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2003 DIGILAW 767 (PNJ)

Kirpal Singh v. Sardha Ram

2003-05-21

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The petitioners are aggrieved against the order of ejectment passed by the courts below. The respondent-landlord filed an eviction petition on the ground that the demised premises were let out to Kirpal Singh vide rent note dated 11.1.1973 at a monthly rent of Rs. 55/-. It is further stated that Kirpal Singh has sub-let the premises to one Joginder Singh. The landlord has pleaded that Kirpal Singh has himself formed an absolutely new concern and has shifted to another shop in front road belonging to one Ujagar Singh. However, the landlord has not disclosed the date on which respondent No. 2 was inducted as a sub-tenant or that the respondent No. 1 has handed over exclusive possession of the shop to respondent No. 2. 2. In the written statement, the respondents denied the allegation of sub- tenancy and stated that both the respondents are brothers and are doing business in the shop jointly in the name of Narula Iron Store, Shahbad. It is further stated that rent upto 31.3.1983 against valid receipts already stood paid. It is further stated that respondents No. 1 and 2 and real brothers and are doing business jointly from the very beginning when the shop was taken on rent. However, rent note was executed by respondent No. 1 being elder brother and Karta of the family. 3. In evidence, the tenant produced rent receipts Ex.R1 to R6 as the receipts of payment of rent by Joginder Singh and Kirpal Singh. Execution of such receipts has not been denied by the landlord. The tenant has also produced entry in the register of the scribe Ex.R10 to the effect that Tara Singh and Joginder Singh sons of Labh Singh, i.e. brothers of Kirpal Singh have taken on rent the premises disputed in the present petition at a monthly rent of Rs. 55/- from 13.1.1969 to 12.1.1970. The petitioners were permitted to lead secondary evidence of such entry on the basis of an application moved by Joginder Singh on 22.8.1986. 4. The authorities under the Act passed an order of ejectment on the ground that the payment of rent vide receipts Ex.R1 to R6 are not the conscious piece of evidence for accepting Joginder Singh as tenant. The petitioners were permitted to lead secondary evidence of such entry on the basis of an application moved by Joginder Singh on 22.8.1986. 4. The authorities under the Act passed an order of ejectment on the ground that the payment of rent vide receipts Ex.R1 to R6 are not the conscious piece of evidence for accepting Joginder Singh as tenant. It is also found that Kirpal Singh has taken another shop of Ujagar Singh on rent and therefore, landlord has proved the case of sub-letting by Kirpal Singh in favour of Joginder Singh, his brother. 5. I have heard the learned counsel for the parties and with their assistance have gone through the record and find that the findings recorded by the courts below are not the possible findings in law. The findings suffer from material illegality and irregularity, and therefore, the revision petition is liable to succeed. 6. The counsel fro the petitioner has argued that the premises were taken on recent (rent ?) in the year 1969 at the rent of Rs. 55/- per month. It has been proved that the premises were taken on rent in the year 1969, which is corroborated by virtue of the entry of the scribe Ex.R10. It has been stated by the petitioners in the written statement that they have taken the shop in dispute jointly and are doing business jointly and that the respondents are real brothers and are doing business jointly from the very beginning when the shop was taken on rent. It is thus evident that the premises were given on rent by the landlord in the year, 1969. Initially, the rent note was in favour of Joginder Singh and Tara Singh. However, subsequently, the landlord called upon Kirpal Singh to execute another rent note which was executed in the year 1973 at the same rent of Rs. 55/-. 7. The counsel for the respondent submitted that the tenants have not taken a plea that they are tenants since the year 1969 and that rent note of the year 1973 is a sham or a paper transaction. However, I am unable to accept the argument raised by the learned counsel for the respondent-landlord. 55/-. 7. The counsel for the respondent submitted that the tenants have not taken a plea that they are tenants since the year 1969 and that rent note of the year 1973 is a sham or a paper transaction. However, I am unable to accept the argument raised by the learned counsel for the respondent-landlord. Once the parties have led evidence that the premises were let out in the year 1969 and the landlord had the opportunity to cross-examine the witnesses, raising of such a fact in the written statement would be wholly inconsequential. It has been held by the Division Bench of this Court in Mohinder Kaur and another v. Piara Singh and others, AIR 1981 P&H 130, that if "the parties know that if a point arises in the case and produce evidence on it though it does not find place in the pleadings and no specific issue has been framed on it, the court can still adjudicate thereon. None of the parties can be allowed to see (say ?) that the court cannot decide the matter because it was not raised in the pleadings." In view thereof, I am of the opinion that mere fact that the tenants have not asserted in the written statement that the tenancy started in the year 1969 is wholly inconsequential. 8. Still further, both the courts have not returned a finding that the exclusive possession has been parted away by Kirpal Singh in favour of Joginder Singh. In fact, Kirpal Singh when appearing as a witness has stated that he along with his brothers are jointly carrying on business in the shop. He has further stated that whoever brother is doing business in the shop, pays the rent. He further stated that his son Daljit Singh was occupying a shop of Ujagar Singh and he sometimes sits in the said shop. 9. The courts below have drawn an inference of sub-letting on the ground that another shop has been taken on rent, and the fact that no partnership deed between the brothers has been produced, nor the sales tax licence in the name of Joginder Singh and Kirpal Singh. There are the reasons to hold that there is a case of sub-letting. The courts below have drawn an inference of sub-letting on the ground that another shop has been taken on rent, and the fact that no partnership deed between the brothers has been produced, nor the sales tax licence in the name of Joginder Singh and Kirpal Singh. There are the reasons to hold that there is a case of sub-letting. However, the fact remains that the landlord has neither pleaded that the exclusive possession has been parted away by Joginder Singh in favour of Kirpal Singh or Kirpal Singh has ceased to have any control over the shop in dispute in any manner. Therefore, mere fact that Kirpal Singh has taken on rent another shop, may be for the purpose of his son or for himself, would not make out a case of sub-letting. There is no limitation on the tenant to expand his business and to take another shop on rent either for himself of for his family members. Mere fact that another shop has been taken on rent, is not sustainable to return a finding that the tenant has sub-let the premises in favour of brother. Keeping in view of the factum of earlier rent note, rent receipts Ex.R1 to R6 and the relationship between the parties, I am unable to hold that the landlord has proved the case of parting of exclusive possession by Kirpal Singh in favour of Joginder Singh. Thus, the finding of sub-letting returned against the petitioner is wholly unjustified and not sustainable in law. 10. Consequently, I allow the present revision petition and set aside the findings recorded by the courts below.