KAMLESH KANWAR Vs. SHANTI LAL JAIN AND ORS.

JUDGEMENT

(1.) THIS petition has been filed impugning the order dated 20 -1 -2015 passed by Appellate Rent Tribunal, Jaipur (hereinafter 'the Appellate Tribunal') setting aside the order dated 2 -12 -2014 passed by the Rent Tribunal Jaipur (hereinafter 'the Tribunal') wherein it was directed that the petitioner -applicant (hereinafter 'the applicant') purporting to be a tenant of respondent -non -applicant (hereinafter 'the non -applicant') could not be dispossessed from the shop in dispute except by due process and would not be obstructed in the enjoyment of premises in issue including electricity connection thereto during his tenancy.

(2.) THE facts of the case are that proceedings under Section 18 of the Rent Control Act, 2001 was taken by the applicant purporting to be a tenant. It was prayed that the non -applicant -landlord (hereinafter 'landlord') be restrained from dispossessing her without due process of law and the electricity supply disconnected by the non -applicant from the applicant's tenanted shop be restored. Reply of denial to the applicant's application was filed. It was stated that there was no tenancy as claimed and therefore the application itself was not maintainable before the Tribunal, limited in its jurisdiction to landlord -tenant disputes. On the basis of pleadings of the parties and documentary evidence submitted, the Tribunal accepted the applicant's case vide order dated 2 -12 -2014 as detailed herein above. The non -applicant preferred an appeal against the order dated 2 -12 -2014 before the Appellate Tribunal. The Appellate Tribunal set aside the order dated 2 -12 -2014 and held that from the evidence before the Tribunal the relationship of landlord and tenant between the applicant and the non -applicant was not made out, the Tribunal's order dated 2 -12 -2014 was liable to be set aside and consequently the application filed by the applicant was liable to be dismissed. Hence this composite petition under Articles 226 and 227 of the Constitution of India by the applicant aggrieved of the order dated 20 -1 -2015 passed by the Appellate Tribunal.

(3.) MR . R.K. Jain and Mr. Vivek Goyal, counsel for non -applicant submitted that the Tribunal had only perfunctorily and perversely concluded as to the relationship of tenant and landlord between the applicant and the non -applicant. It has been submitted that no document was filed before Tribunal to prove a tenancy either by way of a rent note or receipts of rent by the non -applicant from the applicant. It was submitted that the burden of proving tenancy and relationship of tenant and landlord between the applicant and non -applicant was on the applicant and she had failed to discharge the same. Counsel submitted that documents before the Tribunal relied upon by the applicant were not specific to the disputed shop nor in fact had any bearing on proof of tenancy claimed by the applicant. It was further submitted that the Appellate Tribunal under its order dated 20 -1 -2015 has considered the matter in detail and found that no tenancy was proved between the applicant and non -applicant. The Appellate Tribunal had also taken into consideration the absurdity of case set up by the applicant on the alleged tenancy commencing 1979, when from her statement on 3 -9 -1999 in a police case, the applicant had then stated her age to be 32 years, where from in the year 1979 she could only have been 12 years of age making it impossible that she could have entered into a tenancy as alleged in 1979. Further the Appellate Tribunal noted that the applicant did not support her case of tenancy in the disputed shop on the basis of an affidavit of erstwhile owner/landlord Nathi Devi. The Appellate Tribunal also found that the Tribunal had not discussed any document on record before coming to its conclusion with regard to applicant's purported tenancy in the property owned by the non applicant. Most importantly, the Appellate Tribunal held that Prakash Chand Khunteta was not party in the petition laid by the applicant and nothing could have been made out from his statement in another case, if at all, for the reason that even in that case the said Prakash Chand had stated that one Narayan was the tenant - -not the applicant. That statement even if taken at face value did not buttress the case of the applicant Kamlesh Kanwar being the tenant in the premises in issue on the basis of which the petition by her was laid. In this view of the matter counsel for the non -applicant submitted, the Appellate Tribunal rightly concluded that the applicant had not been able to discharge her burden of proof and establish with the requisite preponderance of probability that she was a tenant in the disputed shop. The non -applicant's counsel submitted that the finding of facts by the Appellate Tribunal as the final court of fact should not be interfered with as they are not perverse but rather well considered on an objective analysis of the evidence on record.