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Phool Chand and anr. Vs. Girraj Prasad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 573 of 1974
Judge
Reported inAIR1977Raj38; 1976(9)WLN416
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1); Evidence Act, 1872 - Sections 101 to 104
AppellantPhool Chand and anr.
RespondentGirraj Prasad
Appellant Advocate N.M. Kasliwal and; S.K. Keshote, Advs.
Respondent Advocate S.M. Mehta and; N.L. Pareek, Advs.
DispositionAppeal dismissed
Cases Referred and Viswa Nath v. Chaman Lal
Excerpt:
.....has been transfer of possession of the lease-hold property without the permission of the landlord, the only persons who can account for it are the lessee and his transferee. it is true that one of them carries on business in the shop situated just by the side of the suit shop, but simply on that account, his evidence cannot be accepted which is otherwise unreliable. the sign-board is clearly visible on the suit shop in the photographs ex. the defendants have utterly failed to discharge that burden......some time in the month of february, 1971 to pannalal bharti, who carried on business at the suit shop under the name and style of bharatpur tent house. the defendants contested the suit and denied all material facts. they denied that the suit shop was sub-let to pannalal bharti. on the contrary, they asserted that they themselves were carrying on business in the suit shop.3. on the pleadings of the parties, several issues were framed by the trial court.4. on consideration of the evidence led by the parties, the trial court came to the conclusion that from proved facts, it could safely be inferred that the appellant had sub-let the suit shop to pannalal bharti without the consent of the landlord. the trial court, on the aforesaid finding of sub-letting, decreed the suit. on appeal.....
Judgment:

S.N. Modi, J.

1. This is a second appeal by the defendant-tenants against the judgment of the Additional District Judge, Gangapur city, dated August 9, 1974, affirming the decree for eviction passed in favour of the plaintiff-landlord by the Munsiff, Bharatpur, on the ground of sub-letting.

2. The plaintiff-landlord sought eviction of the defendants from the shop situated at Bharatpur and fully described in paragraph No. 1 of the plaint, on the ground of default in payment of rent as also on the ground that the defendants had deteriorated the value of the shop by non-user for a period of more than two years. Subsequently, one more ground for eviction was added by amendment of the plaint. It was alleged in the amended plaint, that during the pendency of the suit, the defendant-appellants sub-let the shop in dispute some time in the month of February, 1971 to Pannalal Bharti, who carried on business at the suit shop under the name and style of Bharatpur Tent House. The defendants contested the suit and denied all material facts. They denied that the suit shop was sub-let to Pannalal Bharti. On the contrary, they asserted that they themselves were carrying on business in the suit shop.

3. On the pleadings of the parties, several issues were framed by the trial court.

4. On consideration of the evidence led by the parties, the trial court came to the conclusion that from proved facts, it could safely be inferred that the appellant had sub-let the suit shop to Pannalal Bharti without the consent of the landlord. The trial court, on the aforesaid finding of sub-letting, decreed the suit. On appeal by the defendants, the learned District Judge affirmed the finding of sub-letting arrived at by the trial court and dismissed the appeal. The defendant-tenants have now come up in second appeal before this Court.

5. Mr. N.M. Kasliwal, learned counsel for the appellants, challenges the correctness of the finding of sub-letting arrived at by the courts below. According to the learned counsel, there is no evidence on the record to prove that the suit shop was sub-let to Pannalal Bharti or that Pannalal Bharti was ever seen sitting on the shop and carrying on tent business in the name and style of Bharatpur Tent House. It is further contended that from the defendants' evidence, which has not at all been considered by the lower appellate court, it is proved that the tent business carried on in the suit shop belongs to the defendants themselves. It is contended, that, in the circumstances of the case, no inference of sub-letting arises in the present case. On the other hand, it is contended on behalf of the plaintiff-landlord that the inference of sub-letting drawn by the courts below is wholly justified from the evidence on the record and this Court, sitting in second appeal, cannot interfere with the concurrent finding of the courts below.

6. Admittedly, the Courts below have decreed the plaintiff's suit on the ground mentioned in Section 13(1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Section 13 (1) (a) reads as under:--

'13. Eviction of tenants.-- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied-

(a) ....................................

(b) ....................................

(c) ....................................

(d) ....................................

(e) that the tenant has assigned, sublet or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or .....'

It is well settled that initially the onus of proving that the tenant has assigned, sub-let or otherwise parted with possession of the lease-hold, lies on the landlord, and not on the tenant. In the present case, there is no direct evidence to establish that the defendants sub-let, assigned or parted with possession of the suit premises in favour of Pannalal Bharti. It may be mentioned here that it is very difficult for the landlord to produce direct evidence, as according to the plaintiff, sub-letting took place without the consent of the landlord. In such type of cases, a landlord is generally a stranger to agreements of sub-letting between his tenant and sub-lessee. The landlord, therefore, in order to prove sub-letting has no alternative but to rely on attending circumstances.

7. The manner of proving a fact depends upon the Evidence Act, or, at any rate, on the principles embodied therein. Once the court is satisfied that there has been a transfer of possession, the onus would, in my opinion, shift on to the tenant to prove the facts explaining the manner in which such possession was transferred. The reason is obvious. It is within the special knowledge of the tenant to show in what manner the other person came into the possession of the demised property. The learned counsel for the appellants cited before me the decisions in Hazari Lal and Ram Babu v. Shri Gian Ram, 1972 Ren CR 74 and Viswa Nath v. Chaman Lal, 1975 Ren CJ 514 = (AIR 1975 Delhi 117) to show that the mere user by other person is not parting with possession so long as the tenant retains the legal possession himsel., I have no quarrel with the above proposition laid down in the above authorities. What I would like to emphasise is that where there is any fact specially within the knowledge of any person, burden of proving that fact is upon him (See Section 106 of the Evidence Act). On the basis of the above principle, once it is proved that there has been transfer of possession of the lease-hold property without the permission of the landlord, the only persons who can account for it are the lessee and his transferee. On the proof of transfer of possession of the lease-hold property, the onus shifts upon, the tenant to make out that transfer of possession cannot be attributed to subletting or assigning, as the tenant, even after transfer of possession, retained the right to claim the possession. In such a case, it is for the tenant to prove, under what arrangement, he transferred the possession to another person. In the present case, the version of the defendants is that there has been no transfer of possession at all. On the contrary, they asserted that they themselves carried on tent business in the suit shop. The courts below have disbelieved that version and, in my opinion, rightly. It is not in dispute that the defendants initially commenced stationery business in the suit shop under the name and style of Raj Book Depot. One of the defendants, namely, Phool Chand, appeared in the witness-box as D. W. 1 on April 20, 1973. His statement shows that the defendants switched over from stationery business to tent business about 4 years ago, i.e., sometime in the year 1969. The above statement is wholly incorrect for in the written statement dated May 16, 1970, that is before the amendment of the plaint, the defendants admitted that they were carrying on business in the suit shop in the name of Raj Book Depot. It is highly improbable that the defendants continued tent-business under the name of Raj Book Depot. Be that as it may, it is admitted by both the parties that from February 1971, tent business has been going on in the suit shop. The question arises whether this tent business is being carried on by the defendants as pleaded by them or it is being carried on by Pannalal Bherti in the name of Bha-ratpur Tent House, as alleged by the plaintiff. In this connection, the defendants examined two witnesses D. W. 2 Om Prakash and D. W. 3 Purshottam, besides D. W. 1 Phool Chand. All of them have stated that the defendants carry on tent business at the suit shop. They have also stated that they did not see Pannalal Bharti carrying on the business at the suit shop. Both D. W, 2 and D. W. 3 denied the presence of sign board at the shop in the name of Bharatpur Tent House. It is, however, significant to note that Phool Chand D. W. 1 did not have the courage to deny this fact categorically. His statement, in this connection, is halting and evasive. The relevant portion of his statement runs as under,--

^^esjh nqdku ij cksMZ gh ughayxk gS A eSa Hkjriqj VsUV gkl ds uke ls rks dke ugh djrk gwa A nqdku eS jkstns[krk gwa A QksVks b ,Dl 3 esa A LFkkutks yMdk cSBk fn[kk;k x;k gS og esjk ukSdj gfj'kpank gSa A og esjk gh dke dj jgkgS A esjs firkth us ;k ukSdj us cksM Hkjriqj VsUV gkl yxk fn;k gksxk A esjsfirk chekj Fks rc yxk;k gksxk A oSls mldk uke vyx Fkk A iUukyky Hkkjrh; dk dkevyx Fkk A iUukyky Hkkjrh; dk dke vyx Fkk o buls esjk dksbZ lEcU/k ugha gS AcksMZ xyrh ls Vkax fn;k gksxk A**

I have carefully gone through the statements of D. W. 2 and D. W. 3, and in my opinion, none of them is trustworthy. It is true that one of them carries on business in the shop situated just by the side of the suit shop, but simply on that account, his evidence cannot be accepted which is otherwise unreliable. On the other hand, the plaintiff has examined photographer P. W. 4 Vishnu Datt Sharma, who took photographs of the suit shop on April 24, 1971. These photographs are Ex. 2 and Ex. 3 on the record, P. W. 4 has deposed that he took photographs Ex. 2 and Ex. 3 on April 24, 1971, and found a sign-board on the suit shop in the name of Bharat Tent House. The sign-board is clearly visible on the suit shop in the photographs Ex. 2 and Ex. 3. The contents of the sign-board read as under,--

^^Hkjriqj VsUV gkl

;gka u;s VsUV] lke;kus] ipZ] xyhpk] Msynkjhvkfn lkeku fdjk;s ij feyus dk ,dek= LFkku A

izks- iUukyky Hkkjrh **

The plaintiff Girraj Prasad has not appeared in the witness-box, but his son Amar Nath, who is also 'mukhtiyar khas' of his father, has been examined. He is firm on two points. Firstly, that he has seen the sign-board of Pannalal Bharti, Proprietor, Bharatpur Tent House on the suit shop, and secondly, that he did not see the defendants carrying on the business of tents at the shop. D. W. 1 Phool Chand, no doubt stated that the tent business carried on at the suit shop belongs to the defendants, but his above statement is not at all convincing. On cross-examination, he stated that the tents, Shamiyanas and carpets were purchased by him from Agra with the assistance of one of his relatives. On being further questioned, he could not point out the name of the shop and even the name of the market from where the said articles were purchased. If the tent business had been run by the defendants, they would have been in a position to produce much more convincing evidence to show that the tent business was owned by them. In absence of such evidence, no reliance can be placed on the testimony of the defendant Phool Chand. I am therefore, not inclined to accept the version put forward by the defendants that the tent business carried on in the suit-shop, is owned by them. On careful consideration of the evidence on the record, the following facts stand satisfactorily proved,--

(1) That the defendants carried on stationary business in the suit shop in the name of Raj Book Depot;

(2) That stationary business was discontinued and in its place, tent business commenced in the suit shop with the signboard of Bharatpur Tent House, Proprietor, Pannalal Bharti;

(3) That the tent business carried on in the suit shop does not belong to the defendants, and further that none of the defendants was seen sitting or carrying on tent business in the suit shop. From the above facts, it can safely be inferred that the defendants are not in occupation of the suit shop and there has been a transfer of possession. It is true that there is no specific evidence in support of the plea set up by the plaintiff that the suit shop was sub-let to Pannalal Bharti, but his name on the signboard as proprietor of Bharatpur Tent House is not without significance. At any rate, since the plaintiff has succeeded in proving transfer of possession, the onus shifted on to the defendant-tenants to prove the manner in which the transfer of possession took place. The defendants have utterly failed to discharge that burden. In the circumstances, the courts below were justified in drawing an inference of sub-letting and decreeing the suit for eviction under Section 13 (1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

8. There is no force in this appeal and it is dismissed. Having regard to the circumstances of the case, the parties are left to bear their own costs in this appeal.

9. The learned counsel for the appellants prays for leave to appeal to a Division Bench, which is refused.


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