JUDGMENT
Sham Sunder, J.
1. This revision petition was filed by Ghansham Dass, tenant revision-petitioner, who died during the pendency of the same, and his legal representatives were brought on record, vide order dated 23.3.2006, against the order dated 9.12.1985, rendered by the Appellate Authority, vide which the appeal against the order dated 29.7.1983 of the Rent Controller, Moga, was dismissed. Balwant Rai, respondent-landlord also died during the pendency of the revision-petition, and his legal representatives were brought, on record, vide order dated 24.11.1989.
2. Balwant Rai (now deceased), landlord, inducted Ghansham Dass (now deceased) as tenant, in the demised premises, as fully detailed in the head note of the ejectment application, at a monthly rental of Rs. 12/-. The ejectment of the respondents was sought, on the grounds, that Ghansham Dass (now deceased) tenant, had not paid the arrears of rent w.e.f. 1.10.1976, that he changed the user of the demised premises, without the written consent of the landlord; and that he sub-let the same in favour of Naresh Kumar @ Nathu and Kasturi Lal without the written consent of the landlord. On the final refusal of the respondents (tenant and sub-tenants), to handover the vacant physical possession of the demised premises, to the landlord, left with no alternative, an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, was filed.
3. The respondents, namely, Ghansham Dass and Naresh Kumar @ Nathu, put in appearance in the Court, Ghansham Dass and his son Naresh Kumar @ Nathu, respondents, filed a joint written statement, wherein, they admitted the creation of tenancy, in respect of the demised premises, and rate of rent. It was denied that Ghansham Dass sublet a portion of the demised premises, in favour of Naresh Kumar @ Nathu and Kasturi Lal. It was also denied that the tenant had changed the user of the demised premises. The remaining grounds of ejectment, were specifically denied being wrong. However, on the first date of hearing, the arrears of rent, were tendered, and accepted by the landlord under protest.
4. Kasturi Lal, in his written statement, admitted that Ghansham Dass sub-let a portion of the demised premises, in his favour, at a monthly rental of Rs. 50/-. He further stated that he and Naresh Kumar son of Ghansham Dass were jointly running the business of sale of cloth, soda water etc. in the demised premises.
4-A. Thereafter, Kasturi Lal did not appear, and was proceeded against ex-parte.
5. From the pleadings of the parties, the following issues, were struck, by the Rent Controller, Moga, on 19.2.1980:
1. Whether the respondent is in arrears of rent? OPA
2. Whether the respondent No. l has sublet the demised premises? OPA
3. Whether the respondent has changed the user of the premises? OPA
4. Whether the petitioner requires the premises in dispute for personal use and occupation? OPA
5. Whether the petition is barred by the principle of res-judicata? OPA
6. Relief.
6. The parties led evidence. After hearing the learned Counsel for the parties, and, on going through the evidence, on record, the Rent Controller held that the tenant sublet the demised premises, in favour of his son Naresh Kumar and one Kasturi Lal, respondents, without the written consonant of the landlord. It was further held that the tenant had changed the user of the demised premises, by changing the fuel wood business to Cloth business, without the written consent of the landlord. Accordingly, the application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, was accepted, and the ejectment of the tenant, and the sub-tenants, from the demised premises, was ordered.
7. Feeling aggrieved, the tenant (Revision-petitioner) filed an appeal, which was dismissed by the Appellate Authority, vide order dated 9.12.1985.
8. Dis-satisfied with the order of the Appellate Authority, the instant revision petition was filed.
9. I have heard the learned Counsel for the parties, and have gone through the record of the case, carefully.
10. The learned Counsel for the revision-petitioner, at the very outset, contended that the Courts below, were wrong, in coming to the conclusion, that Ghansham Dass (now deceased) tenant, sub-let the demised premises, in favour of Naresh Kumar, his son and Kasturi Lal, a stranger, at a monthly rent of Rs. 50/-. He further contended that Naresh Kumar is the son of deceased-landlord, and was residing with him. He further contended that in the joint written statement, filed by the tenant, and Naresh Kumar, a specific plea was taken that Naresh Kumar was helping the tenant., in his business, in the demised premises. He further contended that the relationship, between Ghansham Dass (now deceased) and Naresh Kumar, being that of father and son, it could not be said that he had parted with the possession of the demised premises, in his favour, for consideration. The submission of the learned Counsel for the revision-petitioner, in this regard, appears to be party correct. It is proved from the evidence, on record, that Naresh Kumar @ Natha, is the son of Ghansham Dass, deceased. If he was helping his father, in running the business, in the demised premises, it could not be said that he (father), who was tenant, in the demised premises, parted with the possession of the same, in his favour of consideration. In Agya Wati v. Hira Singh (deceased) represented by Mohan Singh (1985-1)87 P.L.R. 180, the tenant and his son were both running the business jointly, in the demised premises, from the inception of tenancy. The tenant became old. His son started running business, in the demised premises. In these circumstances, it was held that it was not a case of sub-letting. Thus, by no stretch of imagination, it could be said that Ghansham Dass (now deceased) had sublet the demised premises, in favour of his son Naresh Kumar, respondent, for consideration.
11. Ghansham Dass died during the pendency of the revision petition. Originally, the tenancy was contractual, for a specific period. After the expiry of the contractual tenancy, Ghansham Dass became the statutory tenant, in the demised premises. After the death of Ghansham Dass, his legal heirs, including Naresh Kumar @ Nathu, inherited the statutory tenancy. Even if, it is assumed, for the sake of arguments, that Ghansham Dass, during his life time, allegedly sublet the demised premises, in favour of Naresh Kumar, for consideration, on his death, during the pendency of the revision petition and after inheritance of the statutory tenancy, by Naresh Kumar legal heirs of Ghansham Dass, his ejectment, on the ground of subletting, could not be ordered. In Ram Sarup (deceased) represented by Harish Kumar v. Lal Chand , an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, was filed, against the tenant, by the landlord, on the ground of sub-letting. During the pendency of the proceedings, the tenant died. The son inherited the tenancy. Under these circumstances, it was held that ground of sub-letting was no more available to the landlord. In Smt. Gian Devi Anand v. Jeevan Kumar 1985(1) R.C.R. (Rent) 459 (S.C.), it was also held that the heirs of the deceased statutory tenant, who inherit the tenancy, are not liable to be ejected. The matter may be viewed from any angle, but it can be said that, in the first instance, subletting in favour of Naresh Kumar @ Natha by Ghansham Dass, was not proved, and even, if it is assumed, then he was not liable to ejectment, on the ground of sub-letting, in view of the law, laid down, in the authorities referred to herein before.
12. Now coming to the question of sub-letting, in favour of Kasturi Lal, it may be stated here, that Kasturi Lal, in his written statement, in clear cut-terms, admitted that Ghansham Dass, sublet a portion of the demised premises, in his favour, at a monthly rental of Rs. 50/-. Sub letting is a secret arrangement, which is only known to the tenant and the sub-tenant. The terms and conditions of sub-letting are also known to both of them. Once the landlord proves that a person, other than the tenant, was in possession and control of the demised premises, or a portion thereof, then the presumption can be raised that such parting with the possession, was for consideration. In these circumstances, the onus lies heavily, on the tenant, as to in which capacity such a person was in possession and control of the demised premises, or a part thereof. Mangat Ram, AW2, stated that Naresh Kumar had started the business of selling milk and tea, with Kasturi Lal, respondent No. 3, in the demised premises. He further stated that he had been supplying milk to Naresh Kumar @ Nathu and Kasturi Lal, who were running a tea stall, in a portion of the demised premises. He also proved the writings Ex.PZ/1 and Ex.PZ/2, in this regard, on the file. Nothing could be brought out during the cross-examination of these witnesses, which may go to discredit their evidence. No doubt, in rebuttal Ram Pal, RW1, Surinder Kumar, RW2, Des Raj, RW3, and Pawan Kumar, RW5, licence clerk of M.C. Moga, RW6, and Ghansham Dass, RW4 had deposed that the demised premises was never let out, in favour of Kasturi Lal. However, their statements were rightly disbelieved, by the courts below. In case, the demised premises had not been sub-let, in favour of Kasturi Lal, then Naresh Kumar son of Ghansham Dass, could appear as his own witness and depose why Naresh Kumar was not produced by Ghansham Dass, as a witness, is not known. The best piece of evidence was, thus, withheld by the tenant, and an adverse inference, therefore, can be drawn, that had he been produced, he would not have supported his case. Thus, from the evidence, on record, it was proved that Ghansham Dass sublet a portion of the demised premises, in favour of Kasturi Lal, as a monthly rental of Rs. 50/-.
13. The learned Counsel for the revision-petitioner, however, contended that Kasturi Lal was not examined, by the landlord. He further contended that Kasturi Lal was put up by the landlord and after getting the written statement filed from some person, projecting him as Kasturi Lal, he was never produced in the Court. He further contended that had actually Kasturi Lal been, in existence, and filed the written statement, he would have certainly been examined, by the landlord, to prove his case. It may be stated here, that non-examination of Kasturi Lal, clearly goes to prove that he was not a man of the landlord. Had he been the man of landlord, under his control, he would have certainly been examined, by him, to prove the factum of sub-letting. No evidence was brought, on record, that the written statement was not filed by actual Kasturi Lal, who according to the evidence produced by the landlord, was sublet a portion of the demised premises, at a monthly rental of Rs. 50/-, by the tenant. Since Kasturi Lal was not within the power and control of the landlord, he could not be examined by him. The submission of the Counsel for the revision petitioner, being without merit, must fail, and the same stands rejected.
14. The concurrent findings of the Rent Controller and the Appellate Authority, on the ground of sub-letting to Kasturi Lal, are based on the correct appreciation of evidence, and law on the point. These findings are neither perverse, nor based on conjectures surmises and misappreciation of evidence. Under these circumstances, this Court, in revisional jurisdiction, is not inclined to interfere with the same. The findings of the Courts below, on issue No. 2, being correct, are affirmed.
15. The courts below also held that the tenant changed the user of the demised premises, by switching on from one business to another. The findings of the courts below, on this ground, do not appear to be correct. Originally, the tenant was running the business of fuel wood in the demised premises. Subsequently cloth business was being run, in the demised premises. Ultimately, in a portion of the demised premises, tea stall was being run. Since the demised premises were taken, on rent, for running the business, even if there was a change of business therein, from time tome, did not change the user thereof, much less without the written consent of the landlord. In Ram Kumar v. Ditt Ram Verma , the shop was let out to the tenant, for tailoring, and the son of the tenant started manufacturing scissor, in a part of the premises. It was held in Ram Kumar Case (supra) that it did not amount to change of user. The findings of the Courts below, on issue No. 3 being erroneous are reversed.
The order of the Court below to the extent referred to above, do not suffer form any illegality and infirmity. The same are accordingly upheld.
16. For the reasons recorded herein before, the revision-petition, being without merit, must fail, and the same stands dismissed, with no order as to costs.