V.S. Aggarwal, J.
1. The present revision petition has been filed by Chaudhary Ram (hereinafter described as ‘the petitioner’) directed against the order of eviction passed by the learned Rent Controller, Ludhiana, dated 20.10.1992 and that of the Appellate Authority, Ludhiana dated 23.12.1996. The learned Appellate Authority had dismissed the appeal filed by the petitioner.
2. The relevant facts are that Liba Sood and another had filed a petition for eviction against Naresh Syal as well as the petitioner with respect to the property in dispute. It was asserted that earlier Manmohan Syal was a tenant in the property. He had built a room and was running a powerloom therein. When Manmohan Syal left the property, on 1.9.1955 it was let out to Naresh Syal and a lease deed was executed. The said tenant was alleged to have not paid or tendered the rent from the year 1973 onwards and further it was claimed that he had sublet the property to the present petitioner. The petitioner was complained to be in exclusive possession of the disputed property and further that petitioner was carrying on dairy business in the said property in question. Other grounds of eviction had not been pressed and, therefore, it is not required that reference be made to them.
3. The petition was contested and Naresh Syal in the written statement filed took up the contention that he had vacated the property in June, 1973. He surrendered the tenancy rights. Since then he is not in possession of the property and he has nothing to do with the same. Thus, he has denied the liability to pay the same.
4. Petitioner contested the petition for eviction and urged in the reply that he had taken possession of the suit property when it was lying vacant. He came in occupation in the year 1973 and constructed one big hall besides two rooms. He started doing his business. In this process he denied that he is sub-tenant of Naresh Syal. Petitioner further claimed that he is in occupation, continuous, hostile and adverse possession of the property and has become owner thereto. He had even set up a water tank therein.
5. In the rejoinder filed the assertions of the petitioner as well as of Naresh Syal were controverted.
6. The learned Rent Controller framed the issues and held that between Naresh Syal and Liba Sood etc., there was relationship of landlord and tenant. It was held that tenant Naresh Syal had not surrendered the rights of tenancy. The petitioner had not become the owner by adverse possession. Accordingly, it was held that he was a sub-tenant in the property. As regards the ground of non-payment of rent, the learned Rent Controller noted that there was no tender of the rent and consequently the said ground of eviction was also available. The order of eviction was passed. Aggrieved by the same an appeal was filed. The learned Appellate Authority dismissed the appeal and upheld the findings of the learned Rent Controller. Special note was taken of the fact the Naresh Syal had filed the written statement through the same counsel and that there was no surrender of tenancy of Naresh Syal. It was held further that petitioner came in occupation of the property sometimes in the year 1973. With these findings, the order of eviction was affirmed. Hence, the present revision petition. o
7. A feable attempt was made to urge that issues had not properly been framed and, therefore, prejudice has been caused to the petitioner. But indeed the said contention has simply to be stated to be rejected. The law is well settled that once the parties lead evidence knowing fully well the case that they have to meet, in that event, the onus of proof of formal framing of the issues becomes irrelevant. It would only assume importance if it is shown that some prejudice is caused to the party. The said fact was not pointed out. During the trial the petitioner knew the assertions against him and the grounds of eviction. He contested the petition conscious of all that was asserted. No prejudice was shown to have caused and therefore, the plea must fail.
8. The main dispute herein was confined to the controversy as to if Naresh Syal who admittedly earlier was the tenant in the property had vacated the same in the year 1973 and thereafter the petitioner occupied the same without any consent and authority of the landlord. As already pointed out above, the petitioner’s case is as stated above. In other words, he contends that he was no privity with Naresh Syal and that he is in adverse possession of the property which had matured into ownership. The landlord on the contrary asserts that Naresh Syal continued to be the tenant. He never abandoned or surrendered the tenancy rights and petitioner is only a sub-tenant in the property.
9. There was no controversy at either end that surrender of the tenancy could be expressed or implied. There is nothing to indicate on the record that Naresh Syal expressly had surrendered his tenancy rights. Naresh Syal has not stepped into the witness box to establish the said fact. Implied surrender of the tenancy can be assumed from the facts and of the circumstances. It would depend on each case which has to be examined keeping in view the pleas that had to be put forward, corelated and coupled with the evidence and facts established.
10. While the petitioner contended that he had come in occupation of the vacant plot in the year 1973 and occupied the same, he did not produce any documentary evidence in that regard that any such business was being conducted since the year 1973. He only produced certain self serving evidence in this regard. Both the learned Rent Controller and the Appellate Authority had rejected the said oral evidence. There is no ground to take a different view. The only evidence forthcoming was about possession of the petitioner since the year 1973 i.e. a year before filing of the present petition. Some receipts pertaining to the challans were produced but they were of the year 1984 and thereafter. It, therefore, could not be established that petitioner was in occupation of the property from the year 1973 onwards. In these circumstances, it would be difficult to infer that there was implied surrender of tenancy by Naresh Syal.
11. An argument was advanced that petitioner was in occupation of the property and the landlord-respondent kept quite for years. This shows that there was surrender of tenancy by tenant Naresh Syal. The fact which prevailed and rightly so was that one of the landlord was residing abroad while other two are not residing at Ludhiana. They, therefore, would not know all that was being done in the property. In any case, as mentioned above, it is not even shown that petitioner was in exclusive possession for all those years alleged by him.
12. Co-related with the same argument was the plea that petitioner was in adverse possession of the property and that he has no privity with respondent Naresh Syal. The adverse possession as is well known has to be established in terms that it is open and hostile not only against the true owner but the world at large. It is not shown by material on the record that petitioner has ever claimed himself to be the owner much less in adverse possession to any person. Therefore, the plea of the petitioner so much thought of must fail.
13. The controversy further narrows down to a straight jacket. It is established principle that landlord is a stranger to any agreement between the tenant and subtenant. When possession of a third party is established and tenancy subsists, inferences of subletting can easily be drawn. It is for the tenant and the third person to explain the position. In the present case the explanation is not to be believed and both the courts below rightly concluded that ground of eviction of subletting was available. Even the rent had not been tendered on the first date of hearing and on that ground also the order of eviction necessarily was passed.
14. There is another way of looking at the matter. Both the Courts namely the learned Rent Controller and the Appellate Authority have returned findings of the fact. They are based on evidence. The same cannot be described to be absurd and that there was misreading of evidence. Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act will not permit this Court to re-appraise the evidence. As already noted above the findings are correct and, therefore, there is no scope for interference.
15. For these reason, the revision petition must fail and is dismissed. The petitioner is granted two months time to vacate the premises.