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2004 DIGILAW 1150 (PNJ)

Krishan Chand (Died) v. Suraj Bhan

2004-10-08

KIRAN ANAND LALL

body2004
Judgment Kiran Anand Lall, J. 1. This revision under Section 15(6) of the Haryana Urban Control of Rent and Eviction Act, 1973, is directed against order dated 8.9.1983 of the Appellate Authority vide which it had dismissed appeal against the verdict of Rent-Controller ordering ejectment of petitioners and respondent No. 8 from the demised shop, on the ground of the same having been sub-let by respondent No. 8 to the petitioners, without the written consent of the landlords viz. respondents No. 1 to 7. 2. The case of respondents No. 1 to 7, who were petitioners before the Rent-Controller, is that respondent No. 8, Parmanand, took the shop on rent from them through respondent No. 1, Suraj Bhan, for one year, on Chet Sudi 4 Samat 2011. He had agreed to vacate it, on the expiry of the tenancy period. However, he did not vacate it on the expiry of tenancy period i.e., on Chet Sudi 3 Samat 2012, and went on holding it over. His status, therefore, became as that of a statutory tenant. From Chet Sudi 4 Samat 2031 on wards, he stopped paying rent also. Thereafter, he sub-let the shop to petitioner No. 1, Kishan Chand and shifted his own business to Goshala Mandi. Petitioner No. 1 started his business in this shopunder the name and style of M/s Pokkar Mai Kishan Chand viz petitioner No. 2. He also started using upper portion of the shop for his residence, a purpose other than that for which it was let out. 3. The stand of petitioners, who were respondents before the Rent Controller, is that initially, the shop was taken on rent by the Joint Hindu Family firm (to be referred as the firm) consisting of Pokhar Mal and his two sons (petitioner No. 1 and respondent No. 8) through its karta, Pokhar Mal, in the year 1938-39, and the firm started its business under the name and style of M/s Pokhar Mal Parmanand. Pokhar Mal died in the year 1953. Thereafter, it were petitioner No. 1 and respondent No. 8 who constituted the Joint Hindu Family, with respondent No. 8 being its karta, and this family carried on business in this shop. In the year 1974, the Joint Hindu Family disrupted and the two brothers separated. Pokhar Mal died in the year 1953. Thereafter, it were petitioner No. 1 and respondent No. 8 who constituted the Joint Hindu Family, with respondent No. 8 being its karta, and this family carried on business in this shop. In the year 1974, the Joint Hindu Family disrupted and the two brothers separated. Tenancy rights of the shop fell to the share of petitioner No. 1, Kishan Chand, who, then, carried on business in it under the name and style of M/s Pokhar Mal Kishan Chand viz. petitioner No. 2. Further plea of the petitioner is that they were not aware of any rent note having been executed by respondent No. 8 in favour of respondents No. 1 to 7. In the alternative, it was pleaded that in case any such rent note exits, respondent No. 8 must have executed it as karta of Joint Hindu Family. The tenancy in question was stated to be a continuation of the old tenancy and not a fresh tenancy. All other allegations were denied. 4. The Rent Controller allowed the ejectment petition, holding that the shop was taken on rent by respondent No. 8, in his individual capacity, and not by the Joint Hindu Family firm through him as karta, and further, that he (respondent No. 8) had sub-let it to the petitioners, without the written consent of respondents No. 1 to 7 (landlords). The Appellate Authority also affirmed finding in respect of sub-letting upheld the ejectment order, and dismissed the appeal. 5. Learned counsel for the parties addressed this court only on the point as to whether the shop had been let out to respondent No. 8, in his individual capacity, or to the Joint Hindu Family through him, as its karta. It was not disputed that if it is found to have been let out to respondent No. 18, in his individual capacity, a case for sub-letting would be made out. 6. It was not disputed that if it is found to have been let out to respondent No. 18, in his individual capacity, a case for sub-letting would be made out. 6. For determination of the fact as to whether the shop was let out to respondent No. 8 in his individual capacity or to the joint Hindu Family firm through him as its Karta, we have to depend upon the contents of the rent-deed dated 17.7.1954, Ex.Al which was executed by respondent No. 8, Parmanand, in favour of respondents No. 1 to 7, read in the light of the earlier rent-deed dated 19.9.1939, Ex.AX, executed by Pokhar Mal, father of petitioner No. 1 and respondent No. 8, in favour of petitioner No. 1 and respondent No. 8, in favour of respondent No. 1 to 7. A combined reading of these two rent-deeds reveals that earlier, the shop was taken on rent by Pokhar Mal, in his individual capacity, and after his death, his son, respondent No. 8, took it on rent in the same capacity i.e. individual capacity. In both the rent-deeds, it had been specifically got recorded that the shop was being taken on rent "Barai Karobar Khud". These urdu words, when translated into English, would mean, "for doing business in individual capacity". It is no where mentioned in either of the two rent-deeds that the shop was let out to the Joint Hindu Family firm. Even if respondent No. 8 and prior to him, Pokhar Mal had been running the business of Joint Hindu Family in it, this fact "Would not make the Joint Hindu Family a tenant in it. In the rent-deeds Ex.Al and Ex.AX, special care] was taken to use the word "khud" (self), as against the word Joint Hindu Family, at every relevant place. Liability to vacate the shop and also to hand over its possession to[ the landlords, (after the expiry of period of tenancy), was also fixed on the respective executants, in their individual capacity, as against the liability of Joint Hindu Family firm. The matter can be looked at from another angle also, and that is,that except the name of executants, the contents of both the rent-deeds are identical. The matter can be looked at from another angle also, and that is,that except the name of executants, the contents of both the rent-deeds are identical. So, if vide the rent-deed Ex.AX, the shop had been taken on rent by the Joint Hindu family, and not by Pokhar Mal in his individual capacity, there would have been no need for respondent No. 8 to execute a fresh rent-deed, Ex.A1 after the death of Pokhar Mal. The fact that after the death of Pokhar Mal, his son, Parmanand (respondent No. 8), had to execute a fresh rent deed, (Ex.A1), also further clarifies the intention of the parties (to the rentdeeds) about the shop having been let out to the respective executants of Ex.AX and Ex.Al, in their individual capacity, and not as Karta of Joint Hindu Family. Learned Rent Controller and the Appellate Authority had, therefore, rightly taken this fact into consideration, while reaching the conclusion that respondent No. 8 had taken the shop on rent in his individual capacity, though he (like his father. Pokhar Mal) had been running the business of Joint Hindu Family firm, therein. In this connection, it may be mentioned that in 1981(2) Rent Law Reporters 204 Daljit Singh and Ors. v. Gurmukh Dass, it was held that tenancy rights of a shop or business premises are not heritable and after the death of tenant, the heirs cannot be termed to be tenants of the business premises. This legal position, it appears, was clear to respondent No. 8, and it was, therefore, that after the death of his father Pokhar Mal, in the year 1953, he executed a fresh rent note in favour of respondents No. 1 to 7, in the year 1954. Here, it may also be mentioned that the fact that some of the receipts regarding payment of rent had been issued in the name of the Joint Hindu Family firm, cannot be construed to mean that it is the Joint Hindu Family which was tenant in the shop. 7. Admittedly, it is petitioner No. 1 who is, at present, in possession of the demised shop and he is running business in it under the name and style of M/s. Pokhar Mal Kishan Chand through Kishan Chand. 7. Admittedly, it is petitioner No. 1 who is, at present, in possession of the demised shop and he is running business in it under the name and style of M/s. Pokhar Mal Kishan Chand through Kishan Chand. Respondent No. 8 has, admittedly, ceased to have any connection with this shop and it is for this reason that he was not impleaded as a petitioner but was impleaded as a respondent, in this petition. 8. In view of the above, I do not find any infirmity in the order of the Appellate Authority affirming the order of the Rent Controller based on the finding that the demised shop had been sub-let by respondent No. 8 to the petitioners and he had transferred its possession also to them without the written consent of the landlords. 9. The petition shall, accordingly, stand dismissed, leaving parties to bear their own costs.