counsel for the applicant Sri B. Dayal has strenuously submitted that the findings recorded by the Court below are palpably erroneous and in intent smack of perversity. In any case the finding of the trial Court that Kailash Nath Garg has been sub-let the accommodation in question by the applicant, is not borne out from the record nor are based on the material available. The findings as such are not according to law and deserve an interference. 16. Before proceeding to discuss the main thrust of the submission of the learned Counsel for the applicant as regards sub-letting, it is imperative that few facts which are admitted to the parties be radiantly traced. 17. Firstly, the accommodation in question was let out some time in the year 1965 by the opposite party to the applicant; secondly, the business in the accommodation in question was carried in the name and style of "Standard Book Depot", thirdly, that the receipts were issued in the name of Badri Nath Garg (Applicant) and lastly that the opposite party (Landlord) has filed an application under Section 21(1) of the said Act against the applicant, which is till pending for disposal. 18. Besides the above facts which are admitted by the parties, another redeeming and significant fact which cannot be lost sight of is that Kailash Nath Garg is the real brother of Badri Nath Garg (applicant) both being sons of late Shri Gaya Prasad Garg, (emphasis supplied). Initially the opposite-party falsely stated that Kailash Nath Garg is an outsider and has no connection with the applicant Badri Nath Garg. The opposite party even feigned ignorance about relationship that Kailash Nath Garg is the real brother of the opposite party. He was termed more or less a foreigner for being inducted into the accommodation in question. However, the truth saw the dawn of the day and the opposite party had to succumb to the cardinal fact that Kailash Nath Garg is the real brother of Badri Nath Garg, applicant. This fact is being detailed so as to show the mind of the opposite party and his dubious and abhorrent ways to conceal truth from the Court, rather misguiding the Court. 19. This fact is being detailed so as to show the mind of the opposite party and his dubious and abhorrent ways to conceal truth from the Court, rather misguiding the Court. 19. Learned Counsel for the applicant Sri B. Dayal was very appreciably demonstrated with ability and precision that the finding recorded by the Court below that Kailash Nath Garg has been inducted as sub-tenant by his real brother Badri Nath Garg (applicant) is wholly perverse and in any case is not according to law. 20. I find dazzling merit in the submission. 21. There is no dispute that Triloki Nath, Kailash Nath Garg, Badri Nath are the real brothers being sons of late Shri Gaya Prasad Garg and carried business in the name and style of "Standard Book Deport", "Adarsh Pustak Bhandar", "Durga Printing Press" and "Jyoti Enterprises", respectively. It is evidenced by paper No. 68-C that all these four concerns are family enterprises. The invitation card which has been issued by Kedar Nath Garg on the occasion of the marriage of his younger brother Triloki Nath Garg son of Gaya Prasad Garg clearly indicates that the above establishments are of the family enterprises. Badri Nath Garg and Kailash Nath Garg are shown to be "Shubhechhu". Had all these enterprises not been of the family, then Kedar Nath Garg alone could not have shown them to be his enterprises alone. It is glaringly revealed that all these four enterprises are of the family. 22. Further it is borne out from the record that the "Standard Book Depot" and "Adarsh Pustak Bhandar" are being run from the accommodation in question. It has come in evidence that the "Standard Book Depot" was incepted some time in the year 1965 in the accommodation in question though the rent receipts were issued by the opposite-party in the name of the applicant Badri Nath Garg. It is on this premises that the opposite-party has alleged that Badri Nath Garg has sub-let the accommodation to Kailash Nath Garg. The allegation of the opposite-party that Kailash Nath Garg is the sub-tenant of the applicant (Badri Nath Garg) is incredulously abhorrent and is unworthy of acceptance. It smacks of the lack of understanding of relationship amongst the Hindus. Joint family was the bane of Hinduism. Assimilation and not separation was the key-note of Indian culture. Brothers have lived in harmony, thus, eulogising the precepts of Hinduism. It smacks of the lack of understanding of relationship amongst the Hindus. Joint family was the bane of Hinduism. Assimilation and not separation was the key-note of Indian culture. Brothers have lived in harmony, thus, eulogising the precepts of Hinduism. One amongst such members being the head was the 'karta' of the family. He was the patriarch, who looked after the interest and comfort of each and every member of the family. He was Machiavellian sovereign whose word and dictate was resounding and acceptable to each and every one in the family. With the passage of time modern environment plagued the Hindu society and individual interest tarnished the very sanctity of joint Hindu family system. Badri Nath Garg was the katra of the family as is emerging from the record and if the rent receipts are issued only in his name it would not tantamount that the other brothers had no interest in the business carried by the family. Members of family start various businesses which are looked after by one of them. Opposite-party was well aware about the fact that Kailash Nath Garg is the real brother of Badri Nath Garg, applicant. The opposite party still camouflaged this fact by initial concealment but later on admitting it. There is nothing on record to suggest that at the time or even today family is one well knit or is not united. It does not happen looking to the present day background that for the advancement of the business as has been stated, one of the brothers is directed to look after one business. There is not an iota of evidence even to suggest that Badri Nath Garg has in any case parted with the possession and that too with a permanent intention. A presumption cannot be raised in such circumstances that Badri Nath Garg has nothing to do with the business or has lost all interest therein. It was incumbent on the opposite-party to have established and proved to the hilt that the alleged occupant is the sub-tenant enjoying possession exclusively and secondly that sub-tenancy has been created for valuable consideration. Sub-tenancy can neither be presumed nor inferred. It has to be proved to the satisfaction of the Court that the two cardinal ingredients as enumerated above have been satisfied. Sub-tenancy can neither be presumed nor inferred. It has to be proved to the satisfaction of the Court that the two cardinal ingredients as enumerated above have been satisfied. Instantly the opposite-party has failed to prove to the hilt that the alleged sub-tenant Kailash Nath Garg is exclusively enjoying the possession of the accommodation in question. Kailash Nath Garg might have been directed to transact the business for the benefit of the family. Even assuming that Kailash Nath Garg is sitting on the shop in question it cannot be safely assumed nor presumed that he is enjoying exclusive possession in lieu of a valuable consideration. It would be a sad day to infer that one of the real brothers would be the sub-tenant of the other brother in the absence of any evidence or weighty material. It is an imaginative and fanciful allegation, which cannot throne truth that brother cannot be sub-tenant. Agreements are not arrived at between the brothers often but the mutual understanding pervades showing affinity and kinship. The oral dictate of the karta of the family is more than an agreement in writing. The opposite party has failed to discharge the burden which lay heavily on him to show that the profits of the Firm do not go to the family. It could have been shown by documentary evidence that Kailash Nath Garg is the sole occupant of the accommodation in question enjoying its possession exclusively for his benefit but such a proof is utterly wanting. An inference in such circumstances cannot be raised much to the detriment of the applicant. In the case of Ajit Singh v. N.C. Gupta and others, 1981 ARC 332, it has been held as stated above that of onus of proving sub-letting is on the landlord who has to establish that the occupant is the alleged sub-tenant and is in exclusive possession of the tenanted accommodation and that too for a valuable consideration. I respectfully agree to this view. The first essential ingredient for holding that the person, who is an occupation as a sub-tenant is in exclusive possession of the accommodation in question. This could have been proved by the opposite-party but in vain. I respectfully agree to this view. The first essential ingredient for holding that the person, who is an occupation as a sub-tenant is in exclusive possession of the accommodation in question. This could have been proved by the opposite-party but in vain. The second ingredient that the person has occupied the accommodation in question for some valuable consideration may be established by the circumstances from the relationship of lessor and lessee between the tenant and the alleged sub-tenant found to be in exclusive possession may be inferred. It is, thus, clear that the first ingredient that the person is in exclusive possession as a sub-tenant has to be established beyond doubt. The opposite-party has miserably failed to establish such a cardinal fact. Further in the absence of such a categorical finding of exclusive possession, the trial Court's order finding Kailash Nath Garg to be sub-tenant is manifestly erroneous and is not in accordance with law. Even if as discussed above, Kailash Nath Garg is in exclusive possession then the element of having exclusive possession over the accommodation in question for a valuable consideration is utterly lacking. The Court below vaguely proceeded that it is not possible to extract the reality as regards of valuable consideration. It was liable to be investigated. In the case of Smt. Krishnavati v. Sri Hansraj, AIR 1974 Supreme Court 280, it was held that onus to prove sub-letting is on the landlord. It is only after the landlord prima facie satisfies that the occupant, who was in exclusive possession of the accommodation in question let out for valuable consideration. It is only after such satisfaction that the tenant would be required to rebut the allegation. The onus in any case in absence of the twin considerations unless satisfied cannot be shifted to the tenant. The learned Counsel for the opposite-party tried to support the finding recorded by the trial Court. I am unable to agree as to how such finding can be deemed to be sacrosanct. I am clearly of the opinion that the Court below did not approach the issue on correct legal principle. The Court below has lost sight of factual common sense and has drawn inference in the teeth of the view taken in the case of Smt. Krishnavati. 23. It has been shown on record that Kailash Nath Garg is transacting the business in the accommodation in question since 1965. The Court below has lost sight of factual common sense and has drawn inference in the teeth of the view taken in the case of Smt. Krishnavati. 23. It has been shown on record that Kailash Nath Garg is transacting the business in the accommodation in question since 1965. In the case of Laxmi Narain and others v. Ist Additional District Judge, Muzaffarnagar and others, 1984(1) ARC 170, it has been held that where the sub-letting is alleged to have taken place prior to the coming of the Act into force, the question will have to be decided without reference to the provisions of Section 25 or Section 12 of the Act. Presently Kailash Nath Garg is in possession of the accommodation in question on behalf of the joint Hindu family since 1965. This has to be decided in accordance with the provision of Section 7(3) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, without reference to the provisions of Section 25 or Section 12 of the Act. Moreover, considering the relationship between the alleged sub-tenant Kailash Nath Garg and the applicant Badri Nath Garg, it cannot be presumed nor inferred that Kailash Nath Garg is a sub-tenant of the applicant. In the case of Jagdish Prasad v. Smt. Angoori Devi, 1984(1) ARC 679, it has been held that merely from the presence of a person other than a tenant in the shop, sub-letting cannot be presumed. It was held that as long a control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop, cannot be assumed. The Act does not require the Court to assume a sub-tenancy merely from the fact of presence of outsider. Opp. Party has failed to establish that Kailash Nath Garg is an outsider. It has also not been proved that the business so run in the premises is exclusively that of Kailash Nath Garg and is bereft of the family interest. The trial Court has in fact erroneous impression of the legal position and this Court while exercising its jurisdiction would be justified to rectify that mistake. Further the trial Court unwarrantedly drew the presumption and looked at the evidence of the applicant to find out whether the presumption has been rebutted. The trial Court has in fact erroneous impression of the legal position and this Court while exercising its jurisdiction would be justified to rectify that mistake. Further the trial Court unwarrantedly drew the presumption and looked at the evidence of the applicant to find out whether the presumption has been rebutted. There is no warrant in law for such a situation. The legal position having been totally misconceived by the trial Court and there being an assumption of the position which the landlord was required to prove by the evidence, the judgment and order cannot be deemed to be in accordance with law. 24. Another significant feature of this case is that the Opp. party came to know about the alleged sub-letting 5 years prior to the filing of the suit. The delay is attempted to be explained that during such time he was collecting evidence. However, no cogent evidence is forthcoming which may show that during these 5 years such evidence was collected. In the case of Smt. Shyam Kumari Gupta v. Shankar Sahai and another, 1982(2) ALJ 916, it was held that the landlady who came to know about the sub-letting of premises, sent a notice to the tenant in 1971 complaining about the sub-letting. She took no further action and the sub-tenant continued in occupation of the premises. After about 4 years in 1975, the landlady filed a suit for eviction of the tenant on the ground of illegal sub-letting by him. It was held that her implied consent to the sub-letting can be safely inferred. This right can also become bar under the principle of acquiescence. 25. In the case of Mahabir Singh v. Anant Ram, AIR 1966 Allahabad 214 it was held that where the landlord admitted that the tenancy has lasted for four years with his knowledge and rent has been paid by sub-tenant in the presence of the landlord and at several occasions passed on to him by the tenant the presumption of acquiescence will arise. It is also worthy of mention that having come to know five years back from the date of filing of the suit the Opp. Party was accepting rent from the applicant (Badri Nath Garg). The consent of the Opp. Party would thus be implicit in such acceptance of the rent even if it is alleged that a sub-tenancy in favour of Kailash Nath Garg has been created. Party was accepting rent from the applicant (Badri Nath Garg). The consent of the Opp. Party would thus be implicit in such acceptance of the rent even if it is alleged that a sub-tenancy in favour of Kailash Nath Garg has been created. The Opp. party came to know about the illegal sub-letting five years back but no action was taken. However, the applicant had clearly stated that Kailash Nath Garg is sitting in the shop since 1965 to look after and transact the family business. In the case of Rajendra Kumar v. District Judge, Bulandshahar, 1984 ALJ 99 it was held as under :- "4. Tenant is defined under Section 3(a) of the Act to mean person by whom rent is payable. Who can be such a person under the Act ? The one to whom the premises are allotted under Act or who enters into agreement with the landlord. That is either there is contract created by statute or by act of parties. Latter may be in writing or oral as an agreement or contract to be binding need not necessarily be in writing unless expressly provided. Agreement may also be inferred or it may arise by conduct of parties. For instance acceptance of rent by landlord from a person, in occupation as tenant. It may also arise by acquiescence or estoppel. A principle founded on justice and fair play, provided it is established that the representation was made it was acted upon and the represented altered its position to its prejudice. If these three are established then the person who by representation or conduct induces reasonable belief that he consents to it shall be precluded from going back on it. If a man either by words or conduct has intimated that he consented to an act which has been done, and that he will offer on opposition to it, although it could not have been lawfully done without his consent and he induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, Caireross v. Leremer, 1860(3) ALC 809. Petitioner has been found to be in possession since 1965 to the knowledge of opposite party. Length of possession and passage of time are circumstances which strongly (sic) in favour of petitioner. Added to this is the finding that opposite party had knowledge of it. Petitioner has been found to be in possession since 1965 to the knowledge of opposite party. Length of possession and passage of time are circumstances which strongly (sic) in favour of petitioner. Added to this is the finding that opposite party had knowledge of it. Therefore, the opposite party deemed to have consented (sic) in possession of applicant. Her case that premises were sublet by Ram Autar to petitioner has not been believed. Continuance of possession coupled with absence of any action till the application for regularisation under Section 14 of the Act was made by petitioner gives rise to reasonable inference that she was not only aware but agreed by her conduct to the arrangement of petitioner entering into possession and paying rent in name of Ram Autar. By her own conduct, therefore, she is estopped and agreement in continuance of petitioner's possession subject to payment of rent, may be in name of Ram Autar has to be inferred. The opposite party could not have been in doubt about the person who was paying the rent. Its effect could not be wiped off by camouflage of issuing receipt in name of Ram Autar. It is not unknown phenomenon in our society. To keep the grip tight over tenant the landlord at times resorts to practice of not issuing any receipt or in such cases to issues it in name of another so as to turn it to his advantage by alleging sub-letting as there is no limitation in the Act for taking action against such occupant. Therefore, non-issuing of receipt or issuing it in name of erstwhile tenant is not decisive of privity of contract or relationship of landlord and tenant. It is not issue of rent receipt by landlord but its payment or liability to pay it and its acceptance which brings into being relationship of landlord and tenant. Receipt was no doubt issued in name of Ram Autar but parties being aware that in fact it was being paid by petitioner the opposite party shall be deemed to have represented to petitioner that she agreed to his tenancy. And he acting on the representation was induced to believe that he has been accepted as tenant. And the payment in name of Ram Autar was made due to difficulties of allotment and changing of electric connection etc. And he acting on the representation was induced to believe that he has been accepted as tenant. And the payment in name of Ram Autar was made due to difficulties of allotment and changing of electric connection etc. If he would have known that opposite party was not accepting him as tenant he would have not purchased the flour mill and ginning machine. All the ingredients of estoppel, therefore, were satisfied". 26. Now from whatever aspect the case is examined the opposite party appears to be estopped from altering his position in relation to the applicant and claiming that his possession was not with his consent. In any case Kailash Nath Garg, even if, he is taken to be sub-tenant, then his possession is well within the knowledge of the opposite-party, who having been acquiesced in such knowledge of the fact is thus estopped from taking any action on the ground of sub-tenancy. 27. Before parting with this revision it may be notably mentioned that the opposite party had launched two-pronged crusade against the applicant. Some time in the year 1980 an application for the release of the accommodation as contemplated under Section 21(1) of the Act was filed. Perhaps not feeling very sure about success of such an application the instant suit was filed in the year 1983. True both rights can be availed by the landlord but the circumstances presently reveal lack of bonafides and the conflicting allegations of the landlord in the two cases. Tenancy is a valuable right. It cannot be parted on a platter. The accommodation in question where very business is being transacted is one of the sources of the livelihood of the family. Such oblique intentions clearly demonstrate the mind of the opposite party in seeking eviction of the applicant in one way or the other. True both the cases are independent of each other but it appears that the plea of sub-tenancy has been ingenuously cooked. 28. It is a fit case for interference. It is also made clear that the jurisdiction is being exercised to rectify the mistake on an erroneous assumption of law by the trial Court. Neither the evidence has been re-assessed nor re-appraised but in view of the unwarranted presumption having been drawn by the trial Court, which is not warranted by law, legal errors committed by the trial Court in its approach deserves rectification of the defect. Neither the evidence has been re-assessed nor re-appraised but in view of the unwarranted presumption having been drawn by the trial Court, which is not warranted by law, legal errors committed by the trial Court in its approach deserves rectification of the defect. 29. This revision, thus, is liable to be allowed and the judgment and the order of the trial Court decreeing the suit deserves to be modified. 30. In the result, the revision succeeds and is hereby allowed with costs. The judgment and the order of the trial Court decreeing the suit of the opposite party for ejectment of the applicant is hereby dismissed. The decree of the trial Court in regard to recovery of Rs. 1324/- as arrears of rent and taxes at the old rate, Rs. 400/- as enhanced water tax and sewage tax and accrued mesne profits from 8.3.83 to 30.4.84 at the rate of Rs. 212.50 per month besides pendente lite and future mesne profits at the above rate, is hereby affirmed.