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2004 DIGILAW 822 (PNJ)

Parshotam Kishan v. Jagdamba Tea Factory

2004-08-04

N.K.SUD

body2004
Judgment N.K.Sud, J. 1. Petitioner landlord filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) for the ejectment of Nand Kishore, the proprietor of the firm Jagdamba Tea Factory, from a portion of the building situated in Khasra No. 2418, outside Ghee Mandi Gate, Bagh Raja Ralia Ram, Amritsar. 2. The eviction was sought on the ground of non-payment of rent since 1.1.1974 and also on the ground that unauthorised additions and alterations had been made in the premises in dispute which had damaged the property and had materially diminished its value. It was alleged that Hari Chand and Maharaj Chand were the original owners of the property in dispute which at the relevant time was a vacant piece of land in rectangular shape measuring 80x25 yards, described by old khasra No. 2418 outside Ghee Mandi, Amritsar. They had leased out the said property to Seth Radha Kishan, father of the petitioner Parshotam Kishan on 6.8.1985 for 50 years at an annual rent of Rs. 320/-. As per the lease agreement, Exhibit A-l, lessee had been given the right to raise construction on the said plot and also to sublet it. Seth Radha Kishan had raised constructions on the said land. One shed alongwith office room was sublet by him to Jagdamba Tea Factory through Nand Kishore his nephew (brothers son) on rent of Rs. 200/- per month. The tenancy was claimed to be oral accompanied by delivery of possession. Seth Radha Kishan died on 12.4.1972 and after his death his only son and legal heir Parshotram Lai, the petitioner filed the present eviction petition. 3. Respondent contested the claim of the petitioner on various grounds. It was interalia asserted that there was no relationship of landlord and tenant between the parties and that Parshotam Kishan had no locus-standi to file the eviction petition. It was pleaded that Nand Kishore was a direct tenant under the original owners of the demised premises w.e.f. 1.2.1977 under a duly executed rent note in his favour by the owner Maharaj Chand. Nand Kishore also denied haying paid any rent either to Radha Kishan or his son Parshotam Kishan, the petitioner at any point of time in respect of the demised premises. 4. On the basis of the pleadings of the parties the Rent Controller framed the following issues:- 1. Nand Kishore also denied haying paid any rent either to Radha Kishan or his son Parshotam Kishan, the petitioner at any point of time in respect of the demised premises. 4. On the basis of the pleadings of the parties the Rent Controller framed the following issues:- 1. Whether there is relationship of landlord and tenant between the parties and the applicant has got locus stand to file the application? OPA 2. Whether there was a relationship of landlord and tenant between Seth Radha Kishan and respondent? OPA 3. Whether the application is bad for non-joinder of necessary parties? OPR 4. Whether the Court has got jurisdiction to hear this petition? OPA 5. Whether requisite particulars of the lease deed have not been furnished by the applicant, If so, to what effect? OPR 6. Whether the respondent is liable to ejectment on the grounds as mentioned in para Nos.6 and 7 of the application? OPA 6A. Whether no notice of termination of tenancy was necessary before filing of the ejectment application? OPA 6B. Whether the petitioner is a lessee in the land described in para No. 2 of the petition? OPA 7. Relief. 5. Issue Nos.l, 2, 4, 6, 6A and 6B were decided in favour of the landlord while issue Nos.3 and 5 were decided against the tenant. Consequently the eviction petition was al- lowed vide order dated 26.7.1985. 6. Aggrieved by the said order, the respondent-tenant filed an appeal before the Appellate Authority, Amritsar which was allowed vide order dated 2.5.1986 and the findings of the Rent Controller reversed. The Appellate Authority accepted the contention of the respondent Nand Kishore that he was a direct tenant under the original owner Maharaj Chand and was not the tenant of Seth Radha Kishan and, therefore, Parshotam Kishan was not entitled to file eviction petition against Nand Kishore. In view of this finding, it was held that since Nand Kishore was not a tenant under Seth Radha Kishan or Parshotam Kishan, therefore, there was no question of his being in arrears of rent due to them. These findings of the Appellate Authority have been challenged in the present civil revision. 7. Mr. M.L.Sarin, learned Senior Advocate, appearing for the petitioner contended that the findings of the trial Court were based on proper appreciation of evidence on record and supported by sound reasoning. These findings of the Appellate Authority have been challenged in the present civil revision. 7. Mr. M.L.Sarin, learned Senior Advocate, appearing for the petitioner contended that the findings of the trial Court were based on proper appreciation of evidence on record and supported by sound reasoning. He pointed out that it is not in dispute that the original owners Hari Kishan and Maharaj Chand had leased out the land under the property to Seth Radha Kishan in the year 1935 for 50 years and property at the relevant time was only a vacant plot. It is also not in dispute that buildings were raised on the said plot by Seth Radha Kishan, who was not only authorised to carry out such constructions in terms of lease deed, Exhibit A-l, but also competent to sublet the same. Mr. Sarin also explained that a shed alongwith office room was sublet by Seth Radha Kishan to his nephew Nand Kishore, who was running the business in the name and style of Jagdamba Tea Factory. Since Nand Kishore was a real nephew of Radha Kishan, the tenancy was oral. It was also pointed out that rent upto 31.12.1973 had been regularly paid by Nand Kishore and was reflected in the books of account of Jagdamba Tea Factory, but despite various opportunities granted by the Rent Controller, the books of account were not produced by Nand Kishore on one pretext or the other and, therefore, the Rent Controller had correctly drawn an adverse inference against him. 8. The learned counsel pointed out that in view of the fact that Hari Chand and Maharaj Chand had leased out the vacant land for 50 years in the year 1935 and had not raised any construction thereon themselves, there was no question of their letting out any part of the building prior to the expiry of the lease period to Nand Kishore, and therefore, the claim of Nand Kishore that he was a direct tenant under the owner Maharaj Chand w.e.f. 1.2.1977 is clearly false. He also pointed out that the rent note allegedly executed on 1.2.1977 by Maharaj Chand in his favour was never produced by Nand Kishore nor did he make any effort to get it produced from the alleged landlord. He also pointed out that the rent note allegedly executed on 1.2.1977 by Maharaj Chand in his favour was never produced by Nand Kishore nor did he make any effort to get it produced from the alleged landlord. He further pointed out that the ejectment petition was filed in April, 1978 and it was after 7 years that an application was filed on 23.5.1985 for producing additional evidence which was rejected. According to the counsel, the timing of moving this application was a clever move on the part of Nand Kishore as it was moved after the death of Maharaj Chand, who had died on 11.2.1983 and thus could not have been questioned about the genuineness of the same. 9. Mr. Sarin referred to the findings of the trial Court that in the Municipal records, the respondent Nand Kishore had been shown as an occupant of building as tenant @ Rs. 200/- per month while the name of the owner was mentioned as Scout Club, which was. an institution started by Seth Radha Kishan in this building. He also referred to uncontroverted factual position that the water, electric and sewerage connections were also in the name of Seth Radha Kishan. He also pointed out that the documentary evidence on record in the form of correspondence upto the year 1979 between the original owner Maharaj Chand and Seth Radha Kishan, clearly showed Maharaj Chand had been admitting the lease in favour of Seth Radha Kishan. Thus there was no occasion for him to execute any rent note in favour of respondent Nand Kishore on 1.2.1977. Learned counsel also referred to the income-tax returns of Nand Kishore which had been brought on record showing payment of rent to Seth Radha Kishan or Parshotram Kishan for the year 1972-73,1973-74 and 1974-75. He contended that Nand Kishore had set up a false case that he had constructed the shed alongwith office room in question on the vacant site. He was not able to produce any sanctioned plan from the Municipal Committee nor did he produce account books to show the expenditure incurred on its construction. He contended that Nand Kishore had set up a false case that he had constructed the shed alongwith office room in question on the vacant site. He was not able to produce any sanctioned plan from the Municipal Committee nor did he produce account books to show the expenditure incurred on its construction. On the other hand, learned counsel pointed out that the Municipal record clearly shows that Seth Radha Kishan had submitted the plan of the building on 11.4.1939 which was duly sanctioned by the Executive Officer, Municipal Committee, Amritsar, on 4.5.1939 and necessary orders in this regard were issued on 9.5.1939. According to the counsel, it was clear from the entry in the register maintained for this purpose at Sr. No. 195 that the building had been constructed by Seth Radha Kishan. The learned counsel also pointed out that the Rent Controller had also found that the claim of the respondent Nand Kishore that he had been carrying on business in the name of M/s N.K. Wire Industries on the premises in dispute from the very beginning, was not supported by any material or evidence on record and that by not producing his books of account he had intentionally withheld the best evidence. 10. Mr. Akshay Bhan, learned counsel appearing on behalf of the respondents, supported the order of the Appellate Authority. 11. After hearing counsel for the parties and perusing the orders of the authorities below 1 am satisfied that the Appellate Authority has wrongly reversed the well reasoned findings of the Rent Controller or mere surmises and conjectures. It stands proved from the record that demised premises is a part of the property constructed by Seth Radha Kishan on the land which had been obtained by him on lease from its original owners Hari Chand and Maharaj Chand in the year 1935 for 50 years. There is no material on record to show that the said lease had been cancelled before the expiry of 50 years. Thus, the assertion of Nand Kishore that the demised premises was let out to him by Maharaj Chand on 1.2.1977 cannot be believed, more so when Nand Kishore did not produce the alleged rent note nor examine Maharaj Chand for the reasons best known to him in the written reply Nand Kishore had duly denied being a tenant of Seth Radha Kishan or Parshotram Kishan. However, when he found himself cornered in the face of income tax record showing the payments of rent to them, he took a stand that the said rent was in respect of another shop which he had taken on rent from Seth Radha Kishan. He however, did not dare to produce the books of account which would have exposed the falsity of his claim. The tenancy of Nand Kishore under Seth Radha Kishan has been disbelieved by the Appellate Authority merely on the ground that no rent receipts have been produced nor any entries from the account books or any documentary evidence in this behalf had been produced by the petitioner-landlord. Since it was a case of oral tenancy between close relations, no receipts may have been demanded. At any rate, rent receipts if any, would be in possession of the tenant and not the landlord. He has also failed to appreciate that the payments of rent to Seth Radha Kishan and Parshotam Kishan stood established from the income tax returns of Jagdamba Tea Factory and the best evidence to show as to the premises for which it had been paid was the books of account of the Jagdamba Tea Factory which were intentionally and purposely withheld by the respondent Nand Kishore. Under such circumstances an adverse inference has to be drawn against Nand Kishore and it has to be assumed that he had paid rent in respect of the same very premises as claimed by the petitioner-landlord. 12. It is also significant to note that Nand Kishore had set up a case that he was a direct tenant under the original owner Maharaj Chand by virtue of the rent note executed by him on 1..2.1977. However, the rent note was never produced by him nor did he make any effort to get it produced from the alleged landlord Maharaj Chand. The ejectment petition had been instituted in April 1978, but Nand Kishore did not even examine Maharaj Chand who was alive upto 11.2.1983. Thus, his claim is not supported by any evidence on record. Therefore, he could not be said to be in possession of the property in dispute as a tenant or licensee of Maharaj Chand. 13. The ejectment petition had been instituted in April 1978, but Nand Kishore did not even examine Maharaj Chand who was alive upto 11.2.1983. Thus, his claim is not supported by any evidence on record. Therefore, he could not be said to be in possession of the property in dispute as a tenant or licensee of Maharaj Chand. 13. Another reason given by the Appellate Authority for rejecting the claim of the petitioner is that Nand Kishore was claimed to be a tenant in the disputed premises at a rent of Rs. 200/- per month. As against this, the income tax returns for assessment years 1972-73,1973-74 and 1974-75 on which reliance has been placed, showed payment of rent amounting to Rs. 1650/-, 960/- and 960/- respectively for three years. According to the Appellate Authority no tenant running a business would claim deduction of a lesser amount in his income-tax return. In my considered view, the claim of the petitioner could not be rejected on this conjectural ground. This may be relevant for the purpose of resolving the dispute about the rate of rent. However, it would not show that the rent was not in respect of the premises in dispute. As observed earlier Nand Kishore had purposely withheld the best evidence available with him viz. the books of account of Jagdamba Tea Factory and, therefore, an adverse inference has to be drawn against him and it has to be accepted that the rent pertained to the disputed premises. The Appellate Authority in para 10 has also observed that the possibility cannot be ruled out that the premises was rented out on 1.2.1977 by the owner of the property Maharaj Chand to Nand Kishore as alleged by him. Moreover, the period of lease had already expired on 5.8.1985. This observation is clearly contradictory. The Appellate Authority even after noticing that lease was to expire on 5.8.1985 has observed that premises was let out to Nand Kishore on 1.2.1977 when the lease had already expired. In fact, the only possibility in the face of these facts is that Nand Kishore was a tenant under Seth Radha Kishan or Parshotam Kishan, who were holding a valid lease over the disputed property and had a valid right to subject the same. In fact, the only possibility in the face of these facts is that Nand Kishore was a tenant under Seth Radha Kishan or Parshotam Kishan, who were holding a valid lease over the disputed property and had a valid right to subject the same. The observation of the Appellate Authority that Parshotam Kishan had not placed on record any documentary evidence showing the date of inception of tenancy of Nand Kishore is of no consequence in the face of overwhelming evidence on record which dearly proved that Seth Radha Kishan and Parshotam Kishan were holding a valid lease in respect of the property in question. During the currency of lease period, Nand Kishore could only be a tenant under Seth Radha Kishan or Parshotam Kishan and not under the original owner Maharaj Kishan. Since the lease was to expire on 5.8.1985, the original owner Maharaj Chand, could not have possibly rented out the disputed property to Nand Kishore on 1.2.1977. At any rate as already discussed, the failure of the respondent to produce the rent note as also the books of account coupled with the fact he also failed to examine Maharaj Chand further falsify his claim. I am, therefore, of the considered view that the Appellate Authority was not justified in holding that the relationship of landlord and tenant between the parties does not, stand proved on record and, therefore, there was no justification in reversing the findings of the Rent Controller on issue Nos.l, 2 and 4. Accordingly, the findings of the Appellate Authority on these issues are reversed and those of the Rent Controller restored. 14. As far as issue No. 6 is concerned, the Appellate Authority has reversed the findings of the Rent Controller on this issue merely as a sequel "to its findings on issue Nos. 1 and 2 and has not examined the matter on merits. However, in view of the fact that the findings of the Rent Controller on issue Nos. 1 and 2 have been restored, it will now be necessary for the Appellate Authority to record its findings on issue No. 6. Accordingly, the findings of the Appellate Authority on issue No. 6 are set aside the matter is remanded to it for fresh adjudication. The parties through their counsel are directed to appear before the District Judge, Amritsar for further proceedings on 14.9.2004. Accordingly, the findings of the Appellate Authority on issue No. 6 are set aside the matter is remanded to it for fresh adjudication. The parties through their counsel are directed to appear before the District Judge, Amritsar for further proceedings on 14.9.2004. Resultantly, the appeal is allowed in the above terms. No costs.