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2003 DIGILAW 51 (PNJ)

Rajinder Singh v. Joginder Singh

2003-01-14

K.C.GUPTA

body2003
Judgment K.C.Gupta, J. 1. This revision petition is directed by the landlords against the order dated 10.9.1985 passed by the Appellate Authority Ludhiana, under the East Punjab Urban Rent Restriction Act, 1949 whereby he accepted the appeal of respondent No.1 Joginder Singh with costs and set aside the order of the Rent Controller dated 7.3.1983 and dismissed the petition for ejectment with costs. 2. Briefly stated, the facts are that Harbans Singh father of the petitioners has filed a rent petition on 17.3.1981 against the respondent for their ejectment from a part of House No. B-IV-1477, Chauri Sarak, Ludhiana, as shown in the site plan attached, on the allegations; that the premises in dispute was transferred to him with effect from 1.10,1985 and at that time respondent No. 1 was an allottee in a part of the house i.e. demised premises as a tenant at a monthly rent of Rs. 5/-. After the death of Dewan Chand, his son Joginder Singh respondent No.1 became tenant on the same terms and conditions. However, Joginder Singh respondent No.1 had sub let the demised premises to his son Amarjit Singh who is carrying on the business in the name and style of Supreme Dry Cleaner. It was next averred that they had changed the user of the property because instead of residence, they had started using it for commercial purposes. It was also averred that the respondents had made material alterations in the demised premises which has resulted in impairing the value and utility of the premises in dispute. It was further averred that the respondent had not paid the arrears of rent since 1.10.1955. 3. During the pendency of the aforesaid petition, Harbans Singh died and in his place his legal representatives i.e. the petitioners were substituted. 4. The respondents contested the petition and stated by way of preliminary objection; that the premises in dispute was an evacuee property and Joginder Singh respondent No.1 was a tenant of the rehabilitation department but had paid the rent upto 31.1.1980. They next stated that there was no relationship of landlord and tenant between the parties. They denied that the property in dispute was transferred to the petitioner w.e.f. 1.10.1955. Rather the matter of transfer was still under dispute. However, they admitted that Dewan Chand was an allottee in a portion of the house in dispute at a monthly rent of Rs.5/-. They denied that the property in dispute was transferred to the petitioner w.e.f. 1.10.1955. Rather the matter of transfer was still under dispute. However, they admitted that Dewan Chand was an allottee in a portion of the house in dispute at a monthly rent of Rs.5/-. They next stated that Dewan Chand was running a Karyana shop in the property in dispute and as such, it was being used as a shop from the very beginning. They further stated that respondent No.1 was doing the dry cleaning business in the demised premises and denied that respondent No.1 had sub let the premises to his son Amarjit Singh respondent No.2 but asserted that they constituted a Joint Hindu Family and were running two dry cleaning shops one in the demised premises and the other in the Jawahar Market jointly. They also denied that they had materially impaired the value and utility of the premises in dispute. They further stated that they had tendered rent in the court for payment to the petitioners w.e.f. 1.2.1980 to 30.4.1981 at the enhanced rate of Rs.12/- per month. 5. Accordingly the following issues were framed:- 1. Whether there is relationship of landlord and tenant between the parties? OPP 2. Whether the tender is valid? OPP 3. Whether respondents are liable to be ejected on the ground mentioned in para no.3 of the petition? OPA 4. Relief. 6. The parties adduced their evidence. After hearing counsel for the parties, the Rent Controller, vide his order dated 7.3.1983 accepted the petition and ordered the ejectment of the respondents from the demised premises and directed them to hand over vacant possession within two months by holding under issue No.1 that there existed a relationship of landlord and tenant between them. Under issue No.2 it was held that a valid tender had been made. Under issue No.3 it was held that respondents were liable to be ejected from the demised premises as they had changed its user. 7. Aggrieved by the said order, the respondents filed an appeal which was accepted and the order of ejectment was set aside. 8. Aggrieved by the said order, the petitioners i.e., legal representatives of Harbans Singh have filed the present revisions-petition. 9. I have heard Mr. Harpreet Singh Giani, learned counsel for the petitioners, Mr. L.S. Wasu, learned counsel for the respondents and carefully gone through the file. 10. 8. Aggrieved by the said order, the petitioners i.e., legal representatives of Harbans Singh have filed the present revisions-petition. 9. I have heard Mr. Harpreet Singh Giani, learned counsel for the petitioners, Mr. L.S. Wasu, learned counsel for the respondents and carefully gone through the file. 10. The findings of the Courts below that there exists a relationship of landlord and tenant between the parties has not been challenged before this Court. The respondents had tendered arrears of rent from 1.2.1980 to 30.4.1981 at enhanced rate of Rs.12/- per month in the Court payable to the petitioners which they had accepted without any objection. The respondents have also placed on file receipts Ex.R1 to R58 which show that prior to it, rent had been paid to the rehabilitation department. It is true that the property in dispute had been transferred to the petitioners w.e.f. 1.10.1955 vide conveyance deed Ex.A5 dated 4.2.1981 but there is no evidence that the petitioners or their predecessors-in-interest had given notice to the respondent No.1 to attorn the tenancy to them, since, they had become the landlords. Therefore, no notice was ever issued either by the petitioners or by the department regarding the sale of the premises in dispute to the predecessor-in-interest of the petitioners. According to proviso of Section 109 of the Transfer of Property Act, a transferee is not entitled to the arrears of rent due before the transfer and if the lessee, not having reasons to believe that such transfer has been made paid rent to the lessor, then lessee would not be liable to pay such rent over and again to the transferee. The department had been accepting the rent upto 31.1.1980. They never pointed out that the property in dispute had been transferred to the predecessor-in-interest of the petitioners and henceforth, rent should be paid to him or his successors. In such circumstances the rent tendered in Court was a valid tender. 11. The next question to be seen is whether there is a change of user of the demised premises. The allegation in the petition is that a portion of the house in dispute was allotted to Dewan Chand as a tenant at a monthly rent of Rs. 5/- for the purpose of residence but after his death, respondent No.1 Joginder Singh had converted it to a commercial purpose for running Dry Cleaning business. The allegation in the petition is that a portion of the house in dispute was allotted to Dewan Chand as a tenant at a monthly rent of Rs. 5/- for the purpose of residence but after his death, respondent No.1 Joginder Singh had converted it to a commercial purpose for running Dry Cleaning business. The allegation of the respondents is that from the very beginning, it was used as a shop as Dewan Chand was running a Karyana shop in it and in 1982 respondent No.2 Amarjit Singh started Dry Cleaning business into it. There is no evidence that the area where the property in dispute is situated is a commercial area and on the other hand it is a residential area. The domestic electric connection was given to Harbans Singh in the demised premises as per statement of AW3 Baljinder Singh. The birth certificate Ex.A-10 and All show that both the children of Joginder Singh respondent No.1 were born at the said address. They were born in the year 1954 and 1959. meaning thereby that at that time the premises in dispute were being used for residential purpose. It was admitted by Joginder Singh respondent in his statement that two rooms were allotted to his father on the ground floor. 12. Ex.AW1/A is the document pertaining to the rehabilitation department. In fact it is a copy of Form No.2 which depicts entry in the Basic Register of the properties acquired by the Central Government through notification. In the said Register, Property No.B-IV-1477/1 i.e. the property in dispute has been shown as a residential house. Subsequently, if it has been used as a shop by Dewan Chand father of respondent No.1, then certainly it is a change of user. The receipts of Tehbazari issued by the Municipal Authority to Dewan Chand does not show that it was a Karyana shop but Tehbazari was realised for using a portion of the land belonging to the municipal area as he was stated to be keeping a Tekhat-Posh on the road for which he used to pay Tehbazari. 13. It is in evidence that Dewan Chand died in 1967 but the business of dry cleaning was started in the year 1972. It has not been explained as to what they were doing in the demised premises during the intervening period of 5 years. 13. It is in evidence that Dewan Chand died in 1967 but the business of dry cleaning was started in the year 1972. It has not been explained as to what they were doing in the demised premises during the intervening period of 5 years. The only inference is that they had been living in it upto 1972. If the building is constructed for residential purpose but even if it is let out for non residential purposes, then it does not become a non-residential building. Section 11 of the East Punjab Rent Restriction Act, 1949 clearly prohibits an owner and keeper of the premises from converting the residential building into non-residential building except with the written permission of the Controller. Admittedly, in the present case no written consent of the Ren Controller was obtained for converting the demised premises from residential to non-residential, Therefore, certainly there is a change of user. Reference in this connection may be made to an authority of the Honble Apex Court; Rajinder Singh v. Jatinder Dev Nanda, (1999)9 S.C.C. 18. Therefore in view of this authority of the Honble Apex Court, the Division Bench authority of this Court in M.P.Bansal and Anr. v. The Distt. Employment Officer, Pathankot, (1985)87 P.L.R. 605, cited by learned counsel for the respondents to the effect that if a building is constructed for residence and is let out for business and trade, then it becomes non-residential, is not applicable. Similarly, later it has been held by the Full Bench of this Court in Sh. Hari Mittal v. Sh. B.M. Sikka, (1986-1)89 P.L.R. 1 that a residential let out from non-residential building purpose by the landlord without obtaining written statement permission of the Rent Controller in terms of Section 11 of the East Punjab Urban Rent Restriction Act, 1949 would continue to be a residential building and the landlord would be entitled to seek ejectment of the tenant on the ground of his bona fide personal requirement. Therefore, respondents are liable to be evicted from the demised premises on the ground of change of user. 14. Now the further question to be seen is whether respondent No.1 Joginder Singh has let the demised premises to his son respondent No.2 Amarjit Singh. It is an admitted fact that at present Amarjit Singh is carrying on Dry Cleaning business in the demised premises under the name and style of Supreme Dry Cleaner. 14. Now the further question to be seen is whether respondent No.1 Joginder Singh has let the demised premises to his son respondent No.2 Amarjit Singh. It is an admitted fact that at present Amarjit Singh is carrying on Dry Cleaning business in the demised premises under the name and style of Supreme Dry Cleaner. There is no dispute about it that respondent No.1 Joginder Singh had taken the dry cleaning licence Ex.A7 of Lahore Dry Cleaner while respondent No.2 Amarjit Singh had taken the licence Ex.A8 of M/s Supreme Dry Cleaner in the demised premises. The copy of Ex.RW9/A the assessment statement for the year 1982-83 shows that respondent No.2 is shown as a tenant at monthly rent of Rs. 100/- in the demised premises. The income tax returns are also to the effect that Amarjit Singh respondent No.2 was separately assessed for income tax as proprietor of Supreme Dry Cleaner in the demised premises. He is carrying on business in the demised premises since 1972. There is no documentary evidence that this business is being carried on jointly by both the respondents. In fact respondent no.1 Joginder Singh is carrying on the business under the name and style of Lahore Dry Cleaner, Jawahar Market, Ludhiana while respondent No.2 Amarjit Singh is carrying on the business of Supreme Dry Cleaner in the demised premises since 1972. 15. The page of the ledger Ex.RW11/10 has been produced on file to show that accounts of both the shops were kept jointly but this is a manufactured evidence because in the returns filed with the income tax department, Amajit Singh respondent No.2 has been shown as sole proprietor of M/s Supreme Dry Cleaner. Thus, the demised premises are in exclusive possession of respondent No.2, meaning thereby that respondent No. 1 had abandoned his right of possession in the demised premises in favour of respondent No.2. It is not possible to get direct evidence regarding sub letting it must be that respondent No. 1 is charging some rent from respondent No.2. Therefore, there is no dispute about it that respondent No. 1 has sub let the demised premises to respondent No.2. Hence, on this score, the respondents are liable to be evicted from the demised premises. Consequently, this revision petition is accepted the order of the Appellate Authority being illegal is set aside and that of the Rent Controller is restored. Therefore, there is no dispute about it that respondent No. 1 has sub let the demised premises to respondent No.2. Hence, on this score, the respondents are liable to be evicted from the demised premises. Consequently, this revision petition is accepted the order of the Appellate Authority being illegal is set aside and that of the Rent Controller is restored. The respondents are directed to vacate the demised premises and they are given a period of two months from today to vacate the same.