IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.252 of 2001. Judgment Reserved on: 06.05.2008 Date of decision: 20.06.2008. Sant Singh ….Petitioner Versus Smt.Ram Kaur & Another ….Responents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For the Respondents: Mr.Ashok Sood, Advocate. Dev Darshan Sud,J. This is the landlord’s revision against the judgment of the learned appellate Authority reversing the order of eviction passed by the learned Rent Controller against the respondents. The landlord approached the Rent Controller under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the `Act’) praying for a decree for eviction of the respondents Shri Darshan Singh and Shri Jaspal Singh from house No.127/A, Krishna Nagar, Shimla, on the grounds of, (a) arrears of rent; 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 (b) sub-letting, (c) unauthorized additions and alterations carried out by the respondent herein resulting in impairment of the utility and value of the rented premises. The landlord alleged that the premises were let out to Shri Dharshan Singh, respondent No.1 herein, in 1970 at Rs.80/- per month, but no written agreement was executed between the parties. It was alleged that the respondents are in arrears of rent from 1.3.1989 to 31.1.1990. The second allegation was that respondent No.1 Darshan Singh being the statutory tenant, he has, after the commencement of the Act, sublet the premises to respondent No.2 without the consent of the petitioner-landlord; in November, 1989, the respondents had undertaken extensive alteration work in the premises resulting in the material impairment of the value of the premises. The petition was contested by the respondents pleading that the premises were rented out to the respondents by one Shri Gian Chand. It is their specific stand that the respondents are tenants of the premises in their own right as also members of Hindu undivided family of which respondent No.1 Shri Darshan Singh became the Karta after the death of his father. The respondents pleaded that they are jointly in possession of the premises since 1969 and respondent No.1 has not ceased to occupy the premises although additional accommodation has been acquired as, the 3 families of both respondents No.1 and 2 are increasing in number and it is not possible to put up in the demised premises which consists of two rooms, kitchen, bath room and corridor which, is in-sufficient for their needs. It was alleged that the respondents never refused payment of rent but as the relation between the parties became strained as they did not vacate the premises as desired by the petitioner. The petitioner deliberately refused to accept rent from respondent No.1 who was Karta of the joint Hindu family of the respondents. Their stand was clear that respondent No.1 had not at any point of time parted with the possession with or without consideration in favour of respondent No.2 and despite the fact that additional accommodation has been acquired they are still living as one family. The learned Rent Controller, after trial, held that the respondents were in arrears of rent and that the premises were sub-let by respondent No.1 to respondent No.2. He held that the fact that additional accommodation has been acquired by respondent No.1 itself constituted subletting. On the issue of unauthorized repairs etc., the decision was against the landlord. The tenants appealed to the learned Appellate Authority. While appreciating on the point of fact and law, the appellate Authority held that the requirement of Section 14(2)(ii)(a), which reads:- 4 “Section-14(2)(ii)(a)- that the tenant has after the commencement of this Act without the written consent of the landlord, transferred his rights under the lease or sublet the entire building or rented land or any portion thereof.” was not satisfied. He held and rightly so that the two ingredients of subletting namely, (a) that the tenant must have parted with the possession of the premises or a part of the premises in favour of the sub-tenant; (b) the possession of such sub-tenant must be exclusive have not been established on the record. For this purpose the learned appellate Authority relied upon a number of judgments. Turning to the pleadings and evidence on record, the learned appellate Authority holds that on the question of subletting, there is no proper pleading. The simple allegation is that the premises have been sublet after the commencement of the Act which came into force in the year 1971. The learned appellate Authority held and rightly so that the respondents were tenants since 1970 and no written agreement was executed between the parties. The respondents were in-fact tenants which fact was acknowledged in the sale deed Ex.P-2 dated 9.1.1970 when these premises were purchased by the petitioner and his brother Gian Singh from one Sardar Prem Singh. A close scrutiny of the evidence showed that the respondents are brothers and in 1969 they were 5 aged about 9 and 10 years and that they were living jointly after the death of their father. They were working and messing together. This part of the testimony has remained un-rebutted. Ex.DZ is permission granted by the Municipal Corporation for a water connection in which `No Objection’ has been given by the landlord. Column Nos.5, 11, 12 and 13 of the application read:- “5. Name of person desiring whether owner or tenant. Jaspal Singh 11. Name and signature of Owner/ Tenant Jaspal Singh 12. Address of Owner/Tenant for correspondence. 127/2, Krishna Nagar, Shimla 13. No Objection of the owner Sd/-Sant Singh (in Urdu)” The necessity for getting this water connection was that it was the case of the respondents that prior to this they were taking water for domestic use from the Municipal tap. In Column-13, the petitioner has put his signatures granting permission to respondent No.2 to take the water connection. It has also come in evidence that two rent receipts Exts.DX and DY have been issued by the son of the petitioner in favour of respondent No.2 without any protest from the petitioner. 6 Adverting to the evidence of RW-1 Darshan Singh, the appellate Authority holds that the entire statement when read as a whole clearly establishes that the premises were taken for the entire family at which point of time respondent No.2 Jaspal Singh was only four years old. The family was living and messing together since the year 1969 and there has been no change in the joint status of the family. The learned appellate Authority concluded that the Rent Controller was clearly wrong in holding that the premises in-fact had been sublet by respondent No.1 to respondent No.2. Learned counsel appearing for the petitioner places reliance on the judgment of the Supreme Court in Kailasbhai Shukaram Tiwari vs. Jostna Laxmidas Pujara and another, RCR 27, holding that a relative residing with the tenant cannot be considered to be a member of the family. This case is clearly distinguishable on the facts as brought on record. In the present case, the specific pleadings and proof of the respondents is to the effect that the families of the respondents were living and messing together. It was a joint family and additional accommodation was required only when the size of the family started increasing as two rooms became insufficient to house two families. Learned Rent Controller clearly lost sight of the fact that two rooms only accommodate husband and wife and not the brother and wife and children etc. Surely, it cannot be 7 expected that two couples and children would crowd into that small tenement and with their growing age when they get married even their wives/families would live and sleep in the same accommodation as was occupied by their parents. It has also come in evidence that at the time when the premises were taken on rent, which fact has remained un-rebutted, the respondent constituted a Joint Hindu Family. There is also no evidence to show that respondent No.2 is in exclusive possession of the demised premises. From the application Ex.DZ and the two receipts Exts.DX and DY, it is amply clear that the petitioner is motivated in filing the petition on the ground of subletting for reasons other than asserting his legal right(s) for recovery of possession of the premises. Having accepted respondent No.2 to be a tenant before a statutory Authority, namely, the Municipal Corporation, there is no question of subletting. The two receipts Ex.DX and DY also having remained un-challenged by the petitioner. In these circumstances, there can be no question of the respondents parting with the possession of the premises or furnishing ground to the petitioner for decree of eviction. It has been conceded before the learned appellate Authority that the arrears of rent has since been paid. In the totality of the facts and circumstances of the case, considered from whatever 8 angle, I do not find any force in this revision petition. The eviction petition has been rightly dismissed by the learned appellate Authority. This revision is accordingly rejected. There shall be no order as to costs. June 20, 2008. (Dev Darshan Sud) (aks) Judge.