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2000 DIGILAW 401 (RAJ)

LAL SHANKER v. CHATURBHUJ

2000-04-03

N.P.GUPTA

body2000
Judgment N. P. GUPTA, J. ( 1 ) BY this appeal, the defendants seek to assail the concurrent judgments of the two learned Courts below, decreeing the plaintiffs suit for eviction from the suit shop, on the ground of subletting, so also on the ground of the suit premises having become unsafe for human habitation. ( 2 ) THE first contention of the learned counsel is that there is no pleading about subletting and, thus, even without there being any pleading, the learned Courts below have decreed the suit on the basis of subletting. Another contention is that the reliance on Exs. 4 and 5 is wholly contrary to law as these are the statements of the two appellants given on some criminal case which have not been proved, apart from the fact that even from those statements, no subletting is proved. The next submission is that the appellant No. 1 Lal Shanker as DW-1 has deposed that the defendant No. 2 Sumer Mal is not in possession of the shop and this evidence has not been controverted. According to the learned counsel, the possession of alleged sub-tenant is one of the basic requirements of subletting, inasmuch as, according to the judgment of the Honble the Supreme Court reported in (1987) 4 SCC 161 (165) : ( AIR 1987 SC 2055 ) for subletting, the person alleged to be sub-tenant must be shown to be in exclusive possession of the premises over which the main tenant having no control and such transfer of possession should be for consideration. The learned counsel then, submitted that there is no evidence or finding on behalf of the appellant No. 2 having been put into possession for some cash consideration. Thus, the finding on the question of subletting is wholly unsustainable. ( 3 ) ASSAILING the finding on the question of premises having become unsafe for human habitation, again, the learned counsel contended that there are no pleadings in the plaint in this regard as required by Section 13 (1) (k) of the Rajasthan Premises (Control) of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act" ). ( 3 ) ASSAILING the finding on the question of premises having become unsafe for human habitation, again, the learned counsel contended that there are no pleadings in the plaint in this regard as required by Section 13 (1) (k) of the Rajasthan Premises (Control) of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act" ). According to the learned counsel, if the provisions of Section 13 (1) (b) are to be invoked, there has to be pleading, evidence and finding about the tenant having wilfully caused or permitted to be caused substantial damage to the premises and if grounds mentioned in Section 13 (1) (k) were to be invoked, then, pleading, evidence and finding has to be there that the landlord requires the premises in order to carry out any building work and such requirement should have arisen because of the premises having become unsafe or unfit for human habitation. In the present case, according to the learned counsel, there is no such pleading, evidence or finding, inasmuch as, all that has been found is that the verandah has fallen down and as ballies have been put in the wall of the shop, if they fall down, it can bring about a hazard to human life and thus, the shop has become unfit for human habitation. The learned counsel also contended that even this finding is based on misreading of the statement of DW-1. ( 4 ) ON the other hand, controverting the submissions made by the learned counsel for the appellants, the learned counsel for the respondents contended that all the findings recorded by the learned Courts below, on both the grounds of eviction, are brass findings of fact and do not require any interference in this second appeal. Elaborating the submissions, the learned counsel contended that the two learned courts below have positively found as a fact that exclusive possession of the suit property has been given by the tenant to the sub-tenant being appellant No. 2 and for arriving at this finding, the learned Courts below have given cogent and valid reasons, have appreciated the evidence of both the parties and, rather relying upon the contradictions between the statements of tenant and sub-tenant, have arrived at the finding which is a pure question of fact and is duly supported by evidence, the finding cannot be interfered with. The learned counsel contended that once it is found that the alleged sub-tenant is in exclusive possession of the tenanted property, then it is for the defendants to show the principal tenant to have retained the right to enter into possession. On the question of transfer of possession being for consideration, the learned counsel contended that the Courts below have found the premises to have been sublet and subletting since even according to the appellants, is for consideration, according to the learned counsel for the respondents, the finding about transfer being for consideration, is implicit. Apart from this, the learned counsel also invited my attention to the evidence of PW-1 and PW-2 thereby it is clearly established that the possession was transferred for consideration and has contended that this evidence has not been either subjected to or shaken in the cross-examination. The learned counsel also invited my attention to last four lines of para 10 of the judgment of the learned Lower Appellate Court, whereby the learned Lower Appellate Court has referred to and relied upon the evidence of PW-2 Manroop Chand on the question of transfer of possession being for consideration, and has held that not a single question was put to this witness on the side of the defendants and, thus, the learned Lower Appellate Court has found subletting to be established. ( 5 ) CONTROVERTING the contention about absence of pleading, learned counsel contended that this ground was never raised on the side of the appellants before any of the learned Courts below. Referring to para 6 of the plaint, learned counsel contended that therein there is a substantial pleading and to this pleading, defendants have filed a reply and reading the two together, the learned trial Court framed issue, being issue No. 4 which reads, when translated into English, as under :-"whether the defendant Lal Shanker has sublet the suit shop and, therefore, the plaintiff is entitled to eviction?" ( 6 ) IT is with this issue that the parties went to trial and led evidence. In such circumstances, by construing the pleadings liberally, no interference is required to be made in this second appeal. For this proposition, the learned counsel relied upon three judgments of Honble the Supreme Court reported in AIR 1966 SC 735 , AIR 1984 SC 1242 (sic) and (1998) 7 SCC 608 : ( AIR 1998 SC 3214 ). In such circumstances, by construing the pleadings liberally, no interference is required to be made in this second appeal. For this proposition, the learned counsel relied upon three judgments of Honble the Supreme Court reported in AIR 1966 SC 735 , AIR 1984 SC 1242 (sic) and (1998) 7 SCC 608 : ( AIR 1998 SC 3214 ). ( 7 ) THE next limb of the argument of the learned counsel is that if the plaintiff simply pleads the tenant to have inducted some-body unlawfully, even that much is sufficient plea for plea of subletting and for this purpose, relied upon the judgment of Honble the Supreme Court reported in (1999) 1 SCC 47 : ( AIR 1999 SC 162 ). ( 8 ) REPLYING to the contention about the property being unfit for human habitation, the learned counsel invited my attention to the pleading being contained in para 7 of the plaint to the effect that the defendant has excavated a soak pit and on account of deposit of water therein, front portion of the verandah has fallen down and, thereby, the shop has become unsafe and unfit for human habitation and, therefore, the remaining part of the shop is also required to be demolished and rather constructed and submitted to be a sufficient pleading as contemplated by Section 13 (1) (k), and has contended that from the evidence on record, it is clearly established that the shop has become unfit for human habitation. Learned counsel invited my attention to the admissions of DW-2, being the appellant No. 2, made while in the witness box to the effect that it is correct that there is "lelari" in the bricks of the wall of the shop on the lower side and that the binding earth is coming out of the bricks. According to the learned counsel, this admission clearly describes, in brief, the overall dilapidated condition of the shop, as such exhausted bricks can give way any time and prove a life hazard, more particularly when admittedly the roof of verandah has already fallen down. According to the learned counsel, this admission clearly describes, in brief, the overall dilapidated condition of the shop, as such exhausted bricks can give way any time and prove a life hazard, more particularly when admittedly the roof of verandah has already fallen down. ( 9 ) IN rejoinder, the learned counsel for the appellants contended that there is no finding recorded by the learned Courts below about the subletting being for consideration and the mere fact that the shop licence is in the name of the defendant No. 2, it cannot be said that he is the owner of the business establishment as the licence-holder need not necessarily be the owner. The learned counsel contended that there is nothing to show that exclusive possession was transferred to defendant No. 2 and there is no evidence about the alleged transfer being for consideration. ( 10 ) I have considered the rival submissions, have gone through the impugned judgments, so also the pleadings of the plaint and evidence of the parties as provided to me by the learned counsel for the appellants. ( 11 ) TAKING the question of subletting first, true it is that the pleadings contained in para 6 of the plaint, are not very meticulously drafted and happily worded, but then it does plead that the defendant No. 1 had taken the shop on rent, but he has further ("aage se Aage") given it to the defendant No. 2 Sumermal which is clearly violative of the terms and, therefore, the defendant No. 2 is being impleaded as defendant and the plaintiff is entitled to eviction. In my view, following the judgment of Honble the Supreme Court, relied upon by the learned counsel for the respondents, the pleadings of Muffasil (Munsif Headquarters, in the present case) need not be construed with that hypertechnical strictness, they are to be construed liberally and meaningfully with reference to the context. If so construed, it is clear that the pleading does amount to a pleading of subletting, in as much as, it has clearly been pleaded that the shop was taken on rent by the defendant No. 1 and, then, it has been pleaded that "parantu usne aage se aage Prativadi No. 2 Sumer Mal ko Saunp Rakhi Hai. If so construed, it is clear that the pleading does amount to a pleading of subletting, in as much as, it has clearly been pleaded that the shop was taken on rent by the defendant No. 1 and, then, it has been pleaded that "parantu usne aage se aage Prativadi No. 2 Sumer Mal ko Saunp Rakhi Hai. " This sentence of the pleading, obviously means that the shop has been further handed over to the defendant No. 2 in the same way "aage se Aage". This expression clearly comprehends that the way the defendant No. 1 had obtained the shop from the plaintiff, the same way it has been transferred ahead which logically means that the tenant has transferred his tenancy rights for consideration and, thus, is a pleading of subletting. It is in this sequence significant to note that the defendant never raised an objection about there being no pleading of subletting, rather issue No. 4 was framed and with full consciousness about the controversy involved in the suit being as to whether the defendant No. 1 has sublet the suit shop to defendant No. 2, the parties went to trial. Having read the statements of PW-1, PW-2, so also DW-1 and DW-2, it has become clear that the parties were fully alive to the controversy, inasmuch as, the plaintiff has led positive evidence about the defendant No. 1 having taken other shop from other person and having transferred the suit shop to defendant No. 2 for consideration. As against this, the defendant No. 1 has clearly attempted to lead evidence to the effect that it is he alone who is carrying on the business as usual in the suit shop and that the defendant No. 2 only helps him or is working together. It is a different story that the evidence of the defendant No. 2 is otherwise, but, then, the fact does remain that the parties have gone to trial with full awareness of the precise controversy and, thereby, simply because the finding has gone against the appellant, now, at this hour, the appellants cannot be allowed to raise the contention as taken. ( 12 ) IN this background, coming to the merits of the finding, having read the statement of PW-1, PW-2, so also DW-1 and DW-2, I am in perfect agreement with the findings recorded by the learned Courts below on the question of subletting. It is clearly established that though the two defendants are real brothers, but, then, they are living apart and the defendant No. 1 has already established his business in another shop having taken it on rent from Hansraj and has sublet the suit premises to the defendant No. 2 Sumermal. This subletting is for consideration as is established from the evidence of PW-1 and the admission made by the defendant No. 2 to DW-2 who has not, at all, been cross-examined on this part of his testimony. This coupled with the fact that the two defendants have given varying versions, contradicting each other establishes subletting. Suffice it to say that the transaction of subletting normally is between the tenant and sub-tenant to which the landlord is not a party and, therefore, more often he is not able to learn about the precise term of subletting and, therefore, once he is able to establish that the principal tenant has relinquished possession in favour of alleged sub-tenant, normally the burden shifts on the sub-tenant or the tenant to show that the transfer of possession is otherwise than by way of subletting and in the circumstances of the present case, where there is a positive admission of the sub-tenant about the transfer of possession to him being for consideration, this admission having been proved by the statement of PW-2 which has been believed by the learned Lower Appellate Court, it cannot be said that the finding on the question of subletting is vitiated or, is assailable within the framework of Section 100, CPC. ( 13 ) COMING to the question of the shop being unfit for human habitation, as pointed out above, that para 7 of the plaint is sufficient pleading as required by Section 13 (1) (k) of the Act and it has clearly been established from the evidence on record coupled with the admission of defendant No. 2 as pointed out above that the suit premises have become unfit for human habitation and are a constant life hazard. In such circumstances, the mere fact that the sub-tenant is carrying on the business in the suit shop, cannot be taken to be sufficient to negative the ground of eviction, the dangerous premises, may of course, be used, till they are pulled down or abandoned or till they fall down, but then from that it cannot be inferred that till they actually fall down, they continue to be fit for human habitation. In this view of the matter, the finding recorded by the learned Courts below on this aspect, also needs no interference. That apart, it may also be observed that even irrespective of this ground, since the subletting is clearly proved, and thus, even if the findings on this question are assailable in this second appeal, the appellants cannot get away from the decree of eviction. ( 14 ) CONSEQUENTLY, the instant second appeal has no force and is hereby dismissed summarily. In the circumstances of the case, at the request of the learned counsel for the appellants, the appellants are given six months time to vacate the suit shop on the condition that the defendants give an undertaking before the learned trial Court within one month from today that on or before expiry of the above period, they will peacefully hand over the vacant possession of the suit shop to the plaintiffs, and then during this period, they will not in any manner transfer the possession of the suit shop to anybody. Likewise, the entire decretal amount, so also all arrears of rent, if any, shall be deposited by the appellants in the trial Court within one month from today and further an amount equal to the monthly rent shall be continued to be deposited by way of damages for use and occupation by 15th of each succeeding month, till the actual delivery of possession. In case the appellants fail to comply with any of the above conditions, the plaintiff-respondents will become automatically entitled to execute the decree forthwith. Appeal dismissed.