Nanak Chand vs Sansar Chand and another

Rajendra Nath Mittal, J.—This revision petition has been filed by Nanak Chand tenant against the judgment of the Appellate Authority, Amritsar, dated 18th December, 1975, affirming the judgment of the Rent Controller by which he has been ordered to be evicted.

Briefly, the case of Sansar Chand landlord is that he gave two quarters bearing Nos. 20 and 21 in Bassaon Building, Chowk Putlighar, Amritsar, to Nanak Chand tenant on a monthly rent of Rs. 12/-. He inter alia pleaded that the latter had sublet one quarter to Bua Ditta respondent No. 2, without his consent or permission. He also took other grounds for ejectment but they do not survive in the revision petition. The tenant contested the application for ejectment and controverted the allegations of the landlord. He denied that he had sublet one of the quarters to respondent No 2.

3 The Rent Controller held that the tenant had sublet one quarter to respondent No. 2 without the consent of the landlord, Consequently, he ordered the ejectment of the respondents On appeal by the tenant, the Appellate Authority affirmed the finding of (sic) and dismissed it He has come up in revision against that order to this Court

The only question that arises for determination is whether the tenant had sublet quarter No. 21 to Bua Ditta Before dealing with the oral evidence of the witnesses, it may be mentioned that the two quarters consist of one room and one Verandah each and a common court yard. Neither of them has any kitchen, bath room or latrine.

The case of the petitioner is that Bua Ditta respondent No. 2 is his sister''s husband and is suffering from Chambal which is eczema of chronic type He is dependent on the petitioner and not doing any work. He is living in quarter No. 21 for the last more than 28 years In order to prove the aforesaid allegations, the petitioner has produced six witnesses besides appearing himself as a witness. Gurdas Mal R.W. 2 stated that respondent No. 2 was the tenant''s sister''s husband and was living with him. They had a joint mess. Bua Ditta was suffering from Chambal and was unable to do any work. He was being supported by Nanak Chand. He was not cross-examined that Bua Ditta did not have a joint mess with Nanak Chand. That shows that that part of the statement has been accepted by the landlord Narinder Singh R.W. 3, Kirpal Singh R.W. 4 and Ravinder Math R.W. 5 supported Gurdas Mal R.W 2. Ravinder Nath R.W. 5 is a tenant in the same building for the last about 20 years. His statement was recorded on 18th April, 1973. He further stated that he had been seeing Nanak Chand and Bua Ditta living together since his arrival in the building No question was put to him in cross examination regarding the period since when Bua Ditta was living with the tenant. That means that the landlord also admits that part of the statement.

Bua Ditta respondent No. 2 appeared as his own witness and stated that Viran Devi sister of Nanak Chand was married to him. They had a joint residence in the quarters and had a joint mess. The whole of his family was dependent on Nanak Chand. He was suffering from the disease and was unable to do any work. His son Sat Pal was employed in the Railways at Ludhiana and was paying about Rs. 100/- P.M. to Nanak Chand who was working in a power loom factory and was selling kulfa during the evening time on a Rehri. The whole of the rent of the demised premises was paid by Nanak Chand and he never paid anything to Nanak Chand either as rent or for maintaining his family In cross-examination, a question was put to him that he was not maintained by Nanak Chand but by his two sons. From the question it is evident that it is not disputed even by the landlord that Bua Dittu is not doing any work. That appears to be on account of the disease from which he has been suffering. He plainly admitted that one of his sons was working in the Railways at Ludhiana and from out of his salary, he was sending about Rs. 100/- per month to Nanak Chand and was maintaining himself He categorically denied that his other son was doing any work Nanak Chand R.W. 7 also made a similar statement. In addition, he said that he was getting about Rs. 200/- to Rs 2 0/ from the factory and was earning about Rs. 100/- by selling ice cream every month. It is evident from the statement of Nanak Chand that his total income about Rs. 350/- P.M. with which he was maintaining his family and that of Bua Ditta who was closely related to him It is further evident that Bua Ditta''s son was sending about Rs. 100/per month to him for supplementing the income.

An argument has been raised by Mr. Sarin that the amount of Rs. 100/- per month sent by Sat Pal son of Bua Ditta to Nanak Chand was in fact rent of the quarter in which he was residing I am not convinced with the argument There is no source of income of Bua Ditta. In the circumstances, it is unimaginable that he was paying Rs. 100/- per month as rent to his brother in-law. In our country, the brothers do help their sisters and their husbands in time of adversity and it is not improbable that Nanak Chand was maintaining his sister, her husband and the family. His income was meagre and it was being supplemented by Bua Ditta''s son

The respondents also produced Manohar Lal R.W. I. Clerk in the Municipal Committee, for proving the birth entry of the daughter of Bua Ditta on 11th October, 1959. The informant regarding the birth of the daughter to Bua Ditta was no other a person than Nanak Chand who is the maternal uncle of the newly born baby. That further shows that the tenant has been helping his sister and brother-in-law in every way. It further supports the statement of Ravinder Nath R.W. 5 and shows that Bua Ditta has been living in the house prior to that date. It may be mentioned that the application for ejectment has been filed in 1973 on the ground of subletting The land lord has been collecting rent from the tenant and it is unimaginable that for all these years he did not come to know that the tenant had sublet the quarter to Bua Ditta It is also relevant to point out that the landlord himself did not appear in the witness box and produced his attorney Balraj Krishan, aged only 20 years That shows that he was unable to support his case.

The landlord, in order to prove that the premises had been sublet, got produced the ration card of Bua Ditta, the application for grant of electric connection in the quarter filed by Sat Pal son of Bua Ditta and voters'' list pertaining to the said two quarters wherein Bua Ditta was shown to be residing in quarter No 3827 and Nanak Chand in quarter No 3 26 The Learned Counsel for the landlord has vehemently urged that from the aforesaid documents it is evident that Bua Ditta was living separately from his brother-in-law, otherwise there was no necessity to get a separate ration card and a separate electric connection. He has further argued that the entry of the names of the said persons against different quarters in the voters'' list further affirms that one of the quarters had been sublet by the tenant to Bua Ditta. He has also urged that no plea was taken in the written statement that Bua Ditta was the brother in law of the tenant and that the latter had a joint mess with him and, therefore, the evidence led regarding these matters should not be taken in to consideration. I am not convinced with the contention of the Learned Counsel In order to decide such questions, the evidence as a whole has to be appreciated The facts that the parties are nearly related and that Bua Ditta is not doing any work and has no other source of income are the main factors which are to be taken into consideration in deciding the matter. Only one son of Bua Ditta is employed in the Railways and is posted out at Amritsar. He is helping his uncle to the extent of about Rs. 100/- per month, who is incurring the expenses of the joint mess. It is not an uncommon feature. It is difficult to believe that the amount of Rs. 100/- per month is paid by him towards the rent of the quarter occupied by Bua Ditta. A person of his status cannot afford to pay Rs 100/- as monthly rent.

There are several members of the family of Bua Ditta. The tenant had two rooms with him. In the circumstances, if Bua Ditta and his family members are staying in one room, it cannot be said that the tenant has sublet the premises. Similarly, if a separate ration card has been prepared for Bua Ditta''s family, it does not lead to that inference. The two rooms constitute two different quarters. Naturally, there should be two electric connections in the quarters. If Bua Ditta''s son made an application for restoration of electric connection, that will also not show that Bua Ditta was a sub-lessee.

The contention that no plea was taken by the (sic) tenant in the written statement that Bua Ditta was his brother in haw and that he was staying with him has also no substance. The landlord was alive to this fact and he, in the first instance himself led evidence to the effect that they were not related to each other. In this regard reference may be made to the statement of Saran Dutt A.W. 6 who, in examination-in-chief, said that Bua Ditta respondent No 2 and Nanak Chand were not related to each other. However, in cross-examination in that regard he said that he had no personal knowledge if Bua Ditta and Nanak Chand were related to one another. Thereafter, the tenant led his evidence and examined as many as six witnesses, besides himself. They also deposed about the relationship but no objection was raised by the landlord. All the aforesaid circumstances go to show that the parties knew the case of each other very well.

It has been settled by the Supreme Court in Naqubai Ammal v. B. Shama Rao AIR 1956 S.C. 591, that the principle that the evidence led on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties, has no application to a case where parties go to trial with the knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto The absence of a specific pleading on the question is a mere irregularity which causes no prejudice to the defendant. Following that view, a Division Bench of this Court, to which I was a party, held in Ram Niwas and Another Vs. Rakesh Kumar and Others, that if the parties know that a point arises in a case and they produce evidence on it, though it does not find place in the pleadings and no specific issue has been framed on it, the Court can still adjudicate thereon. It has been further observed that none of the parties can be allowed to say that the court cannot decide the matter because it was not raised in the pleadings.

The Learned Counsel for the landlord made a reference to Supreme Court decision in Dr. Vijay Kumar and others v. M/s Raghbir Singh Anokh Singh 1973 R.C.R. 520. That case is, however, distinguishable. In that case, the Rent Controller had held that half of the shop was exclusively occupied by the second and third appellants and that the first appellant had parted with possession of that portion to them. That plea had been affirmed by the Appellate Authority and the High Court. A plea was sought to be raised before the Supreme Court for the first time that the first appellant being the father of the other two appellants established them in the business and permitted them to occupy half portion of the shop for that purpose. The learned Bench observed that the argument was plausible but it could not be entertained at that stage as no such plea was ever taken in their statement and was not pressed before the Rent Controller, the Appellate Authority and the High Court. In the pie-sent or however, the evidence was lead by both the parties and the (sic) as raised before both the Authorities. It may be high-lighted that even in that case the Supreme Court observed that the argument was plausible which clearly goes against the landlord.

At this stage. I may refer to a decision of this Court in Shiv Parshad v. Birj Lal (1966) 68 P.L.R. 419, wherein on the ground of close relationship it came to the conclusion that the sub-tenancy was, not proved In that case, the tenant had allowed his wife''s brothers to live in a portion of the demised house. It was held by Falshaw, C.J., that in view of the close relationship of the sub-tenants with the tenant, no inference could be drawn beyond that the tenant had allowed his brothers-in-law to live in a portion of the house as licencees. Similar view was taken in Syed Feroze Ali Shah v. Syad Jamil Ali Shah 1980 (2) R.C.R. 320, by D.S. Tewatia, J. In that case brother of the tenant used to sit on the shop. There was no evidence to show that the tenant had been receiving any consideration from his brother. The learned Judge held that it could not be said that the tenant had parted with the possession of the shop.

Faced with that situation, the Learned Counsel for the landlord sought to urge that the two Courts gave a concurrent finding of fact that the premises had been sublet by the tenant and this Court in revision should not interfere with that finding To support his contention, he made a reference to Pandit Kishan Lal Vs. Ganpat Ram Khosla and Another, . I am not impressed with this contention of the Learned Counsel as well. The language of section 15 of the East Punjab Urban Rent Restriction Act, 1919, is very wide. It provides that the High Court may on the application of any aggrieved party, call and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation there to as it thinks fit Thus the Court can go into not only legality but propriety also of the order. The section has been interpreted by the Supreme Court in Nanak Chand v. Inderjit 1969 R.C.R. 887 wherein it has been held that the revisional power conferred on the High Court u/s 15 (5) of the Act is wider than that conferred by section 115 of the Civil Procedure Code. u/s 15 (5) of the Act the High Court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the finding by the Authorities about the requirement of the landlord u/s 13(3) (a) (i). The same view was taken by P.C. Jain, J in Karam Chand Joshi v. Shri Kartar Singh 1977 R.C.R. 327, wherein it was held by the learned Judge that generally a pure finding of fact does not deserve to be set aside in revision, but if on consideration of the entire evidence that has been led by the landlord respondent, it is not possible to arrive at that conclusion which has been reached by the appellate authority, then certainly it is within the powers of the High Court to interfere with that finding Tewatia, J. in Syed Feroze Ali Shah''s case (supra), also took the same view and held that only proper Concurrent findings are binding on the High Court To find out as to whether the findings are proper, the Court is entitled to go into the evidence and reappreciate the same in order to point out that the findings rendered by the Courts below are lacking in propriety.

I am in respectful agreement with the above cases. Pandit Kishan Lal''s case (supra) referred to by the Learned Counsel for the petitioner is under the Transfer of Property Act. There is no observation to the effect that the concurrent findings of fact arrived at by the Tribunal under the Act cannot be set aside by the High Court in revision. I consequently reject the contention of the Learned Counsel.

After taking into consideration the aforesaid facts and circumstances, I am of the opinion that it is not proved on the record that the tenant had sublet the premises to Bua Ditta.

For the aforesaid reasons, I accept the revision petition, set aside the orders of the authorities below and dismiss the application for ejectment. No order as to costs.