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2004 DIGILAW 312 (UTT)

Anoop Kumar v. Additional District Judge

2004-11-18

PRAFULLA C.PANT

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JUDGMENT Prafulla C. Pant, J. 1. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought quashing of judgment and decree dated 14.6.2001 passed by the respondent No. 1 in SCC revision No. 47 of 1994 whereby revision is allowed and S.C.C. suit No. 55 of 1986 instituted by petitioner is dismissed. 2. Brief facts of the case, as narrated in the writ petition, are that the petitioner is the owner and landlord of shop No. 11/311 (24-26) situated at G.B. Pant Marg, Haldwani, District Nainital. The said shop was purchased by the petitioner through a sale deed dated 27.11.1982 from one Rabindra Shamsher Jung. Initially one Tasleem Ahmed was the tenant in the shop in question who died in the year 1974 leaving behind hid widow and daughter (respondent No. 6 and 7 respectively) as heris. The said two respondents inherited the tenancy. The rate of rent was Rs. 250 p.a. They committed default in payment of rent and also illegally sub-let the shop to respondent No. 3 to 5. As such the petitioner, terminating the tenancy of the respondent Nos. 6 and 7 instituted a suit before the Judge Small Causes Court, Haldwani which was registered as S.C.C. suit No. 55 of 1986 Anoop Kumar v. Shakoor Ahamed and Ors.. Respondent No. 3 to 5 got themselves impleaded in the suit and filed their separate written statement alleging that they were joint tenants with Tasleem Ahmed in the shop in question. It is further stated by the respondent No. 3 to 5 in their written statement before trial Court that after the death of Tasleem Ahmed they are running business in the shop in question in the name and style M/s Kiran Bangle Store. Learned trial Court after recording the evidence and hearing the parties, decided the suit with the findings that respondents No. 6 and 7 have sub-let the premises to respondents No. 3 to 5 unauthorizedly and accordingly decreed the suit for eviction. However, giving protection of Section 20 (4) of Act 13 of 1972, no default was treated as a ground for eviction as the respondents deposited all the rent claimed with costs and interest. However, giving protection of Section 20 (4) of Act 13 of 1972, no default was treated as a ground for eviction as the respondents deposited all the rent claimed with costs and interest. Aggrieved by the judgment and order passed by Judge Small Causes Court, Haldwani, respondent No. 3 filed a revision under Section 25 of Provincial Small Causes Courts Act, before the District Judge, Nainital which was registered as SCC Revision No. 47 of 94- Salim Uddin v. Anoop Kumar and Ors. Learned Additional District Judge, First Fast Track Court, Nainital (Respondent No. 1) after hearing the parties, passed judgment and decree dated 14.6.2001 whereby the revision was allowed with the finding that the respondent No. 3 to 7 were not sub-lessee as their tenancy stood regularized and the rent was being accepted from them by the previous owner and landlord. Consequently, the suit was dismissed by the revisional Court. Aggrieved by which this petition has been filed by the landlord, petitioner challenging the same on various grounds including that the revisional court had no power to set aside the findings of the trial Court, relating to subletting. It is further alleged in the writ petition that the Revisional Court has ignored even admission of respondent Nos. 6 and 7 that they surrendered the tenancy. It is also alleged, occupation if any, with the respondent Nos. 3 to 5 in the shop in question was not with the consent of the owner and landlord as such the same could not have been regularized. It is also alleged that the respondent No. 1 has allowed the revision without any proof of rent being paid by the respondents to the landlord-owner. 3. Respondent No. 3 contested the petition and filed his counter affidavit arid admitted that before shop in question was purchased by the petitioner on 27.11.1982. Before said date, Shri R.S. Jung was the landlord and owner. It is stated in the counter affidavit that respondent Nos. 6 and 7 were heirs of late Shri Tasleem Ahmed (original tenant) who have stated in their written statement before trial Court that they were unable to run the business as such they permitted their nephews Salim Uddin (respondent No. 3), Nizam Uddin and Naim Uddin to use the shop. However, the answering respondent has alleged that the respondent Nos. 6 and 7 were heirs of late Shri Tasleem Ahmed (original tenant) who have stated in their written statement before trial Court that they were unable to run the business as such they permitted their nephews Salim Uddin (respondent No. 3), Nizam Uddin and Naim Uddin to use the shop. However, the answering respondent has alleged that the respondent Nos. 6 and 7 were in collusion with the owner-landlord that is why respondent Nos. 3, 4 and 5 got themselves impleaded in the suit. According to answering respondent the rate of rent was Rs. 225/- p.a. which they used to pay to Shri R.S. Jung, the previous owner-landlord. It is admitted that Tasleem Ahmed died on 20th January, 1974 and thereafter the respondents No. 3 to 5 are running the business in name and style of M/s Kiran Bangle Store. It is further stated in the counter affidavit that the respondent Nos. 3 to 5 were not informed regarding transfer of ownership in the year 1982 either by previous landlord or by the petitioner before institution of this suit. The answering respondent has further claimed benefit of Sections 14 and 20 of the U.P. Act 13 of 1972. 4. I heard learned Counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit alongwith the annexures annexed thereto. 5. The question for consideration before this Court is whether the impugned order passed by the respondent No. 1 suffers from any illegality and also if the respondents No. 6 and 7 have sub-let the shop in question un-authorizedly to respondent Nos. 3 to 5. 6. Admittedly, initially Shri R.S. Jung was the owner and landlord and one Tasleem Ahmed was tenant of the shop in question. It is also admitted fact that Tasleem Ahmed died in the year 1974. It is also not disputed that respondent Nos. 6 and 7 were heirs of the deceased, Tasleem Ahmed. The present occupation in the shop in question with respondent Nos. 3 to 5 is also not denied. The point of dispute is whether the respondent Nos. 6 and 7 have sub-let the shop to respondent No. 3 to 5 without the permission of the landlord, or the respondent No. 3 to 5 were tenant in their own capacity in the shop from the time of the previous owner and landlord, Mr. R.S. Jung. The point of dispute is whether the respondent Nos. 6 and 7 have sub-let the shop to respondent No. 3 to 5 without the permission of the landlord, or the respondent No. 3 to 5 were tenant in their own capacity in the shop from the time of the previous owner and landlord, Mr. R.S. Jung. Learned trial Court decreeded the suit with the finding that respondent Nos. 6 and 7 have sub-let the shop to respondent No. 3 to 5. While the respondent No. 1 i.e. Revisional Court has reversed the said finding holding that the respondent No. 3 to 5 were tenants of the previous landlord owner, Shri R.S. Jung as he was accepting rent from them. 7. Learned Counsel for the petitioner drew my attention to the written statement filed by the parties before the trial Court and the statement of D.W. 1 Tasleem Ahmed recorded by said Court. In Para 15 of the written statement of respondent Nos. 6 and 7, it has been stated that late Tasleem Ahmed was running the business of Bangle and general merchandise in the shop in suit, therefore, answering defendant thought it better to get run and manage the business through their nephews and relatives namely Salimuddin (respondent No. 3), Nizamuddin and Naimuddin who worked as servants and the agents of the answering defendants. It is further stated in said para of the written statement that these persons became dishonest therefore, respondent Nos. 6 and 7 had to file suit No. 97 of 1986 against them much before the petitioner filed the present suit. On the basis of this plea, learned Counsel for the petitioner argued that respondent No. 3 to 5 are sub-lessee and not tenants as alleged by them. In reply to this, learned Counsel for the respondent No. 3 submitted that the defendant Nos. 6 and 7 are in collusion with the present landlord. As such on the basis of plea of respondent Nos. 6 and 7, the respondent No. 3 to 5 cannot be held to be sub-lessee. In this connection, my attention was drawn to the written statement filed by the respondent No. 3 to 5 before the trial Court in which they have claimed themselves to be joint tenants with Tasleem Ahmed on rent at the rate of Rs. 225/- p.a.. 6 and 7, the respondent No. 3 to 5 cannot be held to be sub-lessee. In this connection, my attention was drawn to the written statement filed by the respondent No. 3 to 5 before the trial Court in which they have claimed themselves to be joint tenants with Tasleem Ahmed on rent at the rate of Rs. 225/- p.a.. However, learned Counsel for the petitioner argued that the respondent No. 3 to 5 failed to prove the story of joint tenancy. As the perusal of statement of D.W. 1 Salimuddin recorded by the trial Court shows that he has admitted that it was Tasleemuddin who used to pay the rent to the then landlord and he was doing business of tailoring in the shop in question. My attention was further drawn on behalf of the petitioner to the statement of D.W. Salimuddin that receipt of rent used to be issued only in favour of Tasleem Ahmed. In the opinion of this Court, from the evidence on record, it is clear that the respondent No. 3 to 5 failed to prove their joint tenancy as pleaded by them before the trial Court. It is also established from the evidence on record as observed by the learned trial Court as well as the Revisional Court that the respondent No. 3 to 5 occupied the shop with the permission of respondent No. 6 to 7. 8. Now I come to the question of sub-letting. On behalf of contesting respondents Nos. 3 to 5, my attention was drawn to Section 14 of U.P. Act No. 13 of 1972 which reads as under (as amended in the year 1976): 14. Regularisation of occupation of existing tenants-Notwithstanding anything contained in this Act or any other law for the time being in force, any licence (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorized licensee or tenant of such building. 9. 9. In the light of above provision, Learned Counsel for the respondent No. 3 argued that since the previous landlord accepted the rent from the answering respondent as such their tenancy stood regularized and they have status of full-fledged tenants. Learned Counsel for the petitioner argued that the consent of the previous landlord cannot be presumed as there is no such plea taken in written statement by respondent No. 3 to 5. In the opinion of this Court, it is sufficient to plead in the written statement that the answering defendant was a tenant. It is not necessary to plead the law pertaining to Section 14 of the Act 13 of 1972. That being so, the findings and impugned order of respondent No. 1 appears to be not against the law. The burden to prove that the defendant Nos. 6 and 7 have sub-let the shop to respondent No. 3 to 5 lies on the plaintiff/petitioner. Shri R.S. Jung from whom the present petitioner purchased the property, was best witness who could have supported the petitioner stating that he did not accept the rent from Salimuddin, Nizamuddin and Naimuddin. As against this Page No. 35 and 36 of the counter affidavit show that the respondent No. 3 to 5 used to send rent at the rate of Rs. 225 p.a. by money-order to the previous landlord and owner and there is no evidence on record to show if the same was not accepted by the then landlord. Rather photocopies of the receipts annexed at page 35 and 36 show that Mr. Jung did receive the payment from the respondent No. 3 to 5. In the circumstances, the impugned judgment and decree cannot be set aside. 10. On behalf of the learned Counsel for the petitioner my attention was drawn to the principle of law laid down in Shabban Khan and Ors. v. XIIIth Additional District Judge, Moradabad, 1995 (2) ARC Page 323, Shalimar Tar Products Ltd. v. H.C. Sharma, Allahabad Rent Case, 1998 (1) Page 157, Harish Tandon v. Additional District Magistrate, Allahabad, 1995 (1) ARC 220 and S.N. Seth v. Prakashwati, 1999 (1) ARC 430 and it is argued that if the heirs of the tenant unauthorizedly permit others to occupy the shop against the provisions of law, it shall be a deemed to be vacant accommodation and there will be presumption as to the sub tenancy. The above noted case laws could have helped the petitioner if there had been some evidence that Shri R.S. Jung, the then landlord and owner did not accept the rent from respondent No. 3 to 5. In the present case, principle of law contained in aforesaid citations are of no help to the petitioner, for he failed to adduce the best evidence of Shri R.S. Jung, denying if he has not accepted the rent from the respondent No. 3 to 5. The petitioner who purchased the property in 1982 from R.S. Jung can only enter into his shoes and can inherit only those rights which Mr. Jung possessed at the time of the transfer of the shop. 11. In view of the above discussion, the writ petition is liable to be dismissed. The writ petition is dismissed. No order as to costs.