Ram Sarup Gupta vs Om Parkash and Others

J.V. Gupta, J.—This is tenant''s petition against whom ejectment application was demissed by the Rent Controller but eviction order has been passed in appeal.

2 The landlords Om Parkash Chopra and Gopal Chander Chopra sought the ejectment of their tenant Ved Parkash from the building in dispute, inter alia, on the ground that he had sublet the same to Ram Sarup Gupta and that the same had become unsafe and unfit for human habitation It was pleaded that the premises were let out to Ved Parkash vide rent note Ex. A2, dated 9th May, 1957, but subsequent thereto, the tenant sublet the same to Ram Sarup Gupta, (Respondent No. 2 in the ejectment application), who was in occupation thereof As regards the buildings in dispute being unsafe and unfit for human habitation, it was alleged that the building was a very old one, made of small bricks and was in a dilapidated condition; that one Chaubara i.e , back room out of the two rooms on the first floor, was in a deplorable condition, and its roof had fallen down ; that the walls had developed big and dangerous cracks, that even walls of the front room had developed cracks. The ejectment application was contested by both the Respondents, namely, Ved Parkash and Ram Sarup Gupta Ved Parkash, in his Written Statement, denied the allegations and stated that he was never the tenant in the property in dispute nor did he ever occupy it as a tenant and that he had been carrying on his business on Shivala Road, Ludhiana, for the last 40 year, and had no concern with the property in dispute. He further that he had signed the rent note Ex A2) as surety and not as a tenant and that the possession had been delivered to Messrs. Amritsaria Mal Vasdev who was the actual tenant of the property under the landlords, and thus, occupy the premises in dispute and that since he (Ved Parkash) was not the tenant, the question of his paying the rent did not arise nor did he ever transfer the possession to Respondent No. 2, Ram Sarup Gupta, as alleged because he (Ved Parkash) never occupied the premises as such In the Written Statement filed on behalf of Ram Sarup Gupta, Respondent No. 2, he denied that Ved Parkash was the actual tenant of the premises in dispute. He disputed the validity and the genuineness of the rent rote A.2, and pleaded that even if there were any such rent note it was collusive and fake, and not binding on him. According to him, Ved Parkash neither delivered possession of the premises in question nor did he ever occupy the same whereas he had been running his business on different premises for the last 45 years ; that the tenancy of the premises in dispute had been settled direct between Messers Amritsaria Mal Vasudev, through him, and the landlords in the year 1955, originally @ Rs. 15/- p.m. for the front Chobara, courtyard and the demolished back room but lateron at the time of settlement the landlords insisted upon a surety, as a device to ensure regular payment of the rent, and it was, thus that he (Respondent No 1), being known to both the parties and having helped in the renting out of the premises, stood surety for the payment of the rent. It was further arranged that the rent would be received from Messers. Amritsaria Mal Vasudev direct but nominally through the said surety''s name, i.e , Ved Parkash and receipts of payments, if issued, would also be in his name whereas said Messers. Amritsaria Mal Vasudev would be the rent and actual tenant ; that the rent was increased to Rs 18/ p.m. with effect from February, 1956, and then with effect from February, 1957, to Rs. 28/- p.m. when a tin roof was provided en the demolished back room and that the tenant, Ram Sarup Gupta, had been paying rent through cheques and sometimes in cash, and, thus, there being a direct relationship of landlord and tenant between the parties. It was denied that the premises were in a dialapidated condition, as alleged. Earlier, the landlords had filed a suit for permanent injunction against the tenants restraining them to make constructions, additions and alterations, and under the cover of that suit, the landlords, during the pendency of the suit and in the absence of the tenants on 11th July, 1979, at night, removed and took away the roof of the back room with a view to pressurising them to vacate the premises and also creating false evidence for eviction.

The learned Rent Controller found that rent note Ex. A2 was a mere paper transaction and that Ved Parkash was not the tenant of the landlords but was nominated as a go between the landlords and the tenant Ram Sarup, and as such, he was acting as a mediator for the purpose of realisation of the rent regularly. It was held that no relationship of landlord and tenant existed between the landlords and Ved Prakash, and that, in fact, Ram Sarup was the tenant on the demised premises under the landlords. Thus, it was proved on record that Ved Parkash had not sublet the premises to Ram Sarup at alleged ; instead Ram Sarup was the direct tenant under the land lords. It was further found that the premises were lot unsafe and unfit for human habitation as alleged. It was further held that the tin roof had been removed by the landlords on 11th July, 1979, with the apprehension of falling of the sky lab and the matter was reported to the police. With these findings the ejectment application was dismissed. In appeal, the learned Appellate Authority reversed he said findings of the Rent Controller and came to the conclusion that in view of rent note Ex. A2, dated 9th May, 1957, Ved Parkash was the tenant on the demised premises According to the Appellate Authority, the firm Messers Amritsaria Mal Vasudev was not the direct tenant but a sub-tenant. On the question of the building being unsafe and unfit for human habitation, the learned Appellate Authority found that although the cracks in the building were not proved to be so extensive that they had made the building unsafe but since the roof of the back room had fallen and the room was without a roof, the landlords could get the tenants ejected for reconstruction. On these findings. the eviction was ordered. Aggrieved with it, the tenant has filed this petition.

Learned Counsel for the Petitioner contended that the learned Rent Controller on the basis of the documentary evidence on record had rightly come to the conclusion that Ram Sarup was the teanant since the year 1955, and that the rent note Ex A.2 was a mere paper transaction Ved Parkash never occupied the premises as such, under the said rent note. According to the learned Counsel, the said finding has been reversed in appeal by the Appellate Authority illegally and on submises and conjectures. It is contended that no finding has been given that Ved Parkash ever occupied the premises in dispute, and thus, Ram Sarup, Petitioner, is the direct tenant from the very inception of the tenancy, and even prior to the rent note A 2. Thus, the question of subletting by Ved Parkash did not arise, it is argued As regards the building being unsafe and unfit for human habitation, it is contended that the roof of the back room was of a tin shed, and had been removed by the landlords themselves; therefore, the finding of the Rent Controller in this behalf was correct. On the other hand, learned Counsel for the Respondents-landlords submitted that on the appreciation of the entire evidence, the learned Appellate Authority had found that Ved Parkash was the tenant and not Ram Sarup, Petitioner, and that being a finding of fact could not be interfered with in revisional jurisdiction. According to the learned Counsel, likewise on the question of the building being unsafe and unfit for human occupation, the expert evidence led by the landlords has been accepted by the Appellate Authority and that being so, the said finding is binding on this Court.

I have heard the learned Counsel for the parties, and also gone through the relevant evidence on record. The main-stay of the argument of the learned Counsel for the landlord is rent note A.2. The execution of the rent note by Ved Parkash is not disputed. From the documentary evidence on record, it has been amply proved that this rent note was a mere paper transaction The firm Messers. Amritsaria Mal Vasudev had been occupying the premises since April, 1955, which is clearly proved from the documentary evidence in the nature of RW5/3 to RW5/31 which are the copies of the Bahi entries of the Petitioner firm from 1956 to 1965. Not only that, he also produced electricity bills, Ex RW5/32 to RW5/44, relating to the year 1956. The Petitioner also brought on record certain orders booked with the Petitioner-firm in the \\ ear 1956-56 vide Ex RW5/58 to RW5/66. Thus, from this documentary evidence, the Rent Controller rightly concluded that the Petitioner firm was in occupation of the premises as tenant since the year 1955(sic). Apart from that, there is absolutely no evidence on record to hold that Ved Parkash ever occupied the premises as a tenant under the rent note Ex. A2. No such finding hat been given even by the Appellate Authority. The learned Counsel for the landlords/Respondents was unable to point out any evidence on record to show that Ved Parkash ever occupied the premises in dispute as a tenant. In this behalf, however, he referred to the statement of the landord Puran Chand but I do not find any substance therein. Ved Parkash while in the witness-box categorically stated that he never occupied the premises in dispute and had been carrying on his business in different premises for the past 40 years. In cross-examination, no such question was ever put to him that he ever occupied the premises in dispute. That being so, the approach of the Appellate Authority is wrong, illegal and misconceived, while holding that Ved Parkash was the tenant simply because he had executed the rent note A 2. In the circumstances, when Ved Parkash never occupied the premises as a tenant, the said rent note was a mere paper transaction, the same having been made by the landlords with a view to ensuring regular payment of the rent by the Petitioner firm.

Apart from the above position the tenant produced P.C. Mingla RW11 , the bank clerk, who categorically stated that the cheques issued by the Petitioner firm in the name of Ved Parkash used to be enchased always by the landlords Ved Parkash never received any payment thereunder Copies of the said cheques have been brought on record as RW12/1 to RW12/9 to show that the payments used to be received always by the landlords

At this stage, a perusal of the rent note A.2 also reveals that the stamp paper for the purpose was purchased somewhere in the years 1956 but the digit ''6'' had been changed to ''7'', and, thus, there was interpolation. In any case, taking all the facts and the circumstances of the case into consideration, which are proved on record, since Ved Parkash never occupied the premises in dispute as a tenant, the rent note A 2 could not be relied upon to hold that he was the tenant thereunder. It was a mere paper transaction. The tenant, in fact, was the Petitioner firm, who was there so even prior to the said rent note and continued to occupy the premises as such and paying the rent regularly to the landlords although through Ved Parkash. Thus, the finding of the Rent Controller in this behalf that Ved Parkash was not the tenant is restored, and that of the Appellate Authority is hereby set aside, being illegal and improper.

As regards the question of building being unsafe and unfit for human habitation, the argument raised on behalf of the landlords that the evidence of their expert was accepted by the Appellate Authority is not borne out from the record. The Appellate Authority rather observed in this regard as follows:

No doubt the cracks are not proved in the building to be extensive that they have made the building unsafe.

What weighed the Appellate Authority was that since the roof of the back room had fallen and the room was without a roof the landlords can get the tenants ejected for reconstruction. The finding is again wrong and illegal because the roof of the back room has never fallen. The roof was made of tin shade which, according to the tenant, had been removed by the landlords themselves. Even if it be assumed for argument sake that it was not removed by the landlords, the removal of the said tin-shade roof would not per se render the building unsafe and unfit for human habitation because the beams on which the said tin shad; roof was resisting are still intact. The tenant has brought on record a copy of letter, Ex RW5/2, sent under postal certificate to the police authorities for taking action against the landlords for their removing the said tin shade roof Thus, in the circumstances, the finding of the Rent Controller in this behalf was correct whereas it has been set aside in appeal arbitrarily, on surmises and conjectures. The removal of the said roof by the landlords themselves did not render the building unsafe and unfit for human habitation.

One of the contentions raised on behalf of the tenant-Petitioner is that since the landlords alleged the Petitioner to be the sub-tenant, this ground was not available to the landlords against the Petitioner. In any case, the said question does not arise here in view of the finding that the building has not become unsafe and unfit for human habitation, as alleged.

As a result of the above discussion, this petition succeeds, and the order of the Appellate Authority is sat aside and that of the Rent Controller dismissing the ejectment application is restored with costs.