SHIV CHARAN DASS v. UJAGAR MAL — 1998 DIGILAW 466 (ALL)

O. P. GARG, J. This is defendants revision application under Section 25 of the Provincial Small Causes Courts Act against the judgment and decree dated 24-4-1987 passed by Sri Brij Mohan Joshi, the then IXth Additional District Judge, Meerut. 2. Briefly stated, the facts of the case are that late Ujagar Mal Jain instituted SCC Suit No. 58 of 1978 for the relief of possession after ejectment of deceased defendant No. 1-Asha Ram (whose legal heirs are defendant-opposite party Nos. 2/1 to 2/5) and the alleged sub-tenant-Shiv Charan Das, the present defendant-revisionist, from a shop situate in Mandi Ghanshyam Ganj, Quasba Baraut Tahsil Baghpat in district \meerut and for recovery of arrears of rent and mesne profits. It was alleged that late Asha Ram- defendant No. 1 was the tenant of the disputed shop at a monthly rent of Rs. 200/- and that he had failed to pay rent w. e. f. 1-4-1975 onwards, and has also il legally sub-let the shop to Shiv Charan Das- defendant No. 2. The shop was said to have been constructed in the year 1973 and consequently it was alleged that the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (hereinafter referred to as the Act) did not apply to the shop in question. Notice to quit dated 6-1- I97c under Section 106 of the Transfer of Property Act was sent to Asharam, the original tenant. Neither he, nor his sub tenant vacated the disputed shop. Besides the relief of possession over the shop, a sum of Rs. 6,443/-was claimed as arrears of rent for the period 6-2-1978, Rs. 750/- as mesne profits, up to the date of the suit and pendente lite and future damages at the rate of Rs. 200/-per month. 3. Asha Ram, defendant No. 1 con tested that suit and admitting the fact that he was the tenant of the shop in question, pleaded that he had vacated the s. hop in the year 1968 itself and that no rent was due against him as he had never been in posses sion of the shop after vacating the same. He has also alleged that the rate of rent was Rs. 650/- per year and not Rs. 200/- per month and that he had not sub-let the disputed shop to the defendant No. 2-Shiv Charan Das. He has also alleged that the rate of rent was Rs. 650/- per year and not Rs. 200/- per month and that he had not sub-let the disputed shop to the defendant No. 2-Shiv Charan Das. He maintained that the shop is an old one and the provisions of the Act applied. 4. A separate written statement was filed by Shiv Charan Das, the present revisionist who was defendant No. 2. He has alleged that after the vacation of the shop by Asha Ram in the year 1968, he was inducted as a tenant on yearly rent of Rs. 650. He claims himself to be the chief tenant of late Ujagar Mal. According to him, he had paid the rent upto Deepawali 1978 and since no notice, determining his tenancy has been served upon him, he is not liable to be evicted. He has also taken the plea that the shop was not reconstructed in the year 1973 and since it was an old shop, the provisions of the Act would apply. 5. On the pleadings of the parties, learned trial Court framed necessary is sues and after taking into consideration and appraising the evidence on record and the respective submissions on behalf of the parties, came to the conclusion that the provisions of the Act are applicable to the disputed shop, that the rate of rent of the shop in question was Rs. 650 per annum and not Rs. 100/- or Rs. 200/- per month; that the defendant No. 1-Asha Ram never vacated the shop in question in the year 1968 and that he had inducted Shiv Charan Das defendant No. 2 as a sub-tenant who continues to be in actual and physical pos session of the shop. It was also held that the defendant No. 1 had failed to pay rent for the period August 1975 onwards even at the rate of Rs. 650/- per annum and conse quently he has committed default in pay ment of arrears of rent thereby rendering himself liable to ejectment alongwith sub tenant. 6. Heard Sri Pramod Kumar Jain learned Counsel for the defendant-revisionist and Sri Pramod Jain, learned Counsel for the plaintiff-respondent No. 1 (i. e. legal heirs of the deceased-plaintiff Ujagar Mal ). 7. 650/- per annum and conse quently he has committed default in pay ment of arrears of rent thereby rendering himself liable to ejectment alongwith sub tenant. 6. Heard Sri Pramod Kumar Jain learned Counsel for the defendant-revisionist and Sri Pramod Jain, learned Counsel for the plaintiff-respondent No. 1 (i. e. legal heirs of the deceased-plaintiff Ujagar Mal ). 7. On behalf of the defendant revisionist, it was vehemently argued by Sri Pramod Kumar Jain that the court below has taken a perverse view of the evidence on record and has committed a grave il legality in recording a finding that the defendant-revisionist is the sub-tenant of the original tenant Asharam- defendant No. 1 and that in view of the illegal and perverse finding the decree for ejectment, could not be passed against the defendant-revisionist. This submission has been repelled by Sri Pramod Jain, learned Counsel for the plaintiff-respondents. 8. After having heard learned Coun sel for the parties, 1 find. that it would be proper to clear the decks and remove cob webs about the controversy between the parties in respect of the applicability or otherwise of the provisions of the Act as a finding on this point is to have a bearing on, the question of default in payment of ar rears of rent The firm stand taken by the plaintiff-landlord is that the disputed shop was reconstructed and renovated in the year 1973-74 and, therefore, the provisions of the Act did not apply. There is no dis pute about the fact that Asharam-defen dant No. 1 was inducted as a tenant in the disputed shop sometime in 1952 as has been clarified by late plaintiff Ujagar Mal in his statement under Order X, Rule 2, CPC. Ujagar Mal continued to remain in occupation of the said shop admittedly as a tenant. The shop was an old one to which ordinarily, the provisions of the Act would have been applicable but for the plea that it was reconstructed in the year 1973-74. There is nothing on record to indicate that the old shop was demolished and reconstructed or a substantial part of it was demolished and re-erected in the years 1973-74. A new shop could not be brought into existence without getting the plan sanctioned from the Local Authority. There is no sanctioned plan to indicate that the shop was reconstructed. There is nothing on record to indicate that the old shop was demolished and reconstructed or a substantial part of it was demolished and re-erected in the years 1973-74. A new shop could not be brought into existence without getting the plan sanctioned from the Local Authority. There is no sanctioned plan to indicate that the shop was reconstructed. The reconstruction of the shop was not pos sible unless the sitting tenant or the person who was in its actual and physical posses sion was asked to vacate the shop and was allowed to re-enter the possession after reconstruction of the shop; Whether the shop was in possession of Asharam or in possession of Shiv Charan Das, none of them was required to vacate the old shop in order to enable the landlord to reconstruct the same. Obviously, at the relevant time, the shop was in occupation of the defen dant- revisionist. There is no averment on behalf of the plaintiff-respondent that at some point of time, the defendant-revisionist was asked to get out of the shop so that it could be reconstructed. Except for the bald statement of the plaintiff-landlord, there is no reliable oral or documentary evidence to establish the fact that the old shop, which admittedly existed in the year 1952 and in which Asharam- defendant No. 1 was inducted as a tenant was demolished and reconstructed. The plea of the landlord that the disputed shop was reconstructed in the year 1973-74 stands falsified from the facts and cir cumstances of the case. The court below has rightly recorded the finding that the provisions of the Act are applicable to the disputed shop. 9. The main controversy between the parties centers around the fact whether Asha Ram defendant No. 1, who admitted ly was original tenant, had sub-let the shop in question to Shiv Charan Das defendant revisionist, or the latter is in possession and occupation of the shop in his own right as a tenant directly of the plaintiff-landlord. It is accepted at all hands that Asharam was the tenant of the shop. He was carrying on his business from the shop in question of which he admittedly was the tenant of a long standing, having been inducted in or about the year 1952. It is accepted at all hands that Asharam was the tenant of the shop. He was carrying on his business from the shop in question of which he admittedly was the tenant of a long standing, having been inducted in or about the year 1952. Asharam has pleaded that he had vacated the shop in the year 1968 and that there after he had nothing to do with the dis puted shop. This fact is denied by the plain tiff-landlord. There is nothing on record to establish that Asharam had, in fact, va cated the shop in the year 1968 and that he delivered the vacant possession of the shop to the landlord, as he was duty bound to do so under the provisions of Section 108 (q) of the Transfer of Property Act, 1882. The court below has also recorded a finding of fact that Asharam had executed a rent-note dated 3-10-1968 (paper No. 29-A) by which the rate of rent was en hanced to Rs. 100 per month from Rs. 650 per year. The validity and admissibility of this unregistered document has been chal lenged on behalf of the defendant-revisionist both before the Court below and before this court, with reference to the provisions of Registration Act. It is true that the document, as such, is inadmissible but in view of the proviso to Section 47 of the Registration Act and in view of the law laid down in AIR 1981 (NOC) 128 Chhut-tan Khan v. Zila Parishad and 1983 ARC 422; Jarif Ahmad v. Satish Kumar it can be looked into for colateral purposes. The very fact that the document was executed by Asharam indicates that on 3-10-1968 he was in possession of the disputed shop. This document, therefore, cuts at the very root the stand taken by him that he had vacated the shop in the year 1968. The learned trial Court has rightly concluded that if Asharam had, in fact, vacated the shop in 1968, there was hardly any occasion for him to have executed a rent-note (paper No. 20-A) no 3-10-1968. This docu ment further falsified the stand taken by the present defendant-revisionist that he came in occupation of the disputed shop two or three months prior to Deepawali in the year 1968 directly at the behest of the landlord. This docu ment further falsified the stand taken by the present defendant-revisionist that he came in occupation of the disputed shop two or three months prior to Deepawali in the year 1968 directly at the behest of the landlord. The finding of the court below that Asharam continued to remain in pos session of the disputed shop as a tenant and that he did not vacate the shop in the year 1968 as alleged by him, is according to law, and does not suffer from any infirmity. Though evidence is not required to be reappraised by the revisional court, I have done so in my quest to reach the truth and find myself in agreement with the court below on the point. 10. Admittedly, Asharam is not in actual and physical possession of the dis puted shop. The shop is in possession and occupation of Shiv Charan Das, defen dant-revisionist. The moot point for con sideration and determination, therefore, is as to in what capacity the defendant-revisionist is occupying the disputed shop. Is he a chief tenant having been directly inducted by the plaintiff-landlord or a sub tenant having been let into possession by the original tenant Asharam ? As said above, Asharam did not vacate the shcp and hand over the possession to the landlord in the year 1968. He continued to remain as tenant. It has come in evidence that Asharam has another shop in the vicinity. 11. The question of burden of proof of sub-letting which originally was vesting in nature come to the well embedded and in short, it may be mentioned that the landlord shall be deemed to have dis charged his initial burden if he establishes that a person other than the tenant is in exclusive possession of the tenanted ac commodation. While considering the na ture of onus in the case of eviction on the ground of sub-letting, the court cannot overlook the fact that it is by no means an easy task since direct evidence of sub-let ting is seldom available. Conscious of the fact that the consequences of sub-letting are rigorous, a sub-lease is created by tenant in a clandestine manner and ob viously the landlord would be a complete stranger to such arrangement. Conscious of the fact that the consequences of sub-letting are rigorous, a sub-lease is created by tenant in a clandestine manner and ob viously the landlord would be a complete stranger to such arrangement. It is also in the common interest of both the tenant and the sub-tenant that the nature of trans action between them is kept a closely guarded secret and no piece of evidence reflecting the same is allowed to leak out, thereby exposing their relationship to the risk of being evicted at the hands of the landlord. No prudent tenant is, therefore, expected either to enter into such an agreement or receive rent from his sub tenant or pass receipt of such rent in the presence of others. The landlord who is placed in such a quandary can only prove the relationship of the tenant and the sub tenant by attending circumstances, which may raise inference of sub-letting or as signment. It is also true that mere presence of a third person in the premises would not raise a presumption of sub-tenancy. The fact whether the sub-tenancy has come to be created is to be judged and gauged in the light of the facts and circumstances of a particular case. If a person other than the tenant has been in possession of the tenanted accommodation for a consider able long time and is doing business from there, a legitimate inference of sub-tenan cy can be drawn. In these circumstances, the landlord would be deemed to have discharged the initial burden placed upon him, if he succeeds in showing that the tenant had parted with an handed over exclusive possession and control of the demised premises to the alleged sub tenant. It is thereafter for the tenant to prove and explain the circumstances lead ing to such transfer of possession. The only person who can account for such transfer of possession are the tenant and the transferee. It, therefore, follows that in a situation of this kind the onus would shift on the tenant to show that the transfer of possession was not by way of sub- letting or assignment and that dispite such transfer of possession, the tenant retains with him legal right of possession. Where the tenant fails to so satisfy the court, the landlord must be said to have established his plea of sub-letting. Where the tenant fails to so satisfy the court, the landlord must be said to have established his plea of sub-letting. In this connection, a reference may be made to a celebrated-decision of Himachal Pradesh High Court, AIR 1987 HP 9 , Hemraj v. Basta Singh and another, as well as, to a decision of this court in 1984 (2) ARC 114 Jagdish Prasad v. Additional District Judge, Ghaziabad and others. In Jagdish Prasads case (supra), a reference was made to the earlier decision in AIR 1973 Allahabad 229 Tej Shankar Chaubey v. Tejnarain. As regards burden of proof, it was held that initially onus lies on the plaintiff-landlord and he must prove two things; firstly, that the defendant No. 1 was his tenant-in-chief of the accommodation in suit and secondly, that the defendant No. 2 (to whom he alleges to be sub-tenant of defendant No. 1) is in actual physical possession of such accommodation. On such proof, onus shifts to defendant No. 2, who denies his status as sub-tenant and asserts himself to be tenant-in-chief, to prove that he is the tenant-in-chief of the accommodation. 12. The matter also came to be con sidered by the apex Court in the case of Rajbir Kaur v. Chokesri (1989) 1scc19, in which it was observed: "if exclusive possession is established and the version of the respondent as to the par ticulars and the incidents of the transaction is found acceptable in the particular facts and cir cumstances, of the case, it may not be impermis sible for the court to draw an inference that the transaction was entered into with monetary con sideration mind. It is open to the respondent to rebut this. Such transactions of sub- letting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of sub-letting so, of course, on the appellants. The burden of establishing fact and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. The burden of making good a case of sub-letting so, of course, on the appellants. The burden of establishing fact and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though, the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstan ces of the case, we think, that, appellants have been forced by the courts below to have estab lished exclusive possession of the ice-cream ven dor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considera tions. There is no explanation forth coming from the respondent appropriate to the situa tion as found. " 13. The above observations came to be approved and reiterated by Honble Supreme Court in the case of M/s. Nihal Chand Rameshwar Das and others v. Vinod Kumar Rastogi and others, (Judgment Today 1994 (4) SC 113 ). The findings recorded by the court below are clearly in conformity with the above observations made by the Supreme Court and are in keeping with the law with regard to burden of proof in the matter of sub-letting. The landlord has established and rather it is admitted fact that Asharam- defendant No. 1 has been his chief-tenant in the dis puted shop which was never vacated by him. It is also admitted that Shiv Charan Das, defendant-revisionist has been in long standing possession, i. e. , for the last about one decade before the institution of suit and has been carrying on his business from the disputed shop as the chief-tenant has shifted his business to his own shop in the vicinity. It is also admitted that Shiv Charan Das, defendant-revisionist has been in long standing possession, i. e. , for the last about one decade before the institution of suit and has been carrying on his business from the disputed shop as the chief-tenant has shifted his business to his own shop in the vicinity. A faint suggestion was made by the learned Counsel for the defendant-revisionist that the landlord has accepted rent from the defendant-revisionist and, therefore, it can be concluded that the landlord has accepted the defendant-revisionist as his tenant and now it does not lie in the mouth of the plaintiff- landlord to allege that the defendant-revisionist is sub-tenant. It was also urged that under the provisions of Section 14 of the Act, since the defendant No. 2 has been in possession of the disputed shop with the consent of the landlord, his possession shall stand regularised. These submission are wide off the mark. Except for the fact that certain entries have been made about the payment of rent by the defendant-revisionist in his business account books, there is no documentary evidence record that the plaintiff-landlord has accepted rent directly from him. The court below has rightly rejected the evidence of pay ment of rent by the defendant-revisionist which is based on the entries made in the account books. The fact, therefore, remain that there has been no payment of rent by the defendant-revisionist or acceptance thereof. No document of payment of rent by the defendant-revisionist or acceptance by the plaintiff-respondent is on record. The plea of estoppel and acquiescence is not applicable in the case of sub-tenancy. This matter has been dealt with by the Supreme Court in the case of Shalimar Dar Products Ltd. v. H. C. Sharma and others, 1988 (1) SCR 1023 , in which it was held that mere permission or acquiescence would not amount to consent on the part of the landlord to sub- letting. The consent on the part of the landlord must be to the specific sub-letting and must be in writing. There is no implied permission in the mat ter of sub-letting. In another case reported in 1990 (1) SCC 169 Dulichand v. Jag- mender Das, it was held that there cannot be any implied consent or waiver by a landlord. The consent of the landlord should be in writing. There is no implied permission in the mat ter of sub-letting. In another case reported in 1990 (1) SCC 169 Dulichand v. Jag- mender Das, it was held that there cannot be any implied consent or waiver by a landlord. The consent of the landlord should be in writing. The plea that the possession of the defendant-revisionist stands regularised under Section 14 of U. P. Act No. XIII of 1972 is otiose for one simple reason that this plea was not pressed into service before the trial Court. Moreover, as said above, there is nothing on record of the case that the defendant-revisionist had occupied the shop and con tinued to do so with the consent of the plaintiff-landlord. 14. The learned trial Court rightly recorded the finding that the defendant No. 1 who was chief-tenant in the disputed shop had sub-let the same to the defen dant-revisionist Shiv Charan Das. It is one of the grounds available for ejectment of the tenant alongwith sub-tenant even if provisions of the Act are held to be ap plicable to the disputed accommodation. Not only this, the defendant No. 1 Asharam has also committed default in payment of arrears of rent for a period more than four months and consequently, on both the grounds of default as well as sub-letting the defendant-revisionist as well as chief-tenant Asharam are liable to be evicted. 15. At this stage, it would be worthwhile to mention that the scope of revision under Section 25 of the Provincial Small Causes Courts Act is quite limited. The court in deciding such a revision has to satisfy itself that the trial Courts decree or order is according to law. The dictum of the Supreme Court in Matini Ayyappa Naicker v. Seth Manghraj Udhavdas Firm, AIR 1969 SC 1344 that a wrong decision on fact is also a decree according to law, has to be kept in mind. The provision confers a supervisory and not an appellate power. The record can be called for seeing that the decree is according to law. The revisional court cannot interfere with the findings recorded by the court below if the evidence has been properly appraised and the over all view taken by the court below is jus tified. I do not find any reason or ground todiffer with the conclusions arrived at by the court below. The revisional court cannot interfere with the findings recorded by the court below if the evidence has been properly appraised and the over all view taken by the court below is jus tified. I do not find any reason or ground todiffer with the conclusions arrived at by the court below. The impugned decision of the court below is according to law and calls for no interference in exercise of revisional jurisdiction, under Section 25 of the Provincial Small Causes Courts Act. 16. In the result, the revision is devoid of any merits and substance and is accord ingly dismissed with costs. Dated 22-4-1998. Sd. /-O. P. Garg. 22-4-1998. After delivery of this judgment, Sri P. K. Jain, learned Counsel for the tenant revisonist urged that some time may be allowed to vacate the disputed shop. Sri Pramod Jain, appearing on behalf of the landlord- opposite parties has no objec tion in allowing six months time to the tenant-revisionist to vacate the shop. Ac cordingly, it is ordered that the decree for dispossession of the tenant-revisionist shall not be executed prior to 30th Novem ber, 1998 provided that: (i) the tenant-revisionist files an affidavit before the court below within a period of one month from today that he shall vacate the dis puted shop and hand over its vacant possession to the plaintiff- landlord by the forenoon of 1st December, 1998; and (ii) the tenant-revisionist deposits the en tire amount of mesne profit at the rate specified by the court below upto 30th November, 1998 within a period of one month from today. In case either of the above conditions or both of them is/are not complied with, the decree for dispossession shall become executable all at once. Revision dismissed. .