- (1.) S. U. Khan, J. This is landlady's writ petition arising out of suit for eviction instituted by her against respondents No. 2 and 3 Ghanshyam Das and Gulab Chand. The suit was registered as SCC Suit No. 397 of 1990 on the file of JSCC, Kanpur Nagar and was transferred for disposal to Ist Additional JSCC, Kanpur Nagar.
(2.) PROPERTY in dispute is a shop rent of which is Rs. 75 per month. According to the plaint allegations, Ghanshyam Das was the tenant who had sub-let the shop to his real brother Gulab Chand. In the plaint, it was alleged that defendants were liable to eviction on the ground of sub-letting and default. As far as ground of default is concerned, it does not survives as on the first date of hearing entire arrears of rent were deposited and both the Courts below granted benefit of Section 20 (4) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972) to the tenant. The trial Court held that sub-letting was proved hence suit was decreed on 24- 12-1993. Against the said judgment and decree respondent Nos. 2 and 3 filed SCC Revision No. 11 of 1994. IVth Additional District Judge, Kanpur Nagar held that sub-letting was not proved. Accordingly, revision was allowed on 11-7-1996 and judgment and decree dated 24-12-1993 passed by the trial Court/ist Additional JSCC was set-aside. The said judgment and order of revisional Court has been challenged by the landlady through this writ petition. Petitioner purchased the property in dispute in 1976. Admittedly tenancy had come into existence prior to that.
(3.) THE case of the defendants respondents was that their father Chuhar Mal was the tenant of the shop in dispute. THE husband of the landlady in his oral statement stated that the age of Ghanshyam Das was about 16-18 years when he purchased the property in dispute. Immediately thereafter, he stated that at that time the age of Ghanshyam Das was 17-18 years. Even if the latter version is accepted still it would mean that at the time of start of tenancy (which was 4 or 5 years before purchase of property by the petitioner) Ghanshyam Das was minor. THEre cannot be any contract with the minor. THEre was no allegation of the petitioner that property in dispute was let out to Ghanshyam Das through his father Chuhar Mal. THE consistent case of the defendants was that Chuhar Mal was the tenant. Defendants further stated that Chuhar Mal took the shop on rent as Karta of the Joint Hindu Family which carried out the business from the shop in dispute. Initially a tea stall was opened in the shop in dispute under the name and style of M/s. Mahadeo Tea Stall. THEreafter, readymade garments were sold from the shop in dispute under the name and style of M/s. Padma Garments. THE name of the readymade garments business was afterwards changed to Pappan Garments. Defendants had filed an agreement dated 11-4-1974 entered into in between one of the previous landladies i. e. Smt. Shakuntala Devi and Chuhar Mal. Through the said document, permission was granted by Shakuntala Devi to her tenant Chuhar Mal to construct a tin shed in front of the disputed shop. The trial Court held that the said document was not admissible as it was a rent deed, which was not registered. The trial Court for the said proposition placed reliance upon a Division Bench authority of this Court reported in Zarif Ahmad v. Satish Kumar, 1983 ARC 422. The said authority was overruled by the Supreme Court in Satish Kumar v. Zarif Ahmad, 1998 (1) JCLR 770 (SC) : 1998 JIR 423 (SC) : 1997 (2) ARC 315. The revisional Court rightly held that the said document not being rent note did not require registration and it was admissible. The trial Court had further held that Smt. Shakuntala Devi had not been examined to prove her signatures hence that document did not stand proved. This finding of the trial Court was erroneous in law as Chuhar Mal had stated that it bore the signatures of Shakuntala Devi, which was sufficient to formally prove its execution. Trial Court wrongly placed the burden of examining Shakuntala Devi upon the defendants. In order to prove execution of document, it is necessary to prove the signatures of executant; however for the said purpose, it is not necessary to examine the executant. Any person before whom the executant made his or her signature can prove that. Strangely enough the trial Court did not say a single word as to why Shakuntala Devi was not examined by the plaintiff. Plaintiff had purchased the property from Shakuntala Devi and two others hence she was in a better position to produce her.;