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2003 DIGILAW 161 (PNJ)

Sher Singh v. Chandu Lal

2003-01-29

K.C.GUPTA

body2003
Judgment K.C.Gupta, J. 1. This revision is directed by Sher Singh, tenant, against judgment dated 31.1.1986 passed by the Appellate Authority, Hisar, whereby his appeal was dismissed and the judgment dated 31.8.1985 passed by the Rent Controller, Hisar, vide which the petitioner and respondent No.2 were ordered to be ejected from the demised premises, was maintained. 2. Briefly stated, the facts are that Chandu Lal, respondent No.1, is the landlord of the demised premises. He had let out the said premises to the petitioner, Sher Singh at a monthly rent of Rs.35/- plus house tax. However, the petitioner had further sublet the demised premises to respondent No.2, Shiv Kumar, without the consent of the landlord and had not paid the arrears of rent since 15.10.1980. It was also alleged that respondent No.2 had been indulging in gambling and was a source of nuisance to the neighbours and further had impaired the value and utility of the demised premises. With these allegations, petition for ejectment was filed. The petitioner contested the petition and filed written reply dated 17.3.1982. He stated that he and respondent No.2, Shiv Kumar, were father and son and were members of joint Hindu family and they had been running the shop from the very beginning and there was no question that he had sublet the demised premises to respondent No.2, Shiv Kumar. He further stated that he had gone several times to respondent No.1 to hand over the rent besides house tax but the same had not been accepted. He next denied that respondent No.2 was indulging in gambling or was a source of nuisance to the neighbours. Respondent No.1 filed rejoinder in which he re-affirmed his claim as stated in the petition. 3. Accordingly, the following issues were framed on 22.5.1982:- 1. Whether the respondent No. 1 has sublet the shop in question to respondent No.2 if so, its effect? OPA 2. Whether the respondent No.2 indulges in illegal activities and creates nuisance for the other habitants of the locality? OPA 3. Whether the respondents have materially impaired the value and utility of the property in question by their unauthorised and illegal use? OPA 4. Whether the present application is bad for want of service of the notice under Section 106 T.P. Act? OPR 5. Relief. The parties adduced their evidence. OPA 3. Whether the respondents have materially impaired the value and utility of the property in question by their unauthorised and illegal use? OPA 4. Whether the present application is bad for want of service of the notice under Section 106 T.P. Act? OPR 5. Relief. The parties adduced their evidence. 4 After hearing counsel for the parties and perusing the evidence, the Rent Controller, vide his order dated 31.8.1985, accepted the petition and passed the order of ejectment in favour of respondent No.1 and against the petitioner and respondent No.2 and directed them to hand over the vacant possession of the demised premises on or before 31.10.1985, by holding under issue Nos.1 and 2 that the petitioner and respondent No.2 were not members of joint Hindu family and in fact, the petitioner had sublet the demised premises to respondent No.2 and further respondent No.2 was indulging in gambling in the demised premises as he was convicted under Section 13-A of the Gambling Act by the then Judicial Magistrate 1st Class, Hisar, vide her judgment dated 4.8.1983. Further Ex.P4 is copy of the site plan of that case, which shows that respondent No.2 was indulging in gambling adjacent to the shop in dispute. However, it was held that there is no evidence or proof that the value or the utility of the demised premises had been impaired by respondent No.2. Consequently, issue Nos.1 and 2 were decided in favour of respondent No.1 and issue No. 3 was decided against respondent No.1. Under Issue No.4, it was held that petition is not bad for want of service of notice under Section 106 of the Transfer of Property Act. 5. Aggrieved by the said order, Sher Singh, filed an appeal, which was dismissed by the Appellate Authority vide order dated 31.1.1986, by holding that it has been proved on file that Shiv Kumar, respondent No.2, was in exclusive possession of the demised premises and the petitioner, Sher Singh, tenant, was running another shop for grinding Haldi, Masala etc. in other locality i.e. Mohalla Kasaban and, therefore, sub-letting was clearly proved. However, it was held that it was not proved on file that respondent No.2 was a source of nuisance to his neighbours. 6. Still dissatisfied, Sher Singh, tenant, has filed the present revision petition. 7. I have heard Mr. V.K. Jain, Sr. Advocate with Mr. in other locality i.e. Mohalla Kasaban and, therefore, sub-letting was clearly proved. However, it was held that it was not proved on file that respondent No.2 was a source of nuisance to his neighbours. 6. Still dissatisfied, Sher Singh, tenant, has filed the present revision petition. 7. I have heard Mr. V.K. Jain, Sr. Advocate with Mr. Raman K. Sharma, Advocate, for the petitioner, Mr. M.L. Sarin, Sr. Advocate with Ms. Alka Sarin, Advocate, for the respondents and carefully gone through the record. 8. The allegation of respondent No.1, Chandu Lal, landlord, is that he had rented out the demised premises to the petitioner, Sher Singh at a monthly rent of Rs. 35/- besides house tax but he had sublet the same to his son, Shiv Kumar and he himself had installed a Chakki for grinding Haldi, Masala etc. in Mohalla Kasaban. It was also claimed that petitioner had not paid rent from 15.10.1980 besides house tax @ Rs.35/-per month upto date and further Shiv Kumar, respondent No.2, was indulging in gambling in demised premises and was a source of nuisance to the neighbours. It was next claimed that the petitioner had caused damage to the value and utility of the demised premises by damaging its floors and walls and further he was not a good tenant. However, at this stage, only one ground survives as to whether the petitioner had sublet the demised premises to his son, Shiv Kumar, respondent No.2. In order to prove the ground of sub-letting, respondent No.1 had examined, PW-1 Sardara, PW-2 Muni Lal besides his statement as PW-3. PW-1 Sardara stated that he had seen the demised premises and at present, Shiv Kumar, who is son of Sher Singh, is running the shop in it while Sher Singh was sitting in another shop in a different locality and he had installed a Chakki for grinding chillies and Haldi etc. He next stated that Shiv Kumar was running a shop for preparing tea etc. and he also indulged in gambling in it and due to this reason, dispute had taken place several times. He further stated that Shiv Kumar and his father resided separately. In cross-examination, he stated that the shop in dispute was not given on rent by Chandu Lal to Sher Singh in his presence and the petitioner and respondent No.2 had never paid the rent to respondent No.1 in his presence. He further stated that Shiv Kumar and his father resided separately. In cross-examination, he stated that the shop in dispute was not given on rent by Chandu Lal to Sher Singh in his presence and the petitioner and respondent No.2 had never paid the rent to respondent No.1 in his presence. He further stated that he never visited the shop of Shiv Kumar for the purpose of gambling. He denied the suggestion that Shiv Kumar and Sher Singh used to sit together in the demised premises. PW-2 Muni Lal stated that he had seen the demised premises. Earlier Sher Singh used to sit in it but then Shiv Kumar started sitting in it and Sher Singh had installed a Chakki in Mohalla Kasaban. He further stated that Shiv Kumar was running a tea shop in the demised premises and also indulge in gambling. Further stated that the persons who indulge in gambling and take liquor also visited Shiv Kumar. In cross-examination, he stated that he was not present when the demised premises was given on rent to Sher Singh but admitted that Shiv Kumar was son of Sher Singh. He further stated that Shiv Kumar and Sher Singh sit at different places. He next stated that when Sher Singh used to sit in the demised premises, then his son did not visit him. PW-3 Chandu Lal stated that he had given the demised premises on rent to Sher Singh about 15-16 years ago vide rent note, which was scribed by Ram Partap, Petition Writer. He next stated that he had seen the original rent note, Ex.P1, which was scribed by him and attested by Molu Ram, Sarpanch. He farther stated that rent note was read over to Sher Singh and he had signed it after admitting it to be correct and further Ex.P-2 is the site plan of the demised premises. He next stated that for the last 3-4 years, the demised premises was in possession of Shiv Kumar, who used to sit there and he was running a shop for selling tea and also indulged in gambling. He next stated that for the last 3-4 years, the demised premises was in possession of Shiv Kumar, who used to sit there and he was running a shop for selling tea and also indulged in gambling. He further stated that Sher Singh was not running any business in the demised premises and he also did not sit in it but he was running a shop and had installed a grinding machine for grinding Masala in Gobindgarh Bazar, Mohalla Kasaban and he had taken the said shop on rent from Pyare Lal Mangali Wale. In cross-examination, he stated that he had let out the demised premises to Sher Singh in the year 1966-67. He further stated that his another shop was at a distance of 500 Yards from the demised premises, which is in possession of Shiv Kumar but his house was situated nearby. He next stated that he had not seen Sher Singh sitting in the demised premises for the last 4 years and further they resided separately. 9. A perusal of rent note, Ex.P1, shows that the petitioner had taken the demised premises on rent for doing business by himself on 18.10.1967 at monthly rent of Rs. 30/- alongwith house tax and had agreed not to sublet the same to any person. The said rent note is dated 16.10.1967. Ex.P2 is the site plan of the demised premises. Ex.P-5 is the summons which was issued to Sher Singh on his address situated at Mohalla Kasaban, near Gobindgarh Bazar and he was served there for 15.2.1983 in the present petition. Similarly, vide summons, Ex.P-6, Shiv Kumar was served in the Street Chabil Dass, Near Delhi Gate, Hisar. This is the address of the demised premises. So, he was served on the demised premises. This fact clearly roves that at present the shop in dispute is in possession of Shiv Kumar and his father Sher Singh, petitioner, is running a separate shop and has installed a grinding machine for grinding Masala etc. in Mohalla Kasaban, near Gobindpura, Hisar. Admittedly, their ration cards are separate. This fact proves that petitioner, Sher Singh and his son, Shiv Kumar, are not residing together but are residing separately. If they had been residing together and were members of joint Hindu Family, then their ration card would have been one and not separate. in Mohalla Kasaban, near Gobindpura, Hisar. Admittedly, their ration cards are separate. This fact proves that petitioner, Sher Singh and his son, Shiv Kumar, are not residing together but are residing separately. If they had been residing together and were members of joint Hindu Family, then their ration card would have been one and not separate. RW-1 Sher Singh, petitioner, stated that Shiv Kumar, respondent No.2, was his son and he resided with him. He further that they were joint in mess and business. He next stated that he also used to sit in the demised premises alongwith his son. Further stated that he met with an accident in 1972. He further stated that he was joint with his sons, except Naranjan, who was separate from him. He denied that he had sublet the demised premises to his son, Shiv Kumar. In cross-examination, he admitted that the rent note was executed by him but stated that the same was got executed by respondent No.1, Chandu Lal, by practising fraud. Certainly, this fact cannot be read into evidence because it is not the case of the petitioner in his written reply that the rent note, Ex.P1, was got executed from him practising fraud by Chandu Lal, respondent No. 1. He admitted that all his sons had got separate ration cards. Further stated, that his ration card was separate from the ration card of Shiv Kumar. He also stated that his son Bir Bhan had installed a Chakki in Village Talwandi and he had got a separate ration card. He further stated that his son, Roshan Lal, was running a shop where he had installed a Chakki for grinding Haldi and Masala etc. In Mohalla Kasaban and the said shop was owned by Pyare La! but denied that he had taken the said shop on rent from Pyare Lal. The petitioner has not examined Pyare Lal to prove that the shop situated in Mohalla Kasaban was not let out to him but to his son Roshan Lal. Even Roshan Lal has not been examined to prove that he was running the shop situated in Mohalla Kasaban and his father was running the said shop but he off and on visited that shop. He next stated that he visited the demised premises daily. To the same effect is the statement of RW-2 Shiv Ku-mar. Even Roshan Lal has not been examined to prove that he was running the shop situated in Mohalla Kasaban and his father was running the said shop but he off and on visited that shop. He next stated that he visited the demised premises daily. To the same effect is the statement of RW-2 Shiv Ku-mar. However, in cross-examination, he admitted that all the brothers did not hand over their income to their father and they had got separate ration cards. The very fact that they had got separate ration cards and kept their income and did not hand over the same to their father, suggests that they are not members of joint Hindu family but they are separate. RW-3 Mange Ram stated that Sher Singh and his son Shiv Kumar resided together and they were joint in mess and residence and they also carried on business together. In cross-examination, he stated that Sher Singh, petitioner, did not carry on any business in Mohalla Kasaban and there was no shop for grinding Haldi and Masala. He has totally told a lie. It is admitted by the petitioner that there is a shop in Mohalla Kasaban where Chakki had been installed for grinding Masala etc. but the same has been installed by his son, Roshan Lal. He next stated that he did not know whether Shiv Kumar and Sher Singh resided together or separately. RW-4 Ved Parkash stated that he had seen the demised premises which is situated near his shop and the petitioner and his son were carrying on business there together and were joint in mess and lived in the same house. In cross-examination, he stated that he had been suspended by the Municipal Committee, Hissar, from service. He denied the suggestion that he was suspended as he created nuisance after taking liquor. He expressed his ignorance if Sher Singh, petitioner, had been running a shop for grinding Masala etc. in Mohalla Kasaban. Again this witness had told a lie. Moreover, he had been suspended on account of mis-conduct and as such, much reliance cannot be placed on his testimony. 10. The petitioner and Shiv Kumar, respondent No.2, are father and son. There cannot be any direct evidence to say that Sher Singh had sublet the demised premises to Shiv Kumar or Shiv Kumar was paying so much rent to his father Sher Singh. 10. The petitioner and Shiv Kumar, respondent No.2, are father and son. There cannot be any direct evidence to say that Sher Singh had sublet the demised premises to Shiv Kumar or Shiv Kumar was paying so much rent to his father Sher Singh. It had to be inferred from the circumstances of the case. It was not the case of the petitioner in his written statement that the shop, which was situated in Mohalla Kasaban, was being run by his son, Roshan Lal and he had not sublet the demised premises without the consent of Chandu Lal to his son and he had installed any Chakki in Mohalla Kasaban. Although he had denied in the written reply that he had not sublet the demised premises to his son, Shiv Kumar and there was no question of sub-letting as they were father and son and members of joint Hindu family and they were joint in mess and business but the facts shows otherwise that they were living separately and have got separate ration cards and are running their business separately. The very fact that notices of both of them had been served at different shops, suggest that they are running business separately. The petitioner had not specifically denied the allegations as stated in Para 3 (ii) of the petition to the effect that the petitioner had sublet the demised premises without the consent of the landlord to respondent No.2 and he himself had installed a grinding machine for grinding Haldi, Masala etc. in Mohalla Kasaban but simply stated that he had not sublet the demised premises to respondent No.2. The voters list and municipal record have not been placed on record to prove the fact that they are residing together. 11. Both the Courts below have categorically held that the petitioner has sublet the demised premises to his son, respondent No.2, who is in exclusive possession of the demised premises. It has been observed by this Court in Dr. Ashok Kumar Thapar v. Amrit Lal and Ors., (1998-2)119 P.L.K. 716 that the revisional jurisdiction cannot be equated with a fulfledged appeal. High Court cannot reappraise the evidence and dislodge the concurrent findings in its revisional jurisdiction. However, when there is misreading of evidence or same are absurd or erroneous, the High Court will not restrict itself in interfering in the same. High Court cannot reappraise the evidence and dislodge the concurrent findings in its revisional jurisdiction. However, when there is misreading of evidence or same are absurd or erroneous, the High Court will not restrict itself in interfering in the same. In the present case, it is not proved on file, as discussed above, that there is misreading of evidence or findings are absurd or erroneous. It has been observed by this Court in Smt. Sita Devi v. Chaman Lal and Anr., 1984(2) Rent Control Reporter 635 that where the tenants father was running the shop in the premises and the tenant had failed to prove that business of father was joint with him, then the only inference is that it is subletting. In the present case, it is otherwise. The demised premises were let out to the father i.e. the petitioner and at present his son, Shiv Kumar, is running a shop in the demised premises and the petitioner has failed to prove that his business is joint with his son and the only infererence is that the petitioner has sublet the same to his son, It has been observed by the Honble Apex Court in Bharat Sales Ltd v. Life Insurance Corporation of India, A.I.R. 1988 S.C. 1240 that sub-letting cannot be proved by direct evidence and court can draw inference upon the facts proved at the trial including the delivery of possession to infer that the premises were sublet. The authority Sumitra Singh v. Nahar Singh, 1984(1) R.C.R. 633 cited by learned counsel for the petitioner to contend that the petitioner had allowed his son to help him in business but of love and affection and had not sublet the demised premises, is not applicable to the facts of the present case because in the present case, the petitioner had abandoned his possession and handed over the same to his son. Similarly, the authority Lajwanti and another v. Daulat Ram, (1990-2)98 P.L.R. 426 is not applicable to the facts of the present case. In the said case, the tenant had allowed his son in law to live with him in a separate portion and he was having separate ration card. It was inferred that there was no subletting because it was normally in the era of shortage of accommodation, the in-laws allowed their daughter and son in-law to stay with them. In the said case, the tenant had allowed his son in law to live with him in a separate portion and he was having separate ration card. It was inferred that there was no subletting because it was normally in the era of shortage of accommodation, the in-laws allowed their daughter and son in-law to stay with them. In similar circumstances, this Court in Lal Singh v. Ashok Kumar, (2000-1)124 P.L.R. 44 held that there was sub-letting as the son had sublet the premises to his father and father was doing business independently and it was not proved that the business was joint. In the present case also, no account books have been produced on file to prove that the petitioner and his sons constitute a joint Hindu family and they were maintaining a joint account. On the other hand, it is in evidence that they were not handing over their income to their father. Hence, I hold that it is conclusively proved on file that the petitioner had sublet the demised premises to his son, Shiv Kumar, respondent No.2, who is running business of preparation of tea etc. at present and the petitioner is not in possession of the same. 12. Hence, the revision petition is dismissed. However, the petitioner and respondent No.2 are allowed two months time to vacate the demised premises.