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2003 DIGILAW 909 (PNJ)

Basant Lal v. Sant Ram

2003-07-09

HEMANT GUPTA

body2003
Judgment Hemant Gupta, J. 1. The petitioners are aggrieved against the order passed by the Appellate Authority whereby the order of ejectment passed by the learned Rent Controller holding subletting by Sant Ram in favour of Hari Chand was set aside. 2. The petitioners field an ejectment petition stating therein that Sant Ram was inducted as a tenant who has sublet the tenanted premises to Hari Chand for consideration unauthorisedly and without consent in writing of the petitioners. A written statement was filed to the effect that Hari Chand is in fact a tenant and Sant Ram has nothing to do with the shop. It was stated that Hari Chand is a tenant since the inception of the tenancy and it is the who has been paying rent to the landlord. It was stated that Sant Ram is in relation of Hari Chand. He was instrumental in getting the shop on rent to Hari Chand and that he had never occupied the shop in question even for a day. 3. The learned Rent Controller passed the order of ejectment. However, the learned Appellate Authority found that the conduct of the parties and rent receipt for long period are sufficient to return finding that Hari Chand is a direct tenant under the petitioner. 4. Admittedly, there is no written document of tenancy. The petitioner has relied upon counter foils Ex.AW2/2, Ex.AW2/3 and Ex.AW2/5 signed by Sant Ram to con tend that initially the shop was taken on rent by Sant Ram. Subsequent payment of rent by Hari Chand will not establish independent tenancy in his favour. Since admittedly, Hari Chand is in exclusive possession of the shop, therefore, finding of the Appellate Authority are wholly illegal and not sustainable. 5. On the other hand, learned counsel for the respondent argued that there is no evidence on behalf of the landlord that Sant Ram even occupied the premises in dispute. Mere signatures of Sant Ram on some of the rent receipts are not sufficient to establish the relationship of landlord and tenant between the petitioner and Sant Ram. As a matter of fact, Hari Chand has been paying rent from the very beginning. He has produced money order receipts Ex.R1 to Ex.R.10 and Ex.AW 2/6. Therefore, some receipts by Sant Ram in the year 1960 are not sufficient to create relationship when the actual delivery or possession is not proved. As a matter of fact, Hari Chand has been paying rent from the very beginning. He has produced money order receipts Ex.R1 to Ex.R.10 and Ex.AW 2/6. Therefore, some receipts by Sant Ram in the year 1960 are not sufficient to create relationship when the actual delivery or possession is not proved. Still further the conduct of the parties subsequently would show that it is Hari Chand who paid rent regularly. It is Hari Chand who had requisite licence from the Labour Department of Municipal Committee to carry on the business in the demised shop and that too since 21.1.1960, therefore, the finding of the Appellate Authority that it was Hari Chand who was inducted as a tenant is a finding based on appreciation of evidence and rquire no interference in the exercise of revisional jurisdiction. 6. The learned counsel for the petitioners has relied upon a judgment delivered in RSA No. 189 of 1980 decided on 26.7.1996 Piare Lal (dead) through his LRs. v. Kishori Lal and Anr., 1 to contend that the tenancy can be created only by an agreement and mere acceptance of rent by one party is not a proof of the creation of such ten-ancy.However, such judgment is clearly distinguishable. That was a case where there was a rent note scribed by one Ramji Lal describing himself to be sole proprietor of M/s Ramji Lai Piare Lal. In view of the said rent note the argument was that it was the firm which was a tenant and not the individual.Such argument did not find favour with the Court. It was held that payment of rent by the firm M/s Ramji Lal Pyare Lai will not constitute tenancy as Ramji Lal has taken the premises as sole proprietor of the firm. The said judgment is clearly distinguishable. 7. In the present case, there is no written instrument of tenancy. Who is tenant is required to be determined on the basis of evidence led by the parties. The tenancy is established in the manner contemplated under Transfer of Property Act i.e., delivery of possession on consideration on payment of rent. Tenancy is created in the manner contemplated under Section 105 of the Transfer of Property Act. It is a transfer or right to enjoy a property meant for a certain time in consideration of a price paid or promised. Tenancy is created in the manner contemplated under Section 105 of the Transfer of Property Act. It is a transfer or right to enjoy a property meant for a certain time in consideration of a price paid or promised. Sant Ram, the alleged tenant has appeared as RW1. He has stated that since 1951 he is working in shop No. 119 which is owned by him. He has stated that he has never worked in shop No. 124 nor he has ever taken this shop on rent. He has further stated that in the said shop Hari Chand is tenant since 1958. He has stated that he was instrumental in arranging a shop for Hari Chand. Said witness was confronted with receipts Ex.A1 and Ex.A2 he has stated that since he was instrumental in arranging a shop, he has singed certain receipts. He has stated in the cross-examination that the possession of the shop was given by Jyoti Parshad to Hari Chand alone. It has come in evidence that except three receipts there is no other receipt. To support such stand of the respondent, RW2 Ram Chander has been produced. Hari Chand has himself appeared as RW3. 8. On the basis of oral and documentary evidence, the learned Appellate Authority has returned a finding that it was Hari Chand who was a direct tenant. Sant Ram was never inducted as tenant. Physical possession was never given to him. There was no acceptance of possession by Sant Ram so as to create a valid tenancy in his favour. 9. On the other hand, the payment of rent for continuously long period goes to show that it was Hari Chand who was a direct tenant. Such is the finding of fact based upon appreciation of evidence by the learned Appellate Authority. However, the learned counsel for the petitioner relied upon Gainda Ram etc. v. L.C. Narula, 2001(2) R.C.R, 660 Sh. Brij Bhushan v. Ram Singh and Ors., (1994-1)106 P.L.R. 402 to contend that the plea or the sub-tenant that he is a direct tenant is required to be proved by the subtenant. The onus of proof of direct tenancy is on sub-tenant. However, said argument is falicious. The petitioner has led evidence to the effect that the tenancy was created in favour of Sant Ram. The respondent has controverted such evidence by leading oral and documentary evidence. The onus of proof of direct tenancy is on sub-tenant. However, said argument is falicious. The petitioner has led evidence to the effect that the tenancy was created in favour of Sant Ram. The respondent has controverted such evidence by leading oral and documentary evidence. Hari Chand has led sufficient evidence to the effect that in fact he was inducted as a tenant. The petitioner has failed to prove that Sant Ram was inducted as a tenant in as much the possession to Sant Ram was never proved to have been delivered. In view thereof said judgments have no applicability in the facts and the circumstances of the present case. 10. In view of above, there is no material illegality or irregularity warranting interference in the exercise of revisional jurisdiction. Consequently, the revision petition is dismissed.