Case: MADAN MOHAN SINGH Vs. VED PRAKASH ARYA

court by which trial court held that defendant was tenant of the premises. The trial court framed the Issue No.4, whether the defendant is a tenant ? The trial court while answering Issue No.4 recorded the following finding: Therefore, the defendant has to be held to be a tenant in respect of the booth in question notwithstanding the fact that the defendant failed to prove any documents pertaining to the tenancy. Therefore, this issue is also decided in favour of the defendant and against the plaintiff. 17. The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. The present is not a case where defendant claimed any rent agreement. The defendant has come up with a case that he is paying rent at the rate of Rs.450/- per month. Defendant in his written statement has stated that plaintiff has never issued any rent receipt. Thus, present is not a case where there was any rent receipt filed by the defendant in support of his claim of tenancy. The defendant himself appeared as DW-2. In cross-examination following statement was made by DW-2: No rent note was written in December, 1976 regarding booth in question. I have no receipt in my possession with regard to payment of rent. I maintain books of account in the regular course of business with regard to the business being carried out in the shop. I cannot produce the account books with regard to the business being done in the shop. I have not maintain any account with regard to payment of rent to the plaintiff. I have sent the rent by money order to the plaintiff, but the plaintiff never received any money order and I cannot produce any receipt of the money order vide which the plaintiff would have accepted the rent with regard to the premises. 18. This court had laid down in C.M. Beena and another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595, that conduct of the parties before and after the creation of relationship is relevant for finding out their intention. 19. When there is no evidence of taking premises on rent and it is admitted by DW-2 that he had not maintained any record of accounts of payment of rent, there is no base for holding that relationship of landlord and tenant is proved. The trial court itself has held that defendant had failed to prove any documents pertaining to tenancy. The First Appellate Court, thus, has rightly come to the conclusion that findings of the trial court that the defendant is a tenant is based on the surmises and conjectures. 20. One more fact to be noticed is that the defendant claimed his tenancy with effect from 18.12.1976. On 18.12.1976, admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises. 21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties. As noted above, Chief Administrator in its order dated 04.03.1986 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not. 22. We may also notice that the High Court while deciding the Regular Second Appeal filed by the defendant has also decided Regular Second Appeal filed by the appellant-plaintiff which arose from the Suit No.77 of 1986 filed by the plaintiff seeking relief for permanent and mandatory injunction, restraining the defendant from using the Booth No.186 for cycle repairs. The Regular Scond Appeal No.2610 of 2002 filed by the plaintiff-appellant has also been dismissed. In view of our decision that Suit No.77 of 1986 filed by the appellant deserved to be decreed and had rightly been decreed by the First Appellate Court, the judgment of the High Court in RSA No.2610 of 2002 is of no avail.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. There is no dispute between the parties that Booth No.186 was allotted to the plaintiff-appellant by order dated 20.06.1972. The condition Nos.12, 13 and 19 which are relevant for the present case are as follows:12. You will have no right to transfer your rights under this lease directly or indirectly. You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties, no fragmentation of the building be permissible.13. The building shall be used only for the purpose it is leased out cattle poultry feed and for no other purpose.19. The undersigned shall have full rights, power and authority at all times to do through his officers or servants all acts and things which may be necessary or expedient for the purpose of enforcing compliance with all or any of the terms conditions and reservations herein contained and to recover from you the cost of doing any such act or thing.11. It is also admitted that a partnership deed dated 18.12.1976 was executed both by the plaintiff and the defendant under which deed it was decided and agreed mutually to carry out the business of cycle repairing etc. in Booth No.186. It is relevant to notice that the execution of partnership deed was not disputed by the defendant, Ved Prakash but his case was that he took premises on rent at the rate of Rs.450/- per month on 18.12.1976. The partnership document was termed as sham document by the defendant.12. As noted above, the premises was resumed by the Estate Officer by order dated 09.09.1980 which was issued on 15.04.1982 on the ground that premises is not being used for the purpose for which it was granted but it was being used for cycle repairing. Against the order dated 09.09.1980 the respondent himself filed an Appeal No.21 of 1984 where the plaintiff-appellant had also appeared and claimed that the defendant is only a servant of the plaintiff. The Chief Administrator allowed the appeal holding that misuse having stopped the allotment be restored to hirer, Madan Mohan Singh. The Chief Administrator also after considering the arguments of the parties came to the conclusion that Ved Prakash was a servant of the hirer.14. We have noticed Clause 19 of the Allotment Order in which, it is the Estate Officer, Chandigarh Administration who has full rights, power and authority for the purpose of enforcing compliance with all or any of the terms, conditions of allotment dated 20.06.1972. It is further relevant to note that Booth was resumed by the Estate Officer by order dated 09.09.1980 (issued on 15.04.1982) on the ground of uses of the premises not for cattle poultry feed but cycle/autorickshaws repairing. The Chief Administrator in his judgment dated 13.03.1986, which order was passed in appeal filed by the defendant against the resumption order, has observed after hearing the argument of hirer that the respondent is only a servant of the hirer. The above observation and finding of the Chief Administrator cannot be wished-away by the defendant as irrelevant. The High Court while referring to the order of the Chief Administrator has only observed that the Appellate Court has misread that defendant had taken a stand that he was merely a servant, which is against the record. When the Administrator has noted the case of the parties and came to the conclusion that defendant was a servant of the hirer, those findings cannot be said to be against the record. The specific findings of the Chief Administrator are The consideration of argument put forward by Sh. Kaushal and that of the evidence adduced before me by him lead me to conclude that the appellant being a servant of the hirer has no cause of action to agitate the impugned order. Further the Chief Administrator has held that there is no justification to deprive the hirer of the Booth. In view of the order of Chief Administrator dated 13.03.1986, the appellant-plaintiff was clearly entitled to the possession and user of the Booth but when the possession was not handed over by the defendant to the appellant, he had to file the suit for mandatory injunction.17. The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. The present is not a case where defendant claimed any rent agreement. The defendant has come up with a case that he is paying rent at the rate of Rs.450/- per month. Defendant in his written statement has stated that plaintiff has never issued any rent receipt. Thus, present is not a case where there was any rent receipt filed by the defendant in support of his claim of tenancy. The defendant himself appeared as DW-2. In cross-examination following statement was made by DW-2:No rent note was written in December, 1976 regarding booth in question. I have no receipt in my possession with regard to payment of rent. I maintain books of account in the regular course of business with regard to the business being carried out in the shop. I cannot produce the account books with regard to the business being done in the shop. I have not maintain any account with regard to payment of rent to the plaintiff. I have sent the rent by money order to the plaintiff, but the plaintiff never received any money order and I cannot produce any receipt of the money order vide which the plaintiff would have accepted the rent with regard to the premises.18. This court had laid down in C.M. Beena and another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595,  that conduct of the parties before and after the creation of relationship is relevant for finding out their intention.19. When there is no evidence of taking premises on rent and it is admitted by DW-2 that he had not maintained any record of accounts of payment of rent, there is no base for holding that relationship of landlord and tenant is proved. The trial court itself has held that defendant had failed to prove any documents pertaining to tenancy. The First Appellate Court, thus, has rightly come to the conclusion that findings of the trial court that the defendant is a tenant is based on the surmises and conjectures.20. One more fact to be noticed is that the defendant claimed his tenancy with effect from 18.12.1976. On 18.12.1976, admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises.21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties. As noted above, Chief Administrator in its order dated 04.03.1986 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not.22. We may also notice that the High Court while deciding the Regular Second Appeal filed by the defendant has also decided Regular Second Appeal filed by the appellant-plaintiff which arose from the Suit No.77 of 1986 filed by the plaintiff seeking relief for permanent and mandatory injunction, restraining the defendant from using the Booth No.186 for cycle repairs. The Regular Scond Appeal No.2610 of 2002 filed by the plaintiff-appellant has also been dismissed. In view of our decision that Suit No.77 of 1986 filed by the appellant deserved to be decreed and had rightly been decreed by the First Appellate Court, the judgment of the High Court in RSA No.2610 of 2002 is of no avail.