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2001 DIGILAW 747 (PNJ)

Saran Singh Waryam Singh v. Panna Lal

2001-07-24

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. M/s. Saran Singh Waryam Singh has filed the present rent revision and it has been directed against the judgment dated 4.12.1981 passed by Appellate Authority, Amritsar, who affirmed the order dated 21.12.1979 passed by Shri Baldev Singh, Rent Controller, Amritsar, who allowed the application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as `the Act) filed by Panna Lal and ordered for the eviction of the present petitioner M/s Saran Singh Waryam Singh along with Jit Singh from the demised premises. 2. The brief facts of the case are that Panna Lal filed an ejectment application under Section 13 of the Act against Jit Singh alleging him as his tenant and M/s. Saran Singh Waryam Singh as sub-tenant by adding his brother Tara Chand, who was co-owner of the demised premises along with the petitioner. The case set up by the landlord in the Court of learned Rent Controller was that Jit Singh took on rent the demised premises from the applicant Panna Lal and respondent No. 3 w.e.f. 1.11.1957 vide rent note Ex.A1 at a monthly rental of Rs. 60/-. The tenancy was oral and accompanied by delivery of possession. In order to reduce the terms of the tenancy into writing a rent note was executed by Jit Singh in favour of the applicant and respondent No. 3 Tara Chand. The tenancy was terminated under Section 106 of the Transfer of Property Act vide notice dated 27.1.1975. According to the landlord the tenant and sub-tenant are liable to be evicted from the premises because Jit Singh has neither paid nor tendered the rent w.e.f. 7.6.1983; he has sublet the demised premises to M/s Saran Singh Waryam Singh without the written consent of the landlord and that the respondents have ceased to occupy the demised premises for a continuous period exceeding four months and the premises are lying locked and closed. 3. Notice of the rent petition was given to the respondent. It was only contested by respondent No. 2 M/s. Saran Singh Waryam Singh. Jit Singh and Tara Chand were proceeded ex parte. According to respondent No. 2, Jit Singh was never a tenant in the demised premises under the applicant and Tara Chand. He never came into possession of the demised premises. It was only contested by respondent No. 2 M/s. Saran Singh Waryam Singh. Jit Singh and Tara Chand were proceeded ex parte. According to respondent No. 2, Jit Singh was never a tenant in the demised premises under the applicant and Tara Chand. He never came into possession of the demised premises. The alleged rent note executed by Jit Singh in favour of Panna Lal and Tara Chand is a sham and fictitious document and is inadmissible in evidence. It is in fact respondent No. 2 i.e. the present petitioner, who is tenant in the demised premises from the very inception. It was let out at the instance of the applicant Panna Lal and his brother Tara Chand. Respondent No. 1 never inducted respondent No 2 as sub-tenant. Rather respondent No. 2 is a direct tenant under the landlords. Respondent No. 2 has never ceased to occupy the demised premises. Respondent No. 2 tendered the arrears of rent w.e.f. 7.6.1973 to 6.8.1975 along with interest and cost. 4. From the pleadings of the parties, learned Rent Controller framed the following issues:- "1. Whether the tenancy of respondent No. 1 has been terminated by a valid notice ? OPA 2. Whether tenancy between the petitioner and respondent No. 3 on the one hand and respondent No. 1 on the other is a sham and fictitious and whether respondent No. 2 is real tenant of the petitioner and respondent No. 3 ? OPR (Respondent No. 2). 3. Whether the respondent No. 1 and 2 have ceased to occupy the demised premises continuously for a period of more than one year ? OPA 4. Whether the respondents are liable to ejectment on the ground of non- payment of rent ? OPA 4-A. Whether the applicant alone has locus standi to file this application ? OPA 4-B. Whether respondent No. 1 has sublet the demised premises to respondent No. 2 without the written consent of the petitioner? If so its effect ? OPA 5. Relief." 5. The parties led evidence in support of their respective cases and on the conclusion of the proceedings the learned Rent Controller allowed the ejectment petition and directed respondent No. 2 to vacate the demise premises within two months from the date of the passing of the order dated 21.12.1979. 6. If so its effect ? OPA 5. Relief." 5. The parties led evidence in support of their respective cases and on the conclusion of the proceedings the learned Rent Controller allowed the ejectment petition and directed respondent No. 2 to vacate the demise premises within two months from the date of the passing of the order dated 21.12.1979. 6. Aggrieved by the order of the Rent Controller, the present petitioner filed an appeal before the Appellate Authority under Section 15 of the Act and vide judgment dated 4.12.1981 he dismissed the appeal for the following reasons as contained in paras 7 to 9 of the impugned judgment and gave two- month time to the petitioner to vacate the demised premises : "7. Ex.A1 is the rent note dated 1.12.1957 executed by Jit Singh in favour of the applicant and respondent No. 3. Its execution is proved by AW1 Harbhajan Singh deed writer and by Panna Lal applicant, Ex.RW3/X is another rent note dated 17.1.1958 executed by respondent No. 2 in favour of respondent No. 1 Jit Singh. There is no dispute regarding the execution of the said rent note. The allegation of the appellant is that the said rent note Ex.RW3/X is a sham and fictitious document. The learned counsel for the appellant as pointed out as was done before the Rent Controller certain circumstances to show the sham and fictitious nature of the rent note Ex.RW3/X. The said circumstances are being pointed out to vary and alter the character and contents of the said writing. The law does not permit such a course. In Ram Chander v. Mangal Singh and another, 1981(1) AIR 277 it was held that the provisions of Section 92 of the Indian Evidence Act forbid the executant of a rent note to lead evidence and point out the circumstances to show the sham nature of the rent note executed by him. The case in hand does not fall under any of the proviso to Section 92 and as such no evidence can be led or circumstances brought on the record to vary the terms of the rent note and to point out its sham nature. 8. It is not disputed that the rent note Ex.RW3/X was executed by the appellant in favour of the two landlords, petitioner and respondent No. 3. 8. It is not disputed that the rent note Ex.RW3/X was executed by the appellant in favour of the two landlords, petitioner and respondent No. 3. There is a specific recital in the said document that the appellant had taken the demised premises on rent from Jit Singh and occupied the same as a sub- tenant. Waryam Singh appearing as RW3 being the partner of the appellant firm admitted in his cross-examination that the premises were taken on rent at the rate of Rs. 60/- p.m. from Jit Singh respondent and the rent was credited in the personal account of respondent Jit Singh. The learned Rent Controller was justified in observing that the admissions made by Waryam Singh constituted good and sufficient evidence to show sub-tenancy of the appellant; he being tenant under the original tenant. Avtar Singh RW2 examined by the appellant firm also admitted that Jit Singh previously occupied the demised premises as a tenant. The evidence referred above fully establishes that the appellant firm had become a sub-tenant of the demised premises and occupied the same as such. 9. Coming to the circumstances pointed out by the learned counsel for the appellant depicting the sham and fictitious nature of the rent note Ex.A1, it is suffice to observe that the above circumstances are minor, immaterial and least significant. One of the circumstances pointed is that it was not believable that the tenant inducted a sub-tenant in the demised premises only after nine days of getting premises on rent. The learned Rent Controller has observed that from the two rent notes placed on the record it was evident that the sub-tenancy commenced after the lapse of one month and ten days of the tenancy in favour of the original tenant. Be that as it may, the fact that sub tenancy having been created some time immediately after creation of tenancy is not at all important. It is a transaction between a tenant and sub-tenant and can come into existence at any time convenient to two. The other circumstance is regarding the rate of rent charged by a tenant from a sub tenant as was payable by him to the landlords. Again there is nothing unusual about it. As observed above, it is the clandestine transaction between the tenant and the sub-tenant of the premises and the said agreements are of their choice. The other circumstance is regarding the rate of rent charged by a tenant from a sub tenant as was payable by him to the landlords. Again there is nothing unusual about it. As observed above, it is the clandestine transaction between the tenant and the sub-tenant of the premises and the said agreements are of their choice. Another circumstance pointed out is regarding inactivity and silence on the part of the landlords regarding the sub-tenancy inspite of their knowledge of the premises being occupied by a sub tenant. Needless to observe such acts do not constitute written permission of the landlord and cannot be pressed into service to stop the landlord from claiming ejectment of the tenant and the sub-tenant on the grounds of sub-tenancy. Reference has been made at the bar regarding the house tax assessment list in which the appellant has been shown to be a tenant in the demised premises. The said record does never prove the relationship of landlord and tenant and is maintained for purpose of collecting house tax from the owner or the occupier. The circumstances referred above as pointed out earlier are most insignificant and immaterial and do not at all point out regarding the sham and fictitious nature of the rent note Ex.A1. In fact as observed by me earlier, the appellant is estopped to lead evidence and point out circumstances to change the terms and vary the contents of the document Ex.RW3/X in view of the provisions of Section 92 of the Indian Evidence Act. I, therefore, endorse the findings of the Rent Controller on issue Nos. 2 and 4(B)." 7. Still not satisfied with the decisions of the Courts below, the present revision by M/s. Saran Singh Waryam Singh. 8. I have heard Mr. B.R. Mahajan, Advocate on behalf of the petitioner, Mr. D.R. Mahajan, Advocate on behalf of respondent No. 1 and with their assistance have gone through the records of this case. I am of the considered opinion that this revision is liable to succeed as both the Courts have committed patent illegality in appreciating the evidence led by the parties on the record. 9. The ejectment petition in this case was filed by Panna Lal on the grounds of non-payment of rent, subletting and cease to occupy. The only ground which was pressed during the course of arguments was with regard to subletting. 9. The ejectment petition in this case was filed by Panna Lal on the grounds of non-payment of rent, subletting and cease to occupy. The only ground which was pressed during the course of arguments was with regard to subletting. Para No. 6(ii) of the rent petition is as follows :- "That respondent No. 1 has sublet the demised premises to respondent No. 2 without the written consent of the petitioner. The respondent No. 2 is a transferee of lessee rights and is in exclusive possession of the premises." A reading of the above para would show that this is totally vague. The landlord did not dare to specify in this para from which date M/s Saran Singh Waryam Singh occupied the demised premises and when Jit Singh allegedly handed over the possession to the sub-tenant. It is true that sub-tenancy is a secret arrangement between tenant and sub-tenant but in the present case I would like to highlight a very vital fact that the business premises of the landlord is hardly at a distance of 10 shops from the demised premises and it cannot be inferred by any stretch of imagination that had there been any sub-tenancy between Jit Singh and M/s Saran Singh Waryam Singh, the fact of that sub- tenancy remained unnoticed by the petitioner. The case set up by the landlord is that the premises, in fact, was let out to Jit Singh and Jit Singh had parted the possession of the demised premises to M/s Saran Singh Waryam Singh. On the contrary, the stand of M/s Saran Singh Waryam Singh is that Jit Singh was a fictitious figure. He never got the possession of the demised premises from Panna Lal or his brother Tara Chand. In fact, M/s Saran Singh Waryam Singh was the tenant over the demised premises right from the very beginning and at no point of time Jit Singh came into picture. With this contention and counter-contention I have to examine the evidence. 10. First of all, I may examine the documentary evidence and the first document which I would like to discuss is rent note Ex.A1 which was executed between Jit Singh and Panna Lal and Tara Chand. This rent note was executed on 1.12.1957. As per this rent note the demised premises were allegedly taken on rent w.e.f. 1.11.1957 @ Rs. 60/- per month. This rent note was executed on 1.12.1957. As per this rent note the demised premises were allegedly taken on rent w.e.f. 1.11.1957 @ Rs. 60/- per month. Though it is written in the rent note that Jit Singh has taken the possession of the demised premises, but I am of the considered opinion that Jit Singh never took the possession. He near worked in the premises. No account books of Jit Singh have been produced to show that he ever started his business in the demised premises w.e.f. 1.11.1957. This document Ex.A1 is totally a sham document which has been created by the landlord and his own person Jit Singh so that in case of necessity the landlord may be able to get the premises vacated without any difficulty under the garb of sub-tenancy. There is one more rent note dated 17.1.1958. This rent note was between M/s Saran Singh Waryam Singh and Jit Singh and according to this rent note the demised premises was let out to the firm again on a monthly rental of Rs. 60/- per month w.e.f. 10.12.1957. It is strange that first rent note Ex.A1 was executed on 1.12.1957 and the second rent note Ex.RW3/X has been executed on 17.1.1958 and the tenancy started w.e.f. 10.12.1957. Had Jit Singh wanted to sublet the premises to M/s Saran Singh Waryam Singh, he would be the last person to execute the tenancy by writing. If he wanted to charge rent from M/s Saran Singh Waryam Singh, he would have asked for higher rent than the rent which he allegedly agreed to pay to Panna Lal and Tara Chand. Further, in order to execute the rent note Ex.A1 the stamp was purchased on 30.11.1957 and just after one day the rent note was executed. For the second rent note the stamp was purchased on 5.12.1957 and the rent note was executed on 17.1.1958. 11. The learned counsel appearing on behalf of the respondent submitted that in the rent note dated 17.1.1958 Ex.RW3/X it has been clearly mentioned by M/s Saran Singh Waryam Singh that it is occupying the premises by way of "Sikmi Kirayedar" (sub-tenant). No sane person will make an admission to that extent that he is occupying the premises by way of sub-tenant. No sane person will make an admission to that extent that he is occupying the premises by way of sub-tenant. There was hardly any necessity to make a mention of the word "Sikmi" This shows the anxiety of the landlord who wanted a categorical admission on the part of M/s Saran Singh Waryam Singh that it is occupying the property by way of sub-tenancy. At the most it is an admission on behalf of the firm which can always be proved erroneous. The basic point for determination in these circumstances would be if it is established on the record that M/s Panna Lal Tara Chand had delivered the actual physical possession to Jit Singh on 1.11.1957 and that Jit Singh occupied the premises and started his business and thereafter he parted the [possession of the demised premises or part thereof without the written consent of the landlord to M/s Saran Singh Waryam Singh, then alone the ejectment could be passed. Initial onus was always upon the landlord and in my opinion the landlord has failed to discharge the initial onus. The learned Rent Controller passed the ejectment mainly on two grounds - firstly, that in the rent note Ex.RW3/X there is an admission that it is occupying the premises in the capacity of sub-tenant; secondly, that it has been admitted by Waryam Singh that in the account books of the firm the rent has been credited in the personal account of Jit Singh. In my opinion, the learned Rent Controller has not gone in depth in appreciating the real contention. The sub-tenancy, as I have stated above, is nothing but parting the physical possession of the demised premises by a tenant to a third person against the written consent of the landlord. In this case the rent note Ex.RW3/X was executed between Jit Singh and M/s Saran Singh Waryam Singh. The learned Rent Controller ought to have examined this issue whether Jit Singh ever came into physical possession of the demised premises. If Jit Singhs possession was only on papers, then no reliance could be placed on rent note Ex.A1. Moment the rent Ex.A1 goes out of picture, the second rent note Ex.RW3/X comes into picture and the statement of Waryam Singh is categorical that Jit Singh never entered into possession and right from the day one the firm entered into possession which is a direct tenant under the landlord. Moment the rent Ex.A1 goes out of picture, the second rent note Ex.RW3/X comes into picture and the statement of Waryam Singh is categorical that Jit Singh never entered into possession and right from the day one the firm entered into possession which is a direct tenant under the landlord. Since a camouflage was managed by the landlord, therefore, the firm started crediting the amount of rent in the personal account of Jit Singh. People may tell lie but the circumstances will not. I have already given the facts that the first rent note was executed on 1.12.1957 and the second rent note was executed on 17.1.1958. In the second rent note the tenancy started w.e.f. 10.12.1957. It is not believable under these circumstances that sub-tenant was allegedly inducted just after 9 days of the original tenancy. The other circumstance which compels me to disbelieve the rent note Ex.A1 is that the rate of rent of both the tenancies is Rs. 60/- per month. It is further established that Jit Singh is not related with the petitioner. In these circumstances he would not sublet the premises at the same rental upon which he took the premises from the landlord. There is no electric connection in the name of Jit Singh. Account books of Jit Singh have not come on the record. No correspondence in the name of Jit Singh is coming. What type of business Jit Singh is doing is also not established. Moreover, the same person purchases the stamps for both the rent notes Ex.A1 and Ex.RW3/X. The name of Jit Singh does not figure in the house-tax assessment list. On the contrary, name of petitioner firm is mentioned in the record, an admission of the firm that it is occupying the demised. 12. Now the point which survives for determination is whether the civil Court can look into the oral evidence against the contents of the documents in view of Sections 91 and 92 of the Indian Evidence Act. This point was considered by the Honble Supreme Court in Smt. Gangabai v. Smt. Chhabubai : AIR 1982 SC 20 and it was observed as follows :- "The bar imposed by sub-sec. (1) of Section 92 applies only when a party seeks to reply upon the document embodying the terms of the transaction. This point was considered by the Honble Supreme Court in Smt. Gangabai v. Smt. Chhabubai : AIR 1982 SC 20 and it was observed as follows :- "The bar imposed by sub-sec. (1) of Section 92 applies only when a party seeks to reply upon the document embodying the terms of the transaction. In that event the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties." Relying upon the above judgment I am of the considered opinion that the oral evidence led by the petitioner is admissible to show that the rent note Ex.A1 was never intended to operate as an agreement. In Ghisa Ram Gupta v.Meeran Devi, 1994(1) RCR 499, it was observed in paras 5 and 6 of the judgment as follows :- "5. Having heard the learned counsel for the parties, I am of the view that there is no merit in the revision petition. Petitioner in his ejectment petition, claimed respondent No. 1 to be tenant, on the basis of rent-note dated 5.1.1981. In order to prove the said rent-note, one Sheo Chand, an attesting witness to that rent-note, was examined. The Rent Controller as well as the Appellate Authority had disbelieved the said witness, and held that the rent note by respondent No. 1 in favour of the petitioner is a fake document. Learned counsel for the petitioner has not been able to point out any other evidence which would show that there is a relationship of landlord and tenant between the petitioner and respondent No. 1. Learned counsel for the petitioner has not been able to point out any other evidence which would show that there is a relationship of landlord and tenant between the petitioner and respondent No. 1. The only relationship with respondent No. 1, the petitioner has been able to establish is that of father-in-law. Respondent No. 2 is liable to be ejected only if the petitioner can establish on record that there is a relationship of landlord and tenant between him and respondent No. 1, who in turn sublet the premises to respondent No. 2. This, of course, he has failed to establish by any clinching or cogent evidence. It has also come on record that during the pendency of this very ejectment petition, respondent No. 1 had filed as many as three ejectment petitions against respondent No. 2 for claiming rent. In all those proceedings, the rent was tendered on the first date of hearing. So much so, in one petition, i.e. ejectment petition No. 56/85, on the first date of hearing, when the rent was to be tendered, it was pointed out by respondent No. 2 that the petitioner and husband of respondent No. 1 are present in the Court along with respondent No. 1. This was explained by the counsel for respondent No. 1 by stating that they had come to the Court in connection with some other case. This is apparent from R-3, statement made by the counsel in that case. Thus, from the aforesaid circumstances, it is quite clear that the rent-note, set up by the petitioner, alleged to have been executed in his favour by his daughter-in-law is nothing but a camouflage. The judgments rendered in Rajiv Paul Singh v. Mehanga Ram, 1984(1) RCR 329, Prem Kumar Aggarwal v. Yash Paul and others, 1985(2) RCR 450 (P&H) : 1985(1) PLR 525, and M/s Bhalle Singh Subhash Chand v. Ravi Datt and others, 1986 (SUP) RCR 3 (P&H) : 1985(1) PLR 562, relied upon by learned counsel for the petitioner, have no application to the facts of the present case. In these cases, the sub-tenant had claimed himself to be direct tenant and having failed to establish tenancy, was ordered to be ejected on the ground of sub-letting. In the present case, case already noticed, this is not the case. In these cases, the sub-tenant had claimed himself to be direct tenant and having failed to establish tenancy, was ordered to be ejected on the ground of sub-letting. In the present case, case already noticed, this is not the case. The petitioner having failed to established the relationship of landlord and tenant, is not entitled to succeed and, therefore, finding of the Courts below calls for no interference. 6. Faced with this situation, Mr. Jain, counsel for the petitioner, contended that the Courts below ought to have passed an order of ejectment against respondent No. 1, from the house in her possession as she had admitted the grounds of ejectment. I am not prepared to accept this contention also. The ejectment was sought only on the ground of sub-letting and no other ground. Since the petitioner has failed to prove relationship of landlord and tenant, he cannot succeed even against respondent No. 1" 13. Recently, the Honble Supreme Court in Iswar Dass Jain (dead) through LRs. v. Sohan Lal (dead) through LRs., 1999(2) RCR(Rent) 714 (SC) : (2000-2) 125 P.L.R. 56 has held that oral evidence to prove that a document though executed is a sham document is permissible. Reliance can always be placed on Bhargavi Amma v. Parukutty Amma, 2000(1) RCR (Civil) 545 where similar observation was made by the Honble Judge of the Kerala High Court. 14. Thus, from the above it can be safely concluded that the rent note Ex.A1 was a sham document. Jit Singh never got the possession of the property. In fact, it was a direct tenancy between the landlord and the present petitioner vide rent note Ex.RW3/X. The rent has been tendered by the present petitioner. 15. Reverting to the reasons given by the Appellate Authority in the impugned judgment, I am of the opinion that those reasons are again faulty. I have already stated above that the relationship of tenant and sub-tenant is a secret arrangement which is invariably made at the back of the landlord. But in the present case it is abundantly clear without any difficulty that the first rent note was only a paper and sham transaction when Jit Singh, a man of convenience, was introduced by the landlord and thereafter the landlord introduced M/s Saran Singh Waryam Singh as a tenant styling it as a sub- tenancy which was not a fact. But in the present case it is abundantly clear without any difficulty that the first rent note was only a paper and sham transaction when Jit Singh, a man of convenience, was introduced by the landlord and thereafter the landlord introduced M/s Saran Singh Waryam Singh as a tenant styling it as a sub- tenancy which was not a fact. Rather, M/s Saran Singh Waryam Singh was a direct tenant right from the very beginning. It never committed a default in the payment of arrears of rent. It had not parted the possession of the demised premises or part thereof. When both the Courts have committed an error in the appreciation of evidence, the revisional Court could always come forward to protect the rights of the tenant. In this view of the matter, I have come to the conclusion that the landlord has not been able to make out a case of sub-tenancy. The rent petition was vague. Jit Singh was never inducted as a tenant, therefore, the question of sub-tenancy does not arise. I allow this revision set aside the judgments of the Courts below and dismiss the petition under Section 13 of the Act. No order to costs.