SUDARSHAN TANDON Vs. PRAN NATH SHARMA

JUDGEMENT

(1.) THIS order shall dispose of two petitions i.e. C.R. Nos. 3777 and 3778 of 2003. Both the petitions have been filed by the tenant-petitioner No. 1 and her sub-tenant - petitioner Nos. 2 and 3 under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity 'the Act') against the concurrent findings of facts recorded by both the Courts below holding that tenant-petitioner No. 1 Smt. Sudarshan Tandon has sublet the demised premises to tenant-petitioner Nos. 2 and 3 without any written permission from the landlord-respondent. It has been proved by cogent evidence that the demised premises were rented out to petitioner No. 1 for running a school who left India and has settled in U.S.A. in 1980. It is established that physical exclusive possession is with sub-tenant petitioner Nos. 2 and 3. The entire control of the demised premises has been given to respondent Nos. 2 and 3. Both the Courts below have rejected the contention of the tenant-petitioner that she is controlling the school through petitioner Nos. 2 and 3. The argument has also been rejected that petitioner No. 2 is running the school under the guidance, supervision and on the terms dictated by petitioner No. 1. The document placed on record in the shape of account books Exs. R.2 to R.8 have not been accepted because these documents have been prepared after the institution of the proceedings and the evidence has been created in order to support the stand taken in the reply to the ejectment petition. It is appropriate to mention that the ejectment petition was filed on 3.2.1999. Some of the documents have been discarded on the ground that they are forged or self serving documents created for the purposes of supporting their case. Accordingly, both the Courts below have found that petitioner Nos. 2 and 3 have not been managing the school on the terms, guidance and ownership of tenant-petitioner No. 1. They have been managing the school independently which has been sublet by petitioner No. 1 to petitioner Nos. 2 and 3 without the consent of the landlord.

(2.) SHRI Puneet Jindal, learned counsel for the tenant-petitioner has argued that both the Courts below have committed grave error in law by their inability to distinguish between the constructive possession and physical possession. According to the learned counsel constructive possession of the premises continues to be with the tenant-petitioner No. 1 whereas physical possession might have been with petitioner Nos. 2 and 3. Learned counsel has emphasised that once petitioner No. 1 is in a position to oust the petitioner Nos. 2 and 3 being armed with legal right then in law it must be held that tenant-petitioner No. 1 has full control of the demised premises and the petitioner cannot be ejected on that ground. In support of his submission, the learned counsel has placed reliance on para 6 of the judgment of the Supreme Court in the case of Jagan Nath v. Chander Bhan, 1988(1) RCR(Rent) 629 (SC) : 1988 SC 1362.

(3.) AFTER hearing the learned counsel for the parties, I am of the considered view that these petitions are liable to be dismissed because the possession of the property is admittedly with petitioner Nos. 2 and 3 and they are under obligation to explain in what capacity they are continuing to be in possession. Their case that they are employees working under the guidance and supervision of petitioner No. 1 has not been accepted because the evidence produced by them is either self serving and forged or it is created after the filing of the petition to set up the afore-mentioned plea. No explanation has been furnished by the tenant-petitioner No. 1 and petitioner Nos. 2 and 3 explaining the possession of petitioner Nos. 2 and 3. In these circumstances, the ratio of the judgment of the Supreme Court in the case of Nihal Chand (supra) would be fully applicable and it is safe to assume that there is sub- letting of the premises by the tenant-petitioner No. 1 to petitioners Nos. 2 and 3. Such a transaction is always a clandestine arrangement between the tenant and the sub-tenant. More often no direct evidence showing payment of rent or other arrangements is available. In such circumstances, a legitimate inference is permissible as has been observed by the Supreme Court in the case of Rajbir Kaur v. S. Chokesiri and Co., 1988(2) RCR(Rent) 328 (SC) : (1989) 1 SCC 19. In this regard, the observations of their Lordships read as under :