Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 286 (PNJ)

Girdhari Lal v. Baljit Singh

2003-02-14

R.L.ANAND

body2003
Judgment R.L.Anand, J. 1. This is a rent revision and has been directed against the judgment dated 15.3.2001 passed by the Appellate Authority under the East Punjab Urban Rent Restriction Act (Act No. 3 of 1949) filed by Girdhari Lal whereby the learned Appellate Authority affirmed the order of the learned Rent Controller dated 18.12.1999 and order the ejectment of Girdhari Lal from the demised premises. 2. It may be mentioned here that this civil revision was earlier disposed of by this Curt vide order dated 20.11.2001 and the same was dismissed by holding that the tenant be granted one-month-time to vacate the demised premises. At that stage the learned counsel appearing on behalf of the tenant did not co- operate with the Court and as the opposite counsel was insisting for the disposal of the revision, therefore, the same was rejected. 3. The petitioner was not satisfied with the order of the High Court and he filed Civil Appeal No. 75 of 2003 before the Honble Supreme Court which set aside the order of the High Court and gave directions to re-hear the civil revision and decide the same in accordance with law. 4. In pursuance of the directions of the Honble Supreme Court I am disposing of this civil revision after hearing the learned counsel for the parties who addressed argument at some length. 5. The ejectment petition was filed by Baljit Singh through his attorney Jaswant Singh Jandu and Jasbinder Singh Bhogal son of Baljit Singh against Girdhari Lal and Smt. Gurdip Kaur under Section 13 of the of the above-said Act seeking ejectment of Girdhari Lal from a part of property No. 5446-47/1 situated opposite Vishavkarma Mandir, Lahori Gate, Patiala bounded as follows :- East : Shop of Anand Bakery. West : Part of house owned and possessed by the petitioners. North : House of Arru Ram. South : Road. 6. The case set up by the petitioners before the Rent Controller was that the demised premises form part of property No. 5746-47/1, situated opposite Vishvakarma Mandir, Lahori Gate, Patiala. Earlier Pritam Singh and Hakikat Singh sons of Thakur Singh were the owners to the extent of 1/2 share each of the property in dispute. South : Road. 6. The case set up by the petitioners before the Rent Controller was that the demised premises form part of property No. 5746-47/1, situated opposite Vishvakarma Mandir, Lahori Gate, Patiala. Earlier Pritam Singh and Hakikat Singh sons of Thakur Singh were the owners to the extent of 1/2 share each of the property in dispute. Said Pritam Singh died leaving behind petitioner No. 1 as his son and legal heir which was so held by the court of Shri K.S. Bhullar, the then Sub Judge, Patiala vide judgment dated 30.4.1988. The other co-owner Hakikat Singh died leaving behind a son Gurdip Singh and widow Nasib Kaur, who sold their share in the property in question to petitioner No. 2 Jasbinder Singh Bhogal and respondent No. 2 Gurdip Kaur through Ashwani Kumar, who was the caretaker, vide sale deed dated 10.9.1986. It is alleged by the petitioners that Swaru Ram alias Swaru initially was the tenant of aforesaid Pritam Singh and Hakikat Singh in the premises in question on a monthly rental of Rs. 5 and after the death of Swaru Ram the present petitioner Girdhari Lal inherited the tenancy rights and he became the owner of the demised premises under the petitioner and respondent No. 2. The ejectment has been sought against Girdhari Lal on the grounds that he has neither paid nor deposited the arrears of rent to petitioners and respondent No. 2 since 10.9.1986 and that the premises in dispute have become unfit and unsafe for human habitation. 7. Notice of the rent petition was given to respondent No. 1 who filed the written reply and denied the averments of the petition by stating that the property in dispute does not form part of property No. 5646-47/1 and Pritam Singh and Hakikat Singh were not the owners of the same. It was further stated that Pritam Singh had left a son namely Baljit Singh. The property in question was his ownership and it is his ancestral property. The ancestors of answering respondent were earlier in possession of the property and, thereafter, respondent No. 1 is in possession as owner exclusively to the exclusion of everybody including the petitioners and he is in possession of the demised premises continuously for the last 50 years. So much so he has become the owner by way of adverse possession. The ancestors of answering respondent were earlier in possession of the property and, thereafter, respondent No. 1 is in possession as owner exclusively to the exclusion of everybody including the petitioners and he is in possession of the demised premises continuously for the last 50 years. So much so he has become the owner by way of adverse possession. The averments regarding the sale of property have also been disputed. It was further stated that Ashwani Kumar is a junior of Balwant Singh Jandhu, Advocate of Patiala, Jaswant Singh Jandhu is the real brother of Balwant Singh Jandhu. The alleged power of attorney of Baljit Singh in favour of Jaswant Singh Jandhu is wrong. The petitioners are the close relative of Balwant Singh Jandhu, Advocate and this petition has been filed in order to grab the property of respondent No. 1. There is no liability of respondent No. 1 to pay the arrears of rent to anybody. While denying the other averments the respondent No. 1 prayer for the dismissal of the rent petition. 8. Respondent No. 1, however, filed a separate written statement and admitted the averments of the rent petition. 9. From the pleadings of the parties, the learned Rent Controller framed the following issues :- "1. Whether there exist a relationship of landlord and tenant in between the parties ? OPA 2. Whether the respondent are in arrears of rent as alleged, if so, its effect ? OPA 3. Whether the respondents No. 1 is owner of the demised premises ? OPR 4. Whether the demised premises are unsafe and unfit for human habitation and respondent is liable to be evicted ? OPA 5. Relief." 10. The parties led oral and documentary evidence in support of their respective cases and finally while deciding issues No. 1 and 3 the learned Rent Controller after discussing in depth came to the conclusion that there existed relationship of landlord and tenant between the petitioners and respondents and since respondent No. 1 had neither paid nor deposited the arrears of rent as claimed by the landlord at the time of first hearing of the case, resultantly the tenant is liable to be ejected from the demised premises. Issue No. 2 was also decided in favour of the petitioners. Issue No. 4 was decided against the petitioners. Issue No. 2 was also decided in favour of the petitioners. Issue No. 4 was decided against the petitioners. In view of the findings given by the Rent Controller ejectment order was passed against the respondent No. 1 who was directed to vacate the demised premises and to hand over the vacant physical possession of the demised premises to the petitioners within three months from the date of the passing of the order i.e. 18.12.1999. 11. Aggrieved by the order of the Rent Controller, Girdhari Lal filed first appeal under Section 15 of the said Act before the Appellate Authority, Patiala, who dismissed the appeal along with the application under Order 41 Rule 27 C.P.C. vide impugned judgment dated 15.3.2001. Aggrieved by the said judgment and order, the present civil revision. 12. I have heard Mr. K.S. Dadwal, Advocate for the petitioner, Mr. Arun Palli, Advocate for the respondents and with their assistance have gone through the records of the case. 13. The first contention raised by the learned counsel for the petitioner is that the learned Appellate Authority was not justified in declining the application under Order 41 Rule 27 C.P.C. as the tenant wanted to show that the copy of the house-tax assessment register of Municipal Committee, Patiala Ex. A4 is not a genuine document. He submitted that this is a material document on which both the courts have relied upon and once it is established that this document is not a genuine one, then there is no other evidence to prove on record the relationship between landlord and tenant. On the contrary, the learned counsel for the respondents submitted that this was a delaying tactics which was being performed by the tenant. The ejectment petition was filed against Girdhari Lal in the year 1990 and it took 9 years for the Rent Controller to decide the ejectment petition on 18.12.1999. The document was produced and proved according to law. It is a genuine one and is an admissible piece of evidence prepared under the statutory jurisdiction of Punjab Municipal Act. At no point of time it was ever objected to that it was forged. The tenant had the ample opportunity to rebut the document. Now he waited to file the application for leading additional evidence before the Appellate Authority just to delay the proceedings and, therefore, it has been rightly rejected. 14. At no point of time it was ever objected to that it was forged. The tenant had the ample opportunity to rebut the document. Now he waited to file the application for leading additional evidence before the Appellate Authority just to delay the proceedings and, therefore, it has been rightly rejected. 14. There is a merit in the contentions raised by the learned counsel for the respondents, because the ejectment petition was filed on 18.1.1990, it was decided on 18.12.1999. The parties were aware about the case. It was the specific case of the petitioners that they have becomes the landlords and owners of the property by virtue of inheritance and purchase. It was also the case of the petitioner that the tenancy in favour of the father of the respondent was an oral one coupled with the delivery of the possession and after the death of Swaru Ram, Girdhari Lal became the tenant as the tenancy was heritable. The landlords led the oral evidence and to corroborate their oral evidence they placed on record copy of the house-tax assessment register Ex. A4 in which the father of Girdhari Lal has been shown as a tenant occupying the demised premises. Under Order 41 Rule 27 C.P.C. the additional evidence whether oral or documentary cannot be produced as a matter of right. But, of course, such additional evidence can be taken into consideration if the Appellate Authority comes to the conclusion that the proposed additional evidence ought to have been admitted by the trial Court or the party seeking to produce additional evidence establishes that after due diligence he could not produce that evidence or it was not to his knowledge. Yet for another reason, the Appellate Court can take the additional evidence if it enables it to pronounce judgment or for any other substantial cause. When the copy of the house-tax assessment register Ex. A4 was produced before the Rent Controller, at that stage the objection could be taken that this document is a forged one. When the case was fixed for rebuttal evidence even at that stage the tenant could prove that Ex. A4 is not a genuine document, the tenant was allowed sufficient opportunities before the Rent Controller to lead evidence. When Ex. A4 was produced, the tenant did not question the genuinity or authenticity of this document. When the case was fixed for rebuttal evidence even at that stage the tenant could prove that Ex. A4 is not a genuine document, the tenant was allowed sufficient opportunities before the Rent Controller to lead evidence. When Ex. A4 was produced, the tenant did not question the genuinity or authenticity of this document. In this view of the matter, the learned Appellate Authority was justified to decline the application under Order 41 Rule 27 C.P.C. Even under Section 15 of the East Punjab Urban Rent Restriction Act, 1949 the Appellate Authority has the power to call for the parties to lead additional evidence but by not doing so it has not committed any illegality. The tenant closed the evidence on 10.12.1999. Several opportunities were granted to the tenant to lead the evidence in rebuttal. Therefore, there is no merit in the first contention raised by the learned counsel for the petitioner. 15. It was then submitted by the learned counsel for the petitioner that there is no evidence on the record to suggest that the petitioner is a tenant in the demised premises. In the absence of relationship of landlord and tenant, the ejectment application could not succeed. Mr. Dadwal also submitted that the copy of the house-tax assessment register does not create a relationship of landlord and tenant as held in Amar Nath v. Som Nath (Deceased) by his Legal representatives Smt. Kushalya and others, 1982(1) R.C.R. 457, Raj Kumar v. Hardit Singh (Deceased) represented by his LRs., 1994(1) RRR 235, Jagan Nath v. Smt. Shanti Devi, 1976 RCR 341. There is no dispute with the proposition of law that the entry of house-tax assessment register itself alone is not sufficient to establish the relationship of landlord and tenant because for creating such relationship there must be an agreement. In Punjab the relationship of lessor and lessee can be created either by written tenancy or by an oral agreement coupled with the delivery of the possession. This aspect of the case has been examined by the Courts below. There is a concurrent finding of fact that the landlord has led ample evidence. In these circumstances, it will not be fair for the High Court to disturb that finding until or unless that finding is perverse or there is a wrong appreciation of evidence. This aspect of the case has been examined by the Courts below. There is a concurrent finding of fact that the landlord has led ample evidence. In these circumstances, it will not be fair for the High Court to disturb that finding until or unless that finding is perverse or there is a wrong appreciation of evidence. Still I want to make an assessment whether the approach of the Courts below to the evidence led by the parties was perverse. The case set up by Mr. Dadwal before this Court was that the demised premises in question forms part of property No. BXXIX/174. It is also the case set up by the petitioner that he is occupying this property firstly as if his own right. In the alternative he was taking the plea that he is occupying this property by way of adverse possession for the last 50 years openly and hostile to everybody. He has not produced any document of title to show that he of his forefather were occupying this property as of right or by way of adverse possession. The stand which has been taken by the learned counsel for the petitioner now in the High Court is totally not borne out from the written statement filed by Girdhari Lal before the trial Court. There is not in iota of averment in para No. 1 of the written statement that the demised premises forms part of property No. XXIX/174. Girdhari Lal simply states that the property in dispute is not part of house No. 5746/47-1. Thus a plea which is being taken by the petitioner before me cannot be looked into nor any importance can be given to this plea when the petitioner wants to make out a case of which was never pleaded before the Courts below. 16. Let us now further examine whether the relationship of landlord and tenant in the present case has been established or not. The case set up by the petitioner is that this property was earlier owned by Pritam Singh and Hakikat Singh in equal shares. This fact stands proved that Pritam Singh died in the year 1982 and Baljit Singh, who was his son, inherited the said share. Similarly, Hakikat Singh died in December, 1982 and his share was inherited by Gurdip Singh and Smt. Nasib Kaur. This fact stands proved that Pritam Singh died in the year 1982 and Baljit Singh, who was his son, inherited the said share. Similarly, Hakikat Singh died in December, 1982 and his share was inherited by Gurdip Singh and Smt. Nasib Kaur. Said Gurdip Singh and Nasib Kaur sold their half share to Jaswinder Singh, petitioner No. 2 and Gurdip Kaur vide sale deed dated 10.9.1986. It is the case of the petitioner that earlier Swaru Ram alias Swaru, who was the father of petitioner Girdhari Lal was the tenant @ Rs. 10/- per month under Pritam Singh and Hakikat Singh and after their death he became the tenant of Baljit Singh, Gurdip Singh and Nasib Kaur and after the death of Swaru Ram, Girdhari Lal inherited his tenancy rights and he is in possession of the property. It is established that one Arjun Singh was a tenant in the adjoining property which also forms part of property No. 5746-47/1. Aforesaid Pritam Singh, the owner of the property, appeared as a witness in those proceedings and his statement is Ex. A5 on the record. That rent petition was filed by the owners against one Arjun Singh which was allowed and ejectment order was passed against Arjun Singh who filed an appeal which was also dismissed. It has come in evidence that Girdhari Lal used to pay the rent to Pritam Singh, one of the co-owners and on several occasions the rent was so paid. there is also an oral evidence of Jagjit Singh to prove the aforesaid facts. 17. Let us see what is the stand of petitioner Girdhari Lal before the learned trial Court when he appeared as RW6, he admits in the cross- examination that he has not seen any document of title with his father. He also admits that even after the death of his father he has not been able to get any document of title with regard to the portion occupied by him. He also admits that even after the death of his father he has not been able to get any document of title with regard to the portion occupied by him. He further states that after the death of his father he did not make any application in the Municipal Committee for the transfer of the property in his own name nor he has said any house-tax to the Committee, though the witness volunteered to say that house-tax was not imposed, he admits in the cross- examination that in one portion of this house at one point of time Arjun Singh and Sarwan Singh used to reside. This is exactly the case of the respondent- landlord that Arjun Singh was also a tenant like the petitioner in one of the portions of the house and ejectment application was filed against Arjun Singh which was contested and was allowed by the Rent Controller in favour of Pritam Singh. He also admits that he never raised any objection before the authorities of the Municipal Committee that why a wrong entry has been made showing his father as a tenant. In the light of this oral evidence led by the landlord coupled with the documentary evidence Ex. A4. There is no manner of doubt that earlier the father of the petitioner was residing in the property as a tenant and after his death the present petitioner Girdhari Lal occupied in that very capacity. Unfortunately for the landlords there is no documentary evidence in the shape of rent note but that itself will not defeat the claim of the landlord when it is amply proved from the oral evidence that earlier Swaru Ram was occupying the property in the capacity of a tenant and, thereafter, the tenancy rights were inherited by Girdhari Lal whose case admittedly is that he has not paid any arrears of rent. On the contrary, his case is that he is sitting and enjoying an old possession and, therefore, he is owner of the property which bears No. BXXIX/174 which is an independent unit. It is not established at all that the premises in occupation of the tenant have Municipal No. BXXIX/174. Rather, it is established that the premises in question are a part of the premises regarding which earlier an ejectment petition was filed by the original owners against Arjun Singh. It is not established at all that the premises in occupation of the tenant have Municipal No. BXXIX/174. Rather, it is established that the premises in question are a part of the premises regarding which earlier an ejectment petition was filed by the original owners against Arjun Singh. Earlier the ejectment petition was with regard to House No. 5747/1 and this time the ejectment petition is with regard to the portion forming part of House No. 5746. Even Girdhari Lal admits in the cross-examination that behind the house in dispute there is house of Arru Ram and on the southern side there is a road and on the eastern side there is Anand Bakery. The boundaries which have been admitted by the tenant exactly tally with the boundaries mentioned in the earlier ejectment petition. 18. The learned counsel appearing on behalf of the respondents has relied upon Kaushalya Devi v. M/s Hussan Lal Bishan Lal, 1987(1) RCR 48 in which it was held by the High Court that in order to prove the relationship of landlord and tenant if it is established that the tenant has been shown in the municipal record as a tenant and this factum of entry is proved and corroborated by the oral evidence, in such a situation it will be inferred that the relationship of landlord and tenant stood proved. In para No. 7 of the judgment it was observed as follows :- "7. The petitioner examined Tulsi Ram AW2 and Jatinder Nath AW4 to establish that there was relationship of landlord and tenant between the parties. Tulsi Ram stated that the respondents agreed to pay rent of the property at the rate of Rs. 150/- per mensem to the petitioner. Jatinder Nath PW4 supported him. The above version finds corroboration from the application, Exhibit AW5/A filed by Hussan Lal before the Municipal Committee stating therein that the rent of the property was only Rs. 14/- per annum. It is thus clear from the application as well that Hussan Lal was a tenant in the property. Even in the house-tax assessment report, Exhibit AW5/R2 the respondents are shown as the tenants. From the aforesaid evidence it is clearly established that the petitioner is the landlady and the respondents are the tenants under her, consequently I am of the opinion that the finding of the learned Appellate Authority is liable to be set aside." 19. Even in the house-tax assessment report, Exhibit AW5/R2 the respondents are shown as the tenants. From the aforesaid evidence it is clearly established that the petitioner is the landlady and the respondents are the tenants under her, consequently I am of the opinion that the finding of the learned Appellate Authority is liable to be set aside." 19. The learned counsel for the respondents also relied upon Om Parkash and ors. v. Ram Sarup, 1984(2) RCR 509 where it has been observed that the relationship of landlord and tenant is always a question which should be proved by evidence. It has been further held that even in the absence of any rent note said relationship can be proved. From the statements of the witnesses it is evident that earlier the father of the petitioner Girdhari Lal had been paying the rent and the entry Ex. A4 corroborates the statements of the oral witnesses. Therefore, I am inclined to affirm the findings of the Rent Controller as well as the Appellate Authority that there exists relationship of landlord and tenant between the parties and as the tenant has failed to deposit the arrears of rent on the first date of hearing, therefore, he is liable to be ejected. 20. Faced with this difficulty the learned counsel for the petitioner Mr. Dadwal also submitted that it is not proved on the record that the property in question has been transferred or sold to the petitioner. He submitted that the vendors did not appear in the witness-box. But I am not in a position to subscribe to the argument of Mr. Dadwal in view of the fact that the original owners Pritam Singh and Hakikat Singh died in the year 1982. The present petition was filed in the year 1990. So far as the sale deed is concerned, it stands proved on the file as Ex. A10. This sale deed has been proved through the statements of the attesting witnesses who have identified the signatures of the vendor as well as the vendee. Ashwani Kumar Malhotra appeared on behalf of the vendee and he also admitted that the vendors signed in his presence. 21. It was also argued before me by Mr. Dadwal that the petitioner who filed the ejectment petition have not appeared in the witness-box and, therefore, an adverse inference should be drawn against them. Ashwani Kumar Malhotra appeared on behalf of the vendee and he also admitted that the vendors signed in his presence. 21. It was also argued before me by Mr. Dadwal that the petitioner who filed the ejectment petition have not appeared in the witness-box and, therefore, an adverse inference should be drawn against them. In support of his contention he relied upon Iswar Bhai C. Patel @ Bachu Bhai Patel v. Harihar Behera & Anr., JT 1999(2) SC 250 in which it was held that a party to the suit if not enters in the witness box, an adverse interence has to be drawn against such party. This judgment is not helpful to the petitioner. Here is a case where nothing was to be stated from the personal knowledge of the vendees. Baljit Singh is a resident of U.K. Jasbinder Singh Bhogal is also a resident of U.K. The ejectment has been sought on the grounds of non-payment of rent and that the premises in question have become unfit and unsafe for human habitation. The moment it is established that the relationship of landlord and tenant stood proved that the tenant has not paid the arrears of rent, the onus will shift to the tenant that he has paid the arrears of rent. This onus has to been discharged by Girdhari Lal. Therefore, I do not see any illegality in the impugned judgments of the Rent Controller or that of the Appellate Authority. 22. Thus, seeing no merit in this revision, the same is hereby dismissed with the directions to the petitioner to vacate the demised premises within one monthly from today failing which it will be open to the landlord-respondents to get the possession of the demised premises according to law by filing an execution application. There shall be no order as to costs in this revision.