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2008 DIGILAW 1530 (PNJ)

Dinesh Trading Company v. Mahabir Parshad

2008-09-05

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This revision petition is directed against the order passed by the learned Appellate Authority, Sirsa ordering eviction of the petitioner on the ground of non-payment of rent and sub-letting. 2. Mahabir Parshad landlord sought ejectment of Vishwanath alleged tenant on the ground that the shop in dispute was leased out to Vishwanath w.e.f. 1.6.1971 on annual rent of Rs. 2400/- on the basis of Rent Note for the period with effect from 1.6.1971 to 31.8.1971. Rent note was executed on 2.8.1971. It is the case of the respondent landlord that rate of rent was lateron increased to Rs. 4200/- per annum as per rent note dated 1.1.1976. The ejectment of Vishwanath was sought on the ground that he had sublet the premises in dispute in favour of M/s. Dinesh Trading Company who was arrayed as respondent No. 2, without the written consent of the landlord. It was also claimed that tenant was in arrears of rent. 3. Petitioner herein contested the eviction petition claiming that M/s. Dinesh Trading Company, Sirsa was the tenant in the premises in dispute. It was claimed that the petitioner was direct tenant under the landlord. Vishwanath, the alleged tenant did not appear in the proceedings. Petition for eviction was dismissed by the learned Rent Controller vide order dated 24.5.1982. 4. The respondent landlord preferred an appeal before the learned Appellate Authority. The learned Appellate Authority came to the conclusion that the tender of rent made by respondent No. 2 was insufficient and accordingly the appeal was accepted and order of learned Rent Controller was set aside and the ejectment of respondent No. 2 i.e. the petitioner was ordered from the premises in dispute. 5. The petitioner had tendered rent from 20.11.1976 to 19.11.1979 at the rate of Rs. 3700/- per annum. Said tender was accepted by the respondent landlord under protest. Before the learned Appellate Authority the respondent landlord sought eviction on two grounds i.e. sub-letting and insufficient tender. 6. Learned Appellate Authority observed that normally sub-tenancy can hardly he proved by direct evidence and onus of the landlord is only to show the possession of the premises in dispute with a person other than that of tenant. Once the landlord proves the factum of possession being with the third party then it is for the tenant or occupant to show the nature of his possession. Once the landlord proves the factum of possession being with the third party then it is for the tenant or occupant to show the nature of his possession. Learned appellate authority, therefore, came to the conclusion that there was no doubt that the petitioner was in possession of the demised premises and the respondent landlord had led both oral and documentary evidence to show that the premises were, in fact, let out to Vishwanath respondent No. 2 herein for a period of 3 months. 7. The landlord had also proved rent note dated 2.8.1971 i.e. Ex. AW 3/1, which was proved by Vishwanath when he appeared as a witness of the landlord. The court also observed that subsequent writing also showed that there was increase of rent to Rs. 4200/- per annum. 8. Learned appellate authority also observed that the petitioner had not pleaded the date of tenancy nor any rent note was proved. It was also held that the petitioner had failed to prove any rent receipt though it was claimed that the rent was increased from Rs. 3100/- to Rs. 3700/- per annum in the year 1974. 9. Bahi entries though were brought to the court but no further action was taken thereon. The court also observed that the petitioner had failed to show the payment of rent by referring to the Bahi entries. Thus, the entries in Bahi were rejected. Learned appellate authority also came to the conclusion that the evidence of Inspector, Income Tax disproved the Bahi entries as the rate of rent was shown to be Rs. 5905/- which was against the pleadings. The explanation given by the Income Tax Inspector in the cross-examination to the effect that rent of Rs. 2205/- was with respect to godown was ignored for want of examination of Ram Parkash to whom the said rent was paid. 10. Entry Ex.R.1 showing the petitioner to be in possession of the property in the house tax register was not taken into consideration by observing that the landlord was not aware of the entries in the assessment register. The plea of the petitioner that there was no evidence of consideration between Vishwanath and the petitioner, was rejected the learned appellate authority by observing that the same was not within the knowledge of the landlord. The plea that Vishwanath was close and set up by the landlord was rejected for want of evidence. The plea of the petitioner that there was no evidence of consideration between Vishwanath and the petitioner, was rejected the learned appellate authority by observing that the same was not within the knowledge of the landlord. The plea that Vishwanath was close and set up by the landlord was rejected for want of evidence. Learned appellate authority thus came to the conclusion that it could not be held that rear note was a sham transaction. 11. The plea of the petitioner that the landlord being resident of Sirsa has been seeing the petitioner to be in possession for over 10 years was rejected observing that there could be no estoppel against the statute. The finding of the learned Rent Controller, thus, on sub-letting was reversed. 12. Learned appellate authority also came to the conclusion that the rent assessed was Rs. 14,320/- whereas tendered rent was Rs. 12620/-. Thus, it came to the conclusion that the tender was not proper. Learned appellate authority also came to the conclusion that the petitioner had failed to show the rate of rent to be Rs. 3700/- per annum and therefore the rent tendered was treated to be insufficient and thus, held that the petitioner was also liable to be evicted on the ground of non-payment of rent. 13. In this case, we need not go into the question that the tender was insufficient for the reason that in case the tender is held to be less then also the case has to he remanded back to the learned Rent Controller to assess the rent payable and thereafter give an opportunity to the petitioner to pay the said amount to avoid eviction on the ground of non-payment of rent. 14. It is also not in dispute that in case the petitioner succeeds on the ground of sub-letting the finding of non-payment of rent would also be liable to he set aside as in that case the rate of rent is to be assessed at Rs. 3700 per annum and the tender made would be valid as the rate of rent of Rs. 4200/- per annum was assessed to be alleged arrangement between the respondent landlord and Vishwanath. 15. Mr. 3700 per annum and the tender made would be valid as the rate of rent of Rs. 4200/- per annum was assessed to be alleged arrangement between the respondent landlord and Vishwanath. 15. Mr. Amit Jain, learned counsel appearing on behalf of the petitioner has challenged the finding of the learned appellate authority on the ground of sub-letting, inter alia, on the ground that the finding of the learned appellate authority is based on the statement of Vishwanath who though was impleaded as a party chose not to contest the case and rather appeared as a witness on behalf of the respondent landlord in rebuttal as the landlord had (ailed to make out a case of sub-letting while leading evidence in affirmative. 16. Learned counsel for the petitioner also contended that the learned appellate authority wrongly rejected Ex.R.1 i.e. house tax register which clearly showed that it was the petitioner who was the tenant over the property in dispute. Learned counsel for the petitioner also contended that the payment of rent of Rs. 5905/- in the income tax register was duly explained in the cross-examination. It is the respondent-landlord who got the matter clarified in cross-examination with regard to the payment of Rs. 5905/-. 17. Learned counsel for the petitioner also contended that in the present case landlord chose not to step into the witness box and therefore, no reliance could be placed on the evidence led by the respondent-landlord to prove the case of sub-letting. 18. The contention of the learned counsel further was that in the present case there was no evidence, whatsoever, on record to show that Vishwanath ever came into possession so as to hold that the premises were rented out to Vishwanath as held by the learned Appellate Authority. The rent note produced by the respondent to show the tenancy between Vishwanath and respondent landlord showed that the premises were rented out only for a period of 3 months whereas the attorney of the landlord while appearing in the witness box stated that he was tenant only for a period of few days. 19. In that situation landlord had completely failed to explain as to why the rent was increased to Rs. 4200/- in the year 1976. 19. In that situation landlord had completely failed to explain as to why the rent was increased to Rs. 4200/- in the year 1976. The contention of the learned counsel for the petitioner, therefore, was that the learned Rent Controller was fully justified in holding that Vishwanath was set up as a convenient person to raise a false plea of sub-letting. 20. It is further the contention of the learned counsel for the petitioner that if evidence of Vishwanath is taken out there is no evidence with regard to sub-letting. 21. Learned counsel for the petitioner contended that in order to prove sub- letting it has to be proved that an exclusive right to enjoy the property stands transferred to third party and said right must be in lieu of some compensation or rent and mere occupation is not sufficient to infer either sub-tenancy or parting of possession. 22. I agree with the contention raised by the learned counsel for the petitioner. 23. Learned appellate authority was not justified to hold that the arrangement between the tenant and sub-tenant was secret arrangement and landlord was not expected to know about this. This observation though generally accepted in normal course but cannot be accepted in the present case as Vishwanath the alleged tenant appeared in the witness box to support the case of the landlord respondent. He was unable to tell as to when the possession was handed over to the petitioner nor he disclosed any consideration, thus the arrangement between respondent landlord and Vishwanath was sham transaction. 24. Learned counsel for the petitioner further contended that in the present case landlord has not appeared in the witness box and therefore, it was not open to the court to have accepted the plea raised merely on the statement of the attorney. In support of this contention learned counsel for the petitioner placed reliance on the judgment of this court in the case of Raj Kumar Vij v. Hem Raj Singla and others, 2008(1) RCR(Civil) 44 : 2007(2) RCR(Rent) 597 (P&H). 25. In support of this contention learned counsel for the petitioner placed reliance on the judgment of this court in the case of Raj Kumar Vij v. Hem Raj Singla and others, 2008(1) RCR(Civil) 44 : 2007(2) RCR(Rent) 597 (P&H). 25. In the present case once it was proved on record that the petitioner was in possession of the property for the last 10 years it was for the landlord to have come to the witness box to prove the case and explain whether he was aware of entries in house tax register and also whether payment of rent by petitioner was disputed. 26. Learned counsel for the petitioner also contended that the learned appellate authority wrongly held that the transactions were not sham. The contention of the learned counsel for the petitioner was that the rent note showed that the possession was given to Vishwanath for a period of three months only. It is further pointed out that the attorney who appeared on behalf of the landlord stated that Vishwanath remained in possession for a few days only. Thus, there was hardly any reason for enhancing the rent to Rs. 4200/- as claimed. Thus, it has to he held that it was merely a paper transaction and in fact there is no tenancy between the respondent landlord and Vishwanath and the petitioner is direct tenant under the landlord. 27. This contention of the learned counsel for the petitioner deserves to be accepted as this court in the case of Jagan Nath and another v. Durga Dutt and Ors., 2000(1) RCR(Rent) 226 : 2000 HRR 304 was pleased to hold as under : "15. The facts on the record reveal that the petitioners have been in possession for long. In the entries of the property assessment tax from the year 1966 onward, Jagan Nath is shown to be in occupation of the suit premises. This clearly shows that the petitioners have been in possession for long. Ordinarily, the landlord will not wait for such a long time, particularly when a third person is in occupation. There is no further material on the record that from the year 1966 onwards the alleged tenant i.e. Hans Raj had been working or carrying on business in the suit property. It only strengthens the contention that it was a paper transaction that Exhibit AW4/1 was executed. It was not to be acted upon. There is no further material on the record that from the year 1966 onwards the alleged tenant i.e. Hans Raj had been working or carrying on business in the suit property. It only strengthens the contention that it was a paper transaction that Exhibit AW4/1 was executed. It was not to be acted upon. Consequently the findings of the learned Rent Controller and the learned Appellate Authority cannot be sustained. These findings clearly show that the findings arrived at by the authorities under Act were erroneous. It is a legal infirmity. Thus this Court must interfere." 28. Thus, it has to be held that the respondent landlord failed to prove sub- letting as the petitioner was direct tenant under the landlord. 29. In view of the findings recorded on the issue of sub-letting the finding on the ground of non-payment of rent also deserves to be reversed as the rent fixed for the premises was Rs. 3700/- per annum and not Rs. 4200/- per annum and thus, the tender made was also valid and the finding of the learned appellate authority on this issue also stands reversed. Consequently, this revision petition is allowed. The order passed by the learned appellate authority is set aside and that of the learned Rant Controller is restored. No order as to costs.