SHRI PRITAM SINGH Vs. HARBANS LAL AND ORS.

JUDGEMENT

(1.) It is the admitted case of the parties that the premises in dispute were owned by Kharaiti Ram, in the first instance who leased the same to Pritam Singh, petitioner, on the basis of a rent note Exhibit P. 4 dated 5th of February, 1955, for 11 months at a rent of Rs. 20 per month. Kharaiti Ram died on 19th April, 1959 and the rights in the property devolved on 8 persons designated as petitioners Nos. 1-8 in the petition for eviction (hereinafter to be called as the landlords-respondents). The latter filed a petition for ejectment of the petitioner after serving him a notice Ex. P. 1 dated 6th of July, 1968 hereby the tenancy was terminated with effect from 31st of July, 1968. The main ground for seeking the ejectment of the petitioner was that he had not paid rent since 1st of April, 1959 till January, 1969. The petitioner in the written statement denied it and inter alia contended that after the death of the original landlord Kharaiti Ram, he had been paying the rent to respondents Nos. 1 and 2 who, in facts, were the landlords, that he sent the money order of Rs. 20 for the month of February, 1968 which was received by respondent Nos. 1 and 2 on the first date of hearing, an amount of Rs. 100 was tendered in the Court as arrears of rent for the period from 1st of March, 1968 to 31st of July, 1968 along with interest and costs. The same was accepted by the landlords under protest. On the pleadings of the parties, the following issues were framed:

(2.) The Rent Controller as a result of his assessment of the evidence on the record, arrived at a firm finding that the rent for the period from 1st of April, 1959 till 31st of January, 1968 had not been paid. As such, the order of ejectment was passed regarding issued No. 3, it was held that the petitioner was a statutory tenant, and therefore, the notice under Section 106 of Transfer of Property Act was not necessary to be served but, as a fact, the same had been served. The appeal of the tenant : petitioner met the same fate and was dismissed. The order of the Appellate Authority dismissing the appeal of the tenant has been impugned in this revision petition.

(3.) The contention of Mr. Harbhagwan Singh, learned counsel for the petitioner is that the rent in fact for the period from 1st of April, 1959 to 31st of January, 1968 had been paid before the ejectment application was made There is no evidence on the record to support this contention of the petitioner, except the bald statement of the petitioner himself. On the other hand, there are cogent circumstances which warrant the conclusion that the rent in fact had not been paid. According to the petitioner he had sent two money orders Exhibits P. 2 and P. 3 regarding the rent for December, 1967 and January, 1968, and the same were refused by the landlords. After this if the rent for these two months was paid by the petitioner, the petitioner must have insisted on issuance of receipts therefor or would not have made the payment without the receipts. It is also contended that the land lords-respondents Nos 1 and 2 had entered into an agreement in July, 1967 for sale of the property including the premises in dispute to the petitioner and the petitioner had paid Rs. 5,000 in pursuance of that agreement as earnest money. The landlords respondents Nos. 1 and 2 failed to perform the contract and execute the sale deed and thus the relations got strained. Nor was the amount of Rs. 5,000 returned to the petitioner. This being the position, the petitioner is not expected to have paid the rent without insisting on the receipts therefore. In the lower appellate court, it was contended that even if arrears of rent for his period had not been paid, an amount of Rs. 5,000 paid as earnest money in pursuance of the agreement to sell by the petitioner, was with the respondents Nos. 1 and 2 and that an amount equivalent to the arrears of rent could be adjusted out of this amount. This stand was not taken in the written statement nor in this statement by the petitioner when he appeared as a witness. According to the learned counsel for the petitioner, the receipt of Rs. 5, 000 as earnest money was admitted by Harbans Lal, landlord when he appeared as a witness. However the landlord could not be compelled to adjust the amount of arrears of rent due from the tenant out of this amount of Rs. 5,000. The petitioner could file a suit for specific performance of the contract for the return of this amount and the landlords who had received this amount may have conceded the right of the petitioner for the return of his amount or may have taken up any other stand. In any case, if the arrears of rent due from the petitioner which according to him had been paid were not adjusted out of rupees 5,000 by the landlords, the petitioner could not legally claim that the arrears of rent automatically stood adjusted and that he could not be deemed to be in arrears of rent. Thus the concurrent finding of Courts below that the arrears of rent from 1st April, 1959 to 31st January, 1968 were not paid by the tenant is correct and is based on assessment of evidence of record and is hear by affirmed.