Sardar Gurdeep Singh v. VIth Addl. District Judge — 1996 DIGILAW 1350 (ALL)

Judgment : R.H. Zaidi 1. IN the aforesaid two petitions the subject matter of dispute and the parties are the same. They were, therefore, connected and as desired by the learned counsel for the parties were heard together and are being disposed of by this judgment. 2. WRIT Petition No. 17378 of 1992 arose out of proceedings in S.C. Suit No. 1039 of 1982, while the other WRIT Petition No. 19871 of 1996 arose out of proceedings under Section 16 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for short the Act. The dispute relates to building No. 852/53-B, Dal Mandi, Naya Cantt, Kanpur (hereinafter referred to as the Building in Dispute). Late Sri Harbansh Singh Kohli, the father of the petitioner was the tenant in the building in dispute which was being used for the business purposes. He used to carry on the business in the name and style 'Sri Guru Nanak Agency'. On his death, the petitioner came into occupation of the same. The suit was filed by the respondent No. 2, for ejectment and recovery of rent on the grounds of default, sub-letting and change of user of the building in question. It was pleaded that inspite of notice of demand and termination of tenancy being served upon the petitioner on 6.7.1982, the amount of arrears of rent was not paid nor the building was vacated, that the building in question was sublet to Sri Yogendra Nath Dikshit illegally for the purpose of his residence and thus the user of the building was changed without permission of the landlord. 3. THE suit was contested by the petitioner who had pleaded that Sri Yogendra Nath Dikshit was his servant and not sub-tenant, on the death of Sri Harbansh Singh Kohli, he along with other heirs and legal representatives inherited the tenancy rights, that other heirs were not impleaded in the suit, that no rent was due against him and the user of the but ding was not changed. THE suit was, therefore, liable to be dismissed. 4. THE trial court framed as many as five issues and while dealing with Issue Nos. 1, 2 and 3 it was held that rent upto December, 1983 was paid by the petitioner and no rent was due against him, on the date of service of notice. THE suit was, therefore, liable to be dismissed. 4. THE trial court framed as many as five issues and while dealing with Issue Nos. 1, 2 and 3 it was held that rent upto December, 1983 was paid by the petitioner and no rent was due against him, on the date of service of notice. THE petitioner was also held entitled to the benefit of sub-section (4) of Section 20 of the Act. Notice of demand and termination of tenancy was also held to be illegal as the same was not served upon all co-tenants. It was also held that Sri Yogendra Nath Dikshit was only an employee and not a sub-tenant and that the user of the building was also not changed. Having recorded the said findings the trial court decreed the suit for recovery of rent only. THE relief for ejectment of the petitioner from the building in question was refused by the trial court by its judgment and decree dated 26.5.1990. Aggrieved by the judgment and decree passed by the trial court, the respondent No. 2 preferred a revision. The revisional court reversed the findings recorded by the trial court. It was held that the notice of termination of tenancy, served upon the petitioner, was valid and the suit filed against him for ejectment and recovery of arrears of rent was maintainable. It was further held that the building in question was sub-let by the petitioner to Sri Yogendra Nath Dixit and the user of the same was also changed. However, the finding on the issue of default recorded by the trial court was affirmed. Having recorded the aforesaid findings, the revision was allowed and the suit for ejectment and recovery of arrears of rent was decreed. Petitioner, challenging the validity of the judgment and order passed by the court below filed the present petition. 5. THE learned counsel for the petitioner submitted that Sri Yogendra Nath Dikshit was simply a servant of the petitioner and not the sub-tenant. Petitioner, challenging the validity of the judgment and order passed by the court below filed the present petition. 5. THE learned counsel for the petitioner submitted that Sri Yogendra Nath Dikshit was simply a servant of the petitioner and not the sub-tenant. There was no evidence on the record to show that any rent or any other consideration is being paid by Sri Yogendra Nath Dikshit for the occupation of the building to the petitioner, the court below has also not recorded any finding to that effect, therefore, the finding recorded by the revisional court to the contrary was perverse and the judgment and order passed by it was liable to be set aside. Learned counsel for the petitioner has also urged that the notice was not served upon all the heirs of Sardar Harbansh Singh, the same was, therefore, invalid and illegal. 6. ON the other hand, learned counsel for the respondent No. 2 has vehemently urged that Sri Yogendra Nath Dikshit, who was, according to the findings recorded by the Courts below, in occupation of the building in question and was living therein with his family, was not a member of the family of the petitioner and there was no evidence on the record that the building in question was being used for the purpose for which it was let out to Sri Harbansh Singh. The status of Sri Yogendra Nath Dikshit was nothing but that of a sub-tenant. It was also urged that the petitioner along with other members of the family of Harbansh Singh inherited the tenancy rights as joint tenants and the notice to any one of the joint tenants and the suit against any one of them was valid and maintainable. I have considered the rival submissions made by the learned counsel for the parties and also perused the record. The main questions for consideration in this case are as to whether Sri Yogendra Nath Dikshit who is in occupation of the building in question, is a sub-tenant or only a servant of the petitioner and whether the building in question is legally vacant? 7. The main questions for consideration in this case are as to whether Sri Yogendra Nath Dikshit who is in occupation of the building in question, is a sub-tenant or only a servant of the petitioner and whether the building in question is legally vacant? 7. SO far as the scope of Section 25 of the Provincial Small Causes Courts Act and the jurisdiction of the revisional court under the said provision is concerned, it is well settled in law that the revisional court in exercise of the power under the said provision, has got no jurisdiction to reappraise the evidence and reverse the findings of the trial court on the questions of fact and substitute its own finding, in case the revisional court is not satisfied with the findings of fact recorded by the trial court, it could at the best remand the case to the trial court. A reference in this regard may be made to the following decisions : M/s. Gur Narain Jagarat Narayan and Com. v. M/s. Motor and General Stores Ltd., 1980 ALJ 509. Smt Vidyavatt v. Tulsi Ram Saxena, 1979 ALJ 552. Smt Ram Piyare v. Budhsen and others, AIR 1977 All 391. 8. IT is well settled in law that if the findings recorded by the trial court are not based on any evidence or were in respect of the jurisdictional fact, or were vitiated by error of law, the revisional court is entitled to interfere with the said findings and could record its own findings. In the instant case, the court below did not interfere with the findings of fact recorded by the trial court. On issue No. 1, there was a finding of fact recorded by the trial court, which has been affirmed by the court below. It has rightly been held that the petitioner did not commit default in payment of rent. Since the issue Nos. 2, 3 and 4 involve the question of law and have been decided on the admitted facts of the case, the court below did not reappraise the evidence at all. It has rightly been held that the petitioner did not commit default in payment of rent. Since the issue Nos. 2, 3 and 4 involve the question of law and have been decided on the admitted facts of the case, the court below did not reappraise the evidence at all. It has rightly been held by the court below that on the death of Sardar Harbansh Singh Kohli, his heirs Inherited the tenancy right as joint tenants and the notice of termination of tenancy to one was valid and the suit against one was maintainable in view of the several decisions of the apex court and this court. A reference in this regard may be made to the following decisions : Harish Tandon v. Distt Magistrate, Allahabad, 1995 (1) ARC 220. and C. Pandey v. G. C. Paul AIR 1989 (2) SC 26. Kanji Manji v. Trustee of Port of Bombay, AIR 1963 SC 468 . 9. THE court below has thus, did not commit any error of law in holding that the notice of termination of tenancy served upon the petitioner, who was one of the joint tenant was valid and the suit filed against him for ejectment and recovery of arrears of rent was maintainable. 10. SO far as the question of sub-letting is concerned, admittedly, as many as nine members of the family of Sri Yogendra Nath Dikshit are in occupation of the building in question and are residing therein. The building is not being used for the purposes for which it was let out to the father of the petitioner. Sri Yogendra Nath Dikshit is admittedly not the member of the family of the petitioner, therefore, the Court below in view of the provision of Section 12 read with Section 25 of the Act has rightly held that he was nothing but a sub-tenant. In a Full Bench decision in Smt. Keshar Bai v. District Judge, Mathura, 1980 ARC 223, it was ruled as under: "Although the settled law now appears to be that the mere literal construction of the statute ought not to prevail if it is opposed to the intention of the Legislature. In a Full Bench decision in Smt. Keshar Bai v. District Judge, Mathura, 1980 ARC 223, it was ruled as under: "Although the settled law now appears to be that the mere literal construction of the statute ought not to prevail if it is opposed to the intention of the Legislature. It is apparent from the statute by even applying the rule that in the first instance the grammatical sense of the words is to be adhered to, that clause 12 (1) (b) takes within its sweep any sub-letting which had taken place even prior to the commencement of U. P. Act No. 13 of 1972. It provides that if any person has been allowed to occupy the building who is not a member of the family, such a person who would be considered to be a sub-tenant. The tenant admitting or allowing a person to occupy the building or part thereof would be liable to be dispossessed from that building or part as the case may be. Under clause (b) of sub-Section (1) of Section 12, such a tenant would cease to occupy the building." The construction placed on clause (b) of sub-section (1) of Section 12 that it takes in its sweep the cases of sub-letting done before the enforcement of the present Act, is in consonance with the view taken under the old Act sub-section (b) of Section 12 carries a legal fiction and calls upon a court to assume that there had been a sub-letting. In fact, the provision now incorporated in Section 12 (1) (b) is stricter in its effect and more effective. It does not leave any scope for argument permitting a tenant to say that there has been no letting out of the premises by him. Laq requires a court to hold sub-letting even if it is unreal or false. In a case where a person other than a family member is found in occupation of a building, a court will have to assume that possession of such a person Is that of a sub-tenant. Whereas here a legal fiction is created, no party will be entitled to controvert or disprove it." 11. In a case where a person other than a family member is found in occupation of a building, a court will have to assume that possession of such a person Is that of a sub-tenant. Whereas here a legal fiction is created, no party will be entitled to controvert or disprove it." 11. IN Harish Tandon case (supra) in Paragraph 18 of the said decision, it was ruled as under by the Supreme Court: "..........The landlord or the tenant, as the case may be, shall be deemed to have ceased to occupy the building only if he has allowed it to be occupied by any person, who is not a member of his family. The words "allowed to be occupied" indicate that the possession of such building has been given to a person who is not a member of the family resides in such building either along with the landlord or the original tenant. If the landlord or the tenant allows any person, who is not a member of the family within the meaning of the Act to occupy the premises, with the object that such person shall occupy such premises in his own rights, in that event. Clause (b) of subsection (1) of Section 12 shall be attracted." 12. SIMILAR view was taken by the Supreme Court in the case of Girja Shanker and others v. Hridya Ranjan Chakarvarty. 1988 (2) ARC 501. The revisional court has given into consideration all the relevant aspects and relevant case law on the point and rightly held that Sri Yogendra Nath Dikshit who is admittedly not the member of the family of the petitioner, was nothing but was a sub-tenant and rightly allowed the revisional and decreed the suit. 13. AS stated above, the Civil Misc. Writ Petition No. 19071 of 1996, arose out of the proceedings under Section 16 of the Act. The said proceedings were initiated on an intimation of vacancy given by the respondent No. 2 on 4.8.95. On the same day, an application for release of the building in question was also filed by the said respondents. The Rent Control and Eviction Officer held that there was no evidence on the record to show that the business of M/s. Guru Nanak Agencies was carried in the building in question. On the same day, an application for release of the building in question was also filed by the said respondents. The Rent Control and Eviction Officer held that there was no evidence on the record to show that the business of M/s. Guru Nanak Agencies was carried in the building in question. On the other hand, from the evidence on record, it was proved that the building in question was in exclusive possession of Sri Yogendra Nath Dikshit, who was not the member of the family of the petitioner. The judgment and order passed by the revisional court in S. C. Revision No. 114/90 arising out of S. C. Suit No. 1039 of 1982, Ravi Prakash Chaurasiya v. Sardar Gurdeep Singh, referred to above, were also taken into consideration and the building in question was declared as vacant. 14. LEARNED counsel for the petitioner submitted that the Rent Control and Eviction Officer has acted illegally in declaring the building in question as vacant relying upon the judgment of the revisional court, when actually the building in question was not vacant. The Rent Control and Eviction Officer taken into account the material on the record including the report of the Rent Control Inspector as well as the judgment and order passed by the revisional court in the aforesaid case and rightly held that the building in question was vacant. 15. SUB-section (4) of Section 12 of the Act provides as under : "12. (4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1) or sub-section (2) or subsection (3) and sub-section (3A) or sub-section (3B) shall for the purposes of this Chapter be deemed to be vacant." 16. IN view of the aforesaid provision, the petitioner ceased to occupy the building in question. The same was thus in eyes of law vacant. I have already upheld the validity of the order passed by the revisional court referred to above, therefore, in my opinion the Rent Control and Eviction Officer, relying upon the said judgment rightly declared the building in question as vacant. In view of the aforesaid discussions, no case for interference under Article 226 of the Constitution of India is made out. 17. BOTH the writ petitions fail and are dismissed in limine, but without any order as to costs.