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2006 DIGILAW 4484 (PNJ)

Vaishno Lal v. Milkhi Ram

2006-12-11

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. This civil revision has been filed against an order dated 16.5.1997 passed by the Appellate Authority, Jalandhar, ordering eviction of the petitioner from the shop situated on Jalandhar-Hoshiarpur Road near Old Octroi Post, Kishanpura, Jalandhar City, shown red in the site plan attached and bounded as under :- North : Standard Rubber Industries South : Jalandhar-Hoshiarpur Road East : Standard Rubber Industries West : Shop of the petitioner in occupation of Ram Kishan. 2. The respondent-landlord had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for eviction of the petitioner-tenant from the shop on the averment that the petitioner was the tenant in the shop in dispute at a monthly rent of Rs. 50/- as per rent note dated 3.9.1976 which was subsequently enhanced to Rs. 60/- and then to Rs. 70/- per month. It was claimed that the petitioner and pro forma respondent No. 2 were liable to be ejected from the shop in dispute on the ground that the tenant has not paid the arrears of rent from November, 1986 and that the tenant has sub-let the shop in dispute to the pro forma respondent without his consent. It was also claimed that the tenant had shifted his business from the shop in dispute wherein the pro forma respondent was working as a Tea Stall Vendor. 3. The petition was contested wherein it was claimed that pro forma respondent was real nephew of the tenant who casually helped the tenant in carrying on his business of running a Tea Stall in the name and style of Swami Tea Stall in the premises in dispute. The allegation of sub-letting was denied. It was claimed that the rent from November, 1986 had already been paid against receipt dated 13.11.1986 and thereafter a sum of Rs. 300/- was given as advance to be adjusted in rent against receipt dated 3.8.1987 but in spite of this, rent for six months has been claimed without adjusting the said amount. However, the rent claimed was paid and accordingly Issued No. 1 was not pressed. However Issue No. 2 i.e. issue regarding sub-letting of the shop in dispute by the petitioner to pro forma respondent, was decided by the learned Rent Controller against the respondent-landlord holding that the landlord had failed to prove sub-letting. Consequently, the petition filed by the respondent-landlord was dismissed. However Issue No. 2 i.e. issue regarding sub-letting of the shop in dispute by the petitioner to pro forma respondent, was decided by the learned Rent Controller against the respondent-landlord holding that the landlord had failed to prove sub-letting. Consequently, the petition filed by the respondent-landlord was dismissed. However, in appeal, the learned Appellate Authority reversed the finding recorded by the learned Rent Controller and came to the conclusion that the petitioner had sub-let the shop in dispute to pro forma respondent and accordingly ordered eviction of the petitioner. 4. The learned Appellate Authority came to the conclusion that as the sub- letting being a contract between a tenant and sub-tenant, it is difficult to prove by way of direct evidence and, therefore, circumstantial evidence has to be seen so as to come to the conclusion whether sub-letting has been proved or not. 5. The learned Appellate authority further relying upon the judgment of Honble Supreme Court in the case of Nihal Chand Rameshwar Dass v. Vinod Rastogi, 1994(2) R.C.R.(Rent) 540 : 1995(1) RCR 101, came to the conclusion that where exclusive possession of sub-tenant is proved, then the Court can draw an inference that the transaction was the outcome of monetary consideration. 6. In support of the case, the landlord has produced AW-2, who was an independent witness, who categorically stated that he had seen pro forma respondent to be in possession of the shop in dispute for many years. He also made a statement that he had seen the petitioner to be running a separate Khokha in front of Sant Cinema where he was running a Pan Frosh Shop. His evidence was not shaken in the cross-examination. It may further be noticed that the pro forma respondent, in his statement as RW-3, stated that he never worked as an owner in the shop which was in possession of his Mama. He claimed that he has no concern with the said shop. He also stated that he never came to the said shop as he was employed in Upkar Nagar with one Mohinder Singh but he failed to give details about Mohinder Singh nor produced any record regarding his employment with Mohinder Singh. Rather, the tenant, in his statement, claimed that he was getting assistance from respondent No. 2 in running the Tea Stall. Rather, the tenant, in his statement, claimed that he was getting assistance from respondent No. 2 in running the Tea Stall. It was also claimed by him that he visited the shop to prepare tea and maintain account of the shop. The learned Appellate Court also took note of the fact that the tenant admitted that the name of the shop was Swami Tea Stall which was the name of the father of the pro forma respondent i.e. Sukhdev Swami. He also claimed that he used to sell tea on credit and maintain account. However, no such accounts were produced. Accordingly, the learned Appellate Authority drew an adverse inference against the tenant. 7. On appreciation of evidence led by the parties, the learned Appellate Authority reversed the findings of learned Rent Controller on Issue No. 2 and held that the landlord-respondent was able to prove sub-letting. 8. Mr. G.S. Nagra, learned counsel for the petitioner contended that the findings of the learned Appellate Authority cannot be sustained as it has reversed the well reasoned judgment of the learned Rent Controller without there being any material on record. It was contended by the learned counsel for the petitioner that as the landlord has failed to produce the assessment register qua the shop and also failed to prove by way of evidence that the petitioner was running a Pan Frosh Shop in front of Sant Cinema, the finding recorded by the learned Appellate Authority deserves to be set aside. 9. I have considered the argument raised by the learned counsel for the petitioner and find no force in the same. The learned Appellate Authority has come to the positive finding on the basis of appreciation of evidence that the landlord has been able to prove the sub-letting as he had parted with the exclusive possession in favour of respondent No. 2, who was running a Tea Stall in his own right. There being a basic contradiction in the stand taken by the petitioner and respondent No. 2, coupled with the statement of the landlord, there cannot be any doubt that the sub-letting was proved on record. Once the relationship of landlord and tenant was admitted, there was hardly any reason for the landlord to produce the assessment register. There was no occasion for the landlord to have got recorded the possession of sub-tenant in the said register. Once the relationship of landlord and tenant was admitted, there was hardly any reason for the landlord to produce the assessment register. There was no occasion for the landlord to have got recorded the possession of sub-tenant in the said register. In exercise of revisional jurisdiction, it is not open for this Court to re-appraise the evidence unless the finding is perverse or not warranted. No such point arises in the present case. Accordingly, I find no merit in the prevision revision petition which is hereby dismissed. Petition dismissed.