JUDGMENT
J.S. Narang, J.
1. This judgment would dispose of two revision petition Nos. 1122 and 1222 of 1983, as common questions of law and facts are involved in both the cases. Facts are being taken from C.R. No. 12222 of 1983.
2. The petitioner claims himself to be the owner of the shop in question, in respect of which the eviction petition has been filed under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “the Act”). The said shop is stated to have been let out to respondent No. 1 vide rent deed dated February 25, 1970 at a monthly tenancy of Rs. 50/-. It is alleged that the tenancy was for a fixed period of 11 months and that after the expiry of the period of 11 months, respondent No. 1 became a statutory tenant. It has also been alleged that respondent No. 1 without the permission of the petitioner let out the shop to respondent No. 2 and that he has given up his tenancy rights in respect of the demised premises. It is further alleged that respondent No. 1 is charging Rs. 80/- per month as rent from respondent No. 2. The eviction petition has been filed on two grounds i.e. non-payment of rent and subletting the demised premises to respondent No. 2 without the written prior permission of petitioner.
3. The petition has been contested by both the respondents individually. Respondent No. 1 virtually admitted all the pleas of the petitioner except the allegations of subletting and in this regard, it has been alleged that the demised premises have been sublet with the prior permission of the petitioner as is evident from the agreement alleged to have been executed between the petitioner and respondent No. 1. On the other hand respondent No. 2 has contested the petition on all grounds and has additionally alleged that the petition has been filed by the petitioner in collusion with respondent No. 1. Respondent No. 2 claims himself to be a direct tenant under the petitioner. It is alleged that the demised premises in question had been let out by the petitioner to him at a monthly rent of Rs. 63.70 and thereafter the rent was raised to Rs. 66/- per month and subsequently to Rs. 80/- per month. It is further alleged that the payment of rent is being regularly entered in his books of accounts kept in the regular course of business. Upon the pleadings of the parties, the issues had been framed and the parties have led their respective documentary as well as oral evidence.
4. Respondent No. 1 appeared as RW1 and has proved the rent note executed between the petitioner and respondent No. 1 which has been exhibited as Ex.PX. The pivotal question which arose before the Rent Controller is: “Whether by virtue of execution of rent note Ex.PX, it could be accept that respondent No. 1 had come into possession of the demised premises as tenant?” The petitioner also appeared as his won witness and his statement has been recorded as AW5. He has admitted that respondent No. 1 worked in Aggarwal Mill and that after leaving the mill, he has not done any other work. It has been disclosed that he worked in the said mill upto 1974-75, the rent note is stated to have been executed on March 25, 1970. Thus, it is not understandable how respondent No. 1 could have taken possession of the shop (demised premises) in 1970 and could have also run the business, Respondent No. 1 while appearing as RW1 has not been able to spell out as to when his job/contract with Aggarwal Mill came to an end. The statement is vague and evasive. Respondent No. 1 has also not produced the rent receipts nor he has been able to show any corroborative evidence to establish the factum of having come into possession of the shop in question. If he was carrying on some business, the books of accounts could have been produced as attendant circumstance for establishing his possession, none of the kind has been done. The witnesses produced for establishing possession of respondent No. 1 have also not clearly stated as to from which date to which date respondent No. 3 was in possession and on what date respondent No. 2 came into possession of the shop. However, it has been stated that after respondent No. 1 another person came into possession of the shop i.e. Moti Ram but nothing has been stated for how much period he had come into possession of the shop. The witnesses are erratic in their averments. It may be noticed that the attesting witness named upon the rent note has not been produced for reasons best known. Resultantly, the Rent Controller has come to a tacit finding that the relationship of landlord and tenant between the petitioner and respondent No. 1 could not be established and that the issue in respect thereof has been decided against the petitioner.
5. Respondent No. 2 has alleged that he had come into possessions of the shop since 1970 and that the tenancy was created orally in his favour. It is also alleged that the petitioner i.e. the landlord did not issue rent receipts after receiving the rent. It is obvious that no documentary evidence has been brought on record to establish tenancy in favour of respondent No. 2. However, extracts from the books of accounts of the petitioner have been produced into evidence which have been produced as Ex.RW12/l to RW12/9. The account books contained the description of the period for which the rent has been received. Against the entry dated June 11, 1997, the payment of Rs. 80/- has been entered. Respondent No. 1 has alleged that the rate of rent was Rs. 50/- per month but nowhere it has been alleged that the rent was subsequently increased whereas respondent No. 2 has categorically averred as to how the rent stood increased from Rs. 63.75 to Rs. 80/-. This stands corroborated from the entry made by the petitioner in his own books of accounts but the subsequent entries are in the sum of Rs. 100/-, Rs. 500/- Rs. 260/- and Rs. 140/-. Thus, the payment of rent by respondent No. 2 could not be connected and resultantly, the Rent Controller has given a finding that respondent No. 2 cannot be accepted to be direct tenant of the petitioner. However., the petition has been dismissed on the ground that the tenancy in favour of respondent No. 1 also could not be established and resultantly the plea of subletting also could not be admitted.
6. The petitioner challenged the judgment of the Rent Controller by way of appeal before the appellate authority. The finding of the Rent Controller upon issues No. 1 and 2 have been upheld by the Appellate Authority but so far as issue No. 3 is concerned, the finding has been reversed and respondent No. 2 has been accepted to be a direct tenant of the petitioner. The mathematical calculations as have emerged from Ex.RWI2/1 to Ex.RW12/9, it has been examined that the total amount which has been paid in 11 months, the rent rate comes to Rs. 60/- per month and likewise upon increase to Rs. 80/-per month, the total amount received has been synchronised. The fact that respondent No. 1 has nowhere alleged or has stated in his evidence that the rent was ever increased from Rs. 50/- he has correctly not been accepted as tenant of the petitioner. Whereas the factum of increase has been alleged by respondent No. 2 and the denomination described matches with the entries made in the books of accounts maintained by the petitioner. Resultantly, the appellate authority correctly reversed the finding of the Rent Controller upon issue No. 3 by holding that respondent No. 2 is a legitimate and direct tenant under the petitioner, It may be noticed that no appeal was filed by Laxmi Narain respondent No. 2 but he had filed cross-objections to the appeal filed by the petitioner and that the cross-objections have been accepted by the appellate authority.
7. So far as non-payment of rent is concerned, respondent No. 2 could not have been evicted on that ground as no rent has been claimed from him by the landlord. Resultantly, no eviction could have been ordered against respondent No. 2.
8. Learned counsel for the petitioner has argued that the appellate authority has not correctly appreciated the evidence brought on record. The relationship of landlord and tenant stood established so far as petitioner and respondent No. 1 are concerned. The rent note has been duly exhibited and the same has not been demolished by anyone. It is the statement of respondent No. 1 that he had given possession of the shop to respondent No. 2 at a monthly tenancy of Rs. 80/-. It is further argued that respondent No. 2 had not been able to establish the tenancy created in his favour and the Rent Controller had come to a correct conclusion that respondent No. 2 could not be termed as direct tenant of the petitioner. It has been argued that the appellate authority has absolutely gone wrong in interpreting he entries himself as are contained in the books of accounts maintained by respondent No. 2. It is a case of misreading of the evidence and resultantly the finding on issue No. 3 as returned by the Rent Controller needs to be upheld and that of the appellate authority needs to be reversed.
9. I am afraid the argument is devoid of any merit. Respondent No. 1 has not been able to establish that in pursuant to execution of the rent note the possession of the demised premises had been taken by him. In fact, a categoric averment has been made that respondent No. 1 was carrying on job with Aggarwal Mill upto 1974-75 and admittedly rent note is stated to be executed in the year 1970. This fact alone shows that the said document had been created in collusion with by petitioner and respondent No. 1 to establish the factum of sub-tenancy against respondent No. 2. Unfortunately, they have not been successful in this endeavor. So far as payment of rent by respondent No. 2 is concerned, admittedly no receipt has been brought on record by respondent No. 2 but the averment that the rent was paid at the rate of Rs. 63.75 in the first instance and subsequently it was increased to Rs. 80/- does find synchronisation. The payment of rent at the rate at relevant times stands corroborated from the entries maintained by the petitioner in his books of accounts which are stated to have been kept in the regular course of business. The mathematical calculation has been correctly illustrated by the appellate authority and resultantly respondent No. 2 has been correctly accepted as direct tenant of the petitioner.
10. In view of the above, I find no merit in the petition and the same is dismissed with no order as to costs.