BANARSI DASS Vs. FAQIR CHAND

JUDGEMENT

(1.) An open she of land forming part of a bigger plot known as braham sarai belonged to one Kishore Chand who let it out to Banarsi Dass petitioner on July 17. 1950, for a period of 15 years ending July 16, 1965, by means of a written lease-deed Exhibit A-2. Kishore Chand died in 1964 leaving behind him two daughters, two sons namely Faqir Chand and Parkash Chand, and a grandson namely Prem Chand son of Telu Ram. After the expiry of the period of the original lease-deed, a fresh lease-deed was executed by Parkash Chand son of Kishore Chand in favour of the petitioner for a period of one year on July 27, 1965. This is Exhibit R.1. The tenancy was however, continued even after the expiry of the period covered by the lease-deed Exhibit R.1 as the rent for two subsequent years was received by Parkash Chand against two separate receipts. He received rent for another year in advance on July 16, 1966, vide receipt Exhibit R. 2, and for the third year in advance by the receipt, dated July 23, 1967 Exhibit R. 3. Before the expiry of the period covered by the receipt Exhibit R. 3, Faqir Chand and his two sisters filed an application for the ejectment of the petitioner from the land in question on October 28, 1967. Later on Parkash Chand and Prem Chand the only other heirs of Kishore Chand were also joined as parties to the petition for ejectment. Eviction of the petitioner was sought on three grounds, namely that of (i) sub-letting without the written consent of the landlord: (ii) using the rented land for a purpose other than that for which it was leased; and (iii) on account of non-payment of rent with effect from July 17, 1965, i.e. for the entire period subsequent to the expiry of the period of the lease-deed Exhibit A.2.

(2.) By his judgment, dated November 26, 1968, the Rent Controller recorded findings against the landlord-respondents on all the three grounds, and dismissed the application for eviction of the petitioner. The appeal of the landlord-respondents, was, however, allowed by the judgment, dated December 10, 1971, of Shri Raghbir Singh, the Appellate Authority. He allowed the eviction of the petitioner on all the three grounds. He held that all the five heirs of Kishore Chand were the landlords of the present petitioner in respect of the demised premises and payment of rent to one of them was not enough, and, therefore, the petitioner was guilty of non-payment of rent. It is the common case of the parties that the petitioner did not make any factory building on the rented land, but made five shops which were let out by him to different persons who have been impleaded as respondents in the present proceedings. It was held by the Appellate Authority that since no written con-sent for letting out the shops to those persons had been obtained, he was liable to ejectment on the ground of subletting. The eviction was also allowed for using the rented land for a purpose other than that mentioned in the lease-deed on the finding that in accordance with the terms of the original lease-deed Exhibit A-2, the petitioner took the land for constructing a factory building and one shop either kutcha or pukka, and that inasmuch as no factory building had been constructed and five shops had been made, the rented land had been misused.

(3.) Aggrieved by the order of the Appellate Authority, the petitioner filed the present revision petition in this Court, When this case came up for hearing before P. C. Pandit, J (as he then was) on September 1, 1972, the learned Judge found that though eviction had been allowed on the ground of perversion of user of the rented land, no issue had been framed on that point, and, therefore, the petitioner had been prejudiced in the trial of this case on that point. The learned Judge therefore, ordered that the issue of preversion of user may be tried by the Rent Controller after giving the parties a reasonable opportunity, and that his report should be submitted to this Court through the Appellate Authority who may also record his finding thereon. In pursuance of the above-said order of this Court, the Rent Controller, Sunam, went into the question covered by the order of remand and submitted his report, dated November 24, 1972, to the Appellate Authority. As per direction given by this Court, the learned Rent Controller framed the following additional issue : "Whether Banarsi Das respondent used the demised premises for a purpose other than that for which (those were) let out?" The Rent Controller held that the stipulation in the lease-deed Exhibit A-2 to the effect that the plot in question was being given on lease for being used for the