V.S. Aggarwal, J.
1. The present revision petition has been filed by Muni Lal and others (hereinafter described as 'the petitioners') directed against the judgment of the learned Appellate Authority, Jalandhar, dated 14.9.1981. The learned Appellate Authority had set aside the order passed by the learned Rent Controller, Jalandhar, dated 27.11.1979 and instead dismissed the eviction petition filed by the petitioners.
2. The relevant facts are that the petitioners claimed eviction of the respondents with respect to the property in dispute. The grounds of eviction which fell for consideration for the purposes of the present revision petition are that, as per petitioners, respondent No. 1 was a tenant in the shop in dispute. He is alleged to have sublet the same to respondents No.2 and 3 i.e. Hans Raj and Jagdish Chander without the written permission of the landlords. It had further been asserted that the shop in dispute is unfit and unsafe for human habitation and that the petitioners want to reconstruct it after demolishing the same. They also intend to construct residential accommodation on the first floor.
3. Needless to state, that the petition for eviction was contested. It was denied that the property had been sublet to respondents No.2 and 3. Respondents No.2 and 3 were stated to be the real brothers of respondent No. 1. They formed a Joint Hindu Family to the full knowledge of the petitioners. It was asserted that they were running the cloth business in the suit premises. It was denied that the condition of the shop is such that it is not fit for human habitation. It was even denied that the petitioners intend to set up construction on the first floor.
4. The learned Rent Controller who recorded the evidence concluded that it is not shown that respondents No.2 and 3 Were carrying oh the business with respondent No.1. It was held accordingly that inference of subletting can be drawn. It was further held that the property has become unfit and unsafe for human habitation. An order of eviction on both the grounds was passed.
5. An appeal was preferred by the respondents. The learned Appellate Authority rejected the application filed seeking permission to lead additional evidence by the ten-ants. It was further held that on the basis of the evidence on the record it cannot be termed that the suit property has been sublet to respondents No.2 and 3. It was further concluded that it is not established that the property has become unfit and unsafe for human habitation. The result was mat the appeal was allowed and the petition for eviction was dismissed. Hence, the present revision petition.
6. Taking up the ground of eviction as to if the property has been sublet to respondents No.2 and 3 the learned counsel for the petitioners urged that the plea of the respondents before the learned Rent Controller was mat the respondents are carrying on the business as a Hindu Undivided Family. But the same had not been shown. In fact, respondent No.1 was shown to be doing the business somewhere else and thus, inference of subletting of the premises should be drawn.
7. The fact that respondents No.2 and 3 are the brothers of respondent No.1 is not in controversy. The short question that arises for consideration is as to if in such a situation the property can be taken to have been sublet to respondents No.2 and 3 or not must be stated that the respondents failed to show that, in fact, they were carrying on the business of Hindu Undivided Family.
8. On behalf of the petitioners, strong reliance was placed on the decision of this Court in the case of Smt. Sita Devi v. Chaman Lai and another, 1984(2) Rent Control Reporter 635. The tenant herein was the son and it was alleged that he has sublet the premises to his father. The tenant was shown to be doing the business somewhere else. On appraisal of evidence on the record, it was found that the third person, namely, other than the tenant was in exclusive possession of the shop in dispute. A presumption was drawn that he is occupying the shop as a sub-tenant and that unless it is proved otherwise, inferences of subletting were obvious. As would be noticed hereinafter, the position herein is not identical. It would be seen that the tenant has not divested himself of the legal possession of the premises. Thus, the cited decision will not come to the rescue of the petitioners.
9. In that event, reliance was placed on the decision of the Supreme Court in the case of Shah Phoolchand Lalchand v. Parvathi Bai, (1989)1 Supreme Court Cases 556. Herein, the shop was let out to the firm Shah Phoolchand Lal Chand. The evidence indicated that another firm was carrying on the business in the shop when the appellant-firm ceased to carry on the, business. It was in this backdrop, the Supreme Court held that it was a case of. subletting. Indeed this is not the position herein. Reliance on such a decision, therefore, must be taken to be misplaced.
10. Yet another precedent was referred with advantage by the learned counsel for the petitioners in the case of Ravi Parkash v. Dewa Chand (1999-1)121 P.L.R. 457. Herein, the father was the tenant. He had given possession of the premises to his son. The son was doing the business in his own right. The tenant had taken another shop on rent. It was held that it would be a case of subletting. The important fact further was that the son started running the business and took loan for the said business from the suit premises. It was in the peculiar facts of that case that it was concluded that it would be a case of subletting. The facts in the present case, on the contrary, indicate that the respondents are brothers. Even if it is not shown that they were carrying on the business as a Hindu Undivided Family, necessarily is not an inference, in the absence of any other factor, that it would be a case of subletting. Once the tenant is in legal possession then even if permissible possession is of a third person is no ground to conclude that it is a case of subletting. It is not uncommon that the tenant would permit his brother to sit and work in the shop. It is in evidence on the record that in the General Index Register of the Income Tax Department, the tenant is Prop. Hans Raj Lekh Raj. Taking the totality of the circumstances, therefore, it cannot be inferred that it is a case of subletting. The findings of the learned Appellate Authority in this regard requires no interference.
11. Reverting to the other ground of eviction if the premises had become unfit and unsafe for human habitation, it goes without saying that during the pendency of the revision petition a Local Commissioner had been appointed to visit the site and report the condition of the building. Shri Ashwani Verma, Advocate, Local Commissioner, on 7.7.1999 submitted that report which reads as under:-
'In compliance of the orders dated 25.5.1999 I undersigned visited the shop in question on 26.5.1999 at 4.00 p.m. Both the parties, were called at the shop. The walls of the interior side of the shop were repaired with cement at 5-7 places near the roof and it has been white washed and rest of the portion of three walls were covered with wooden shelf in which clothes had been stored. The walls were constructed with brick mud mortar and the walls were not plastered with cement but white washed with lime. The ratter (sahteer) of the roof appeared to be in good condition and there was a hole in the roof measuring 13' x 12' which had been temporarily shut from the interior side with the help of wooden planks by giving the support of sticks and from the upper side this hole was found and 4 Bailies near the hole were in a decayed condition and wooden planks near the hole were in a bad condition due to seepage of water from the hole of the roof. In the middle near the fan cement had been plastered. The outer side of the right side wall of the shop, there was a big crack on the beginning of the! wall extending from top to more than middle of the wall. This crack measuring 2' x 7.5' (depth) from the upper side and 1.5' x 6.5' from the lower side and in the end of the same wall, there was also a big crack measuring 2' x 8' from the upper side 2' x 7' from the lower side and the roof of the passage was in a totally damaged condition which did not cover the shop but covers the passage. The photographs showing the condition of the walls and the roof from the interior side and outside are annexed along with this report. The rough sheet regarding the presence of the parties is also attached along with the report.'
12. Objections were filed by the respondents to the said report. It was pointed out that the local commissioner had visited to inspect the shop. The objectors were not allowed to go on the roof of the shop nor they were allowed to enter the deori and further that after the inspection, the Local Commissioner was closted in the room of the petitioner for half an hour. In the reply filed, the petitioners had controverted the said assertions.
13. The report of the Local Commissioner is being assailed mainly on the ground that, as mentioned above, he did not permit the objectors go to the terrace and was closed in the room of the petitioners. But what is important is mat the facts narrated by the local commissioner are not being denied. The objections otherwise also were filed almost six months after the filing of the report. At the first blush the respondent-objectors did not think it proper to put the objections in so many words. Now what is being stated cannot be believed. Regarding the facts found by the local Commissioner, there is no ground to set aside the said report.
14. The Local Commissioner found that there is a hole in the roof and there were tow big cracks which were deep in the walls which makes die shop unfit and unsafe for human habitation. Most of the evidence that was recorded in the trial Court, indeed, need not be discussed for the reason that the revision petition is pending in this Court for almost two decades and necessarily there would be a great change in the factual position.
15. So far as hole in the roof is concerned, the respondent-tenants pointed out that this has been caused by the petitioners. They pointed out further that complaint has been filed in this regard which as such was stated to be pending. The existence of the hole as such was not in this process disputed. But even if the same is ignored, the Local Commissioner found that there is a big crack on the beginning of the wall extending from top to more than middle of the wall measuring 2' x 7.5' in depth. There was yet another similar crack noticed on the wall. The crack by itself will not be a ground to state that the property has become unfit and unsafe for human habitation but the size of the crack is a material facts. When such deep crack occurs, necessarily it cannot be termed that the building would remain safe, It is not a minor crack. It is not necessary that the building must fall before it can be described to be unsafe and unfit for hurrah habitation. As a consequence thereto, on this ground the respondents must be held liable to be evicted.
16. For these reasons, the revision is allowed and the impugned judgment of the learned appellate authority is set aside. An order of eviction is passed against the respondents on the abovesaid ground. The respondent tenants are granted four months time to vacate the demised premises.