ABDUL HAI Vs. PRATAP DEVI

JUDGEMENT

(1.) THIS is a defendants appeal against the Judgment and decree passed by learned District Judge, Bhadarwah in File No. 13/Civil appeal on 30.11.1992. By means of impugned decree, while allowing the appeal of the respondents/plaintiffs, their claim has been decreed and the consequently ejectment of the appellants has been ordered from the shop in question, directing them to deliver possession to the respondents with costs throughout. However, they have been allowed two months time to hand over the vacant possession of the said shop, failing which respondents were entitled to get the possession through process of execution. Thus this Second appeal at the instance of the appellants, who as already observed were the defendants- tenants before the trial Court. Before proceeding further in this case, it may be noted here that the suit out of which this appeal has arisen before the trial Court was filed on 14.7.1981, i.e., before the amendment of Section 100 of the Jammu and Kashmir Code of Civil Procedure, which was amended with effect from 15.8.1983. As such, the appeal is to be dealt with under the unamended Section 100 of the Code of Civil Procedure.

(2.) BRIEF facts out of which this appeal has arisen need to be briefly noted. Shadi Lal predecessor-in-interest of the respondents filed a suit for ejectment against the defendants/appellants herein on the ground that the premises in question i.e., shop is required for his personal as well as his sons' personal necessity, which is more genuine than that of the appellants, as also that the premises have been sublet by appellant No. 1 Abdul Hai to appellants 2 and 3. He further pleaded that under an agreement to sell dated 25.07.1971, the property came to him, it was followed by a registered sale deed dated 16.7.1980. Rate of rent of the shop in question Rs. 10/- per mensum. This was in terms of rent note dated 8.7.1971, which was admittedly executed by appellant-1. While admitting the execution of this document before the trial Court, further endorsement was made on it that the tenancy is in favour of all the three brothers, i.e., appellant-1 as well as appellants 2 and 3. Shadi Lal deceased predecessor-in-interest of the respondents further claimed that the property in dispute was purchased for Rs. 10,000/- from its previous owner. Arrears of rent amounting to Rs. 122/- from 25.7.1979 to June, 1980 were also claimed. Notice is also stated to have been issued. This claim was contested and resisted by the appellants, who specifically denied the plea of subletting. While admitting the service of notice by the deceased Shadi Lal requiring to vacate the premises on the grounds above noted, his title was repudiated and they also refused to vacate the premises. This resulted in filing the suit. It may also be noted here that the case set up by the appellants further in the written statement was that the premises in question are in their occupation for the last 25 years since the time of their father Abdul Samad Ganai, after his death appellants came into possession, who all are tenants after the death of their father. They further pleaded that transaction of sale is sham between its previous owner and Shadi Lal-deceased.

(3.) IN this behalf, it may also be observed that it is in rare of the rarest case that direct evidence of subletting and/or the transfer of rights in the tenanted premises by a tenant in favour of sub-tenant is available. Landlord is only required to prima facie show that the tenant ceased to occupy the premises in question and it is the sub-tenant, who is in exclusive possession of those. Once this is proved, onus shifts to the tenant to show as to how the sub-tenant came into possession, and as to under what authority, he is holding the premises to the exclusion of the tenant.