Hari Kishan Dass vs Narsi Das and Another

M.S. Liberhan, J.—The ejectment of the respondents was sought by the petitioner Hari Kishan Dass on the ground of non-payment of rent since 5-4-1968 to 5-8-1969.

The tenant-respondents denied the relationship of the landlord and tenants. The title of Hari Kishan Dass petitioner over the shop in dispute was also challenged. The execution of the rent note was denied. The adverse possession for the last 16 years as owner of the demised premises was asserted. It was claimed that they were in possession of the shop in dispute since 1953. It was averred that some suit with respect to the title of the shop in dispute was pending between Matu Ram and Hari Kishan Dass Landlord.

No arrears of rent were tendered. The authorities below came to the conclusion that there was no relationship of landlord and tenants. The rent note alleged to have been executed by the respondents was found to have been tempered with and therefore, it was held that the rent note was a void document and no note of the same could be taken

The learned counsel for the petitioner vehemently challenges the findings and contends that keeping in view the oral evidence led, read with the rent note, it is categorically proved that there was relationship of landlord and tenants. It would be prudent to infer the relationship of landlord and tenant especially when the respondents tenants have failed to prove their adverse possession. There is no such evidence as to constrain the authorities to hold that the respondents have become owner of the premises in dispute by adverse possession or that they came into possession of the said premises adversely and without the consent of the owner. It has been contended that rent note is not void and cannot be ignored. The tempering with it is of no consequence so far as the question in dispute is to be determined. It is contended that the judgment relied on viz Seth Loonkaran Sethiya and Others Vs. Mr. Ivan E. John and Others, was on its own facts wherein it was found as a fact that the document of title was tempered with materially which is not the case here.

Learned counsel for the respondent-tenants refutes the submissions made by learned counsel for the petitioner and contends that since Exhibit A-3 the rent note, dated 5-9-1962, on the basis of which the petitioner claims to be the landlord have been tempered with, it is a void document and no right flows out of the said document. Emphasis has been placed on judgment of Hon''ble the Supreme Court in Loonkaran''s case (supra).

In the course of arguments, it emerges that though the execution of the note Exhibit A-3 was denied yet the same stood proved. The respondent No. 1 in his statement before framing the issues stated that the documents Exhibits A-l to A-4 bear his signatures though the signatures on the other documents are denied. Be that as it is, the execution of the document Exhibit A-3 stands proved, in the statements of AW. 1 Des Raj, Stamp Vendor and AW. 2 Babu Ram the scribe as well as the petitioner. The signatures on the head note of Exhibit A-3 is further proved by AW. 8 Kushal Chand Jain.

Though the respondents did deny the execution of the rent note, but no substantial or reliable evidence has been brought on record with respect to its non-execution except his own self serving statement. No credulous evidence has been brought on record which may constrain me to hold that the document was not executed by the tenant Narsi Dass. The tenants did examine the expert but he did not depose anything with respect to the signatures. His only report is that the rent note Exhibit A-3 has been tempered with and gives the manner and the extent of tempering which will be discussed in the subsequent paragraphs of the judgment.

The respondents did claim the adverse possession in the written statement but benefit of any particulars with respect to the same. No date or year has been disclosed from which the adverse possession commenced and against whom. It is an established principle of law that a person claiming adverse possession has to prove that he was in possession of the premises claiming himself to be the owner to the knowledge of the public as well as the real owner of the said premises. The possession to be an adverse possession has to be hostile and open. No reliable evidence much less substantive has been adduced to prove the said claim of the respondents. The respondent have utterly failed to prove the adverse possession. There is no dispute, with the law laid down in Loonkara Sethia''s case (supra) wherein it has been specifically observed as under :

"If an alteration (by erasure, interlineotion or otherwise) is made in a material part of a deed, after its execution by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him'', from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation, convenant or promise thereby undertaken or made."

The judgment cited above further points out what may constitute material alteration. It has been observed as under :-

"A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void or which may otherwise prejudice the party bound by the deed as originally executed between the parties."

It was further observed :-

"In fact tempering of the deed substantially without the consent of the parties bound by it amounts to implied cancellation of the deed."

The law laid down in the judgment makes it obvious that tempering of document is to be considered as effecting materially the rights of the party to the deed and the deed will become void with effect from the date it has been tampered with. There is no plea that the deed was tampered with nor the parties ever went to trial on this issue. No evidence has been led with respect to the date on which the deed is alleged to have been tampered with, lathe absence of material pleas and evidence, the co-terminus for treating the rent note as void cannot be fixed. It would be proper to item-wise the alleged tampering in order to see its effect. I have been taken through the rent deed. The only changes brought about in it are : (1) that, rent note alleged to have been executed by the respondents is to the effect that the shop in dispute was taken on rent from the petitioner and it was described in the rent note that it was in the possession of Han Kishan Dass, petitioner as well as Jawala Parshad. While pointing out the tampering it was stated that the words ''Jawala Parshad'' have been scored out in the context that "Mamluka Wa Kabza Jawala Parshad Hari Kishan Dass Pisran...". In this sentence the word Jawala Parshad has been cut with ink, as it appears may be at a later stage. Similarly in the above sentence instead of saying ''Pisran'', ''ran'' word has been scored off and the same has been made to read ''Pis'', This attempt appears to have been made with the intention that relationship of landlord and tenant instead of being jointly with Jawala Parshad and Hari Kishan Dass, may be taken to be that of Hari Kisban Oass alone, la my considered view the alleged tampering has not effected the right of Hari Kishan Dass. At the most the tenant could claim to be the tenant of Jawala Parshad and Hari Kishan Dass jointly. The tampering with cannot be termed as a legal alteration particularly when Jawala Parshad who may be really affected by the altoation in the deed has not raised any objection with respect thereto He was examined as a witness and he has not raised any objection to the scoring of his name. Even if both Jawala Parshad and Hari Kishan Dass are treated to he the landlords, still the petition by Hari Kishan Dass alone being a joint landlord is maintainable in as much as Hari Kishan Dass as one of the co-owners as well as the landlords was entitled to the rent for himself or may be for himself and on behalf of Jawala Parsad. The tenant, in view of Section 116 of the Evidence Act cannot deny right of a person to be a landlord with whose consent he has entered into the premises. Here admittedly no title is being claimed by the tenants. They having miserably failed to prove the adverse possession, the only corollary and prudent inference that can be drawn is that they were in possession of the premises as tenants particularly when ownership of Hari Kishan Dass of the demised premises was not disputed.

Otherwise too, Exhibit A-3, the document which is alleged to have been tampered with and, therefore, is claimed to be a void document may not be enforced as such The landlord petitioner may not be able to enforce his rights under the document, but the same is certainly admissible to show the nature of the tenants possession. Admittedly, even if it is taken into consideration only for the purpose of ascertaining the nature of possession, it shows that the respondents entered into possession of the demised premises as tenants, Their possession of the demised premises as tenants continues to be so unless and untill they surrender the possession to the landlord which admittedly has never been done. There is nothing on record to show that the alleged tampering took place. Consequently if will be reasonable to infer that a valid rent note was executed under which the respondents came into possession of the premises in dispute as tenants, on the date of its execution i.e. on 5-9-1962. The tenants, once they accepted their status as such, cannot be permitted to approbate and reprobate in the same breath.

In view of my above observations, the finding of the Courts below to the effect that there was no relationship of landlord and tenant, is reversed. After going through the evidence oral as well as documentary on record including the house tax receipts etc. in which Narsi Dass has been described as tenant, I have come to the conclusion that the relationship of landlord and tenant does exist.

In view of the admitted fact that no rent has been tendered and even a petty rent of Rs. 15/- per month has not been paid to the landlord, the respondents are liable to be ejected on the ground of non-payment of rent.

In view of the above observations of mine the revision petition is accepted with costs. Costs Rs. 1000/-. The impugned order of the authorities below is set aside and the ejectment of the respondents from the demised premises is ordered.

At this stage, a prayer for time to vacate the demised premises has been made In my considered view, in view of the facts and circumstances of the case the fact that the respondents having entered into permissible possession of the demised premises, as tenants, have tried even to deny the title of the landlord over the property; they have come in Court with unclear hands and, therefore, are not entitled to dicretionary relief of the time vacating the premises