J.V. Gupta, J. - (1.) THE tenant -petitioners have filed this revision petition against the order of the Appellate Authority, Jullundur, dated 8th September, 1975, whereby the order of the Rent Controller, directing their ejectment was maintained.
(2.) SMT . Kaushalya Devi, landlord -respondent, filed the ejectment application on the ground, inter -alia, that Ram Parkash, tenant, had illegally sublet the shop in dispute with Abhey Kumar without her permission, and, therefore, both of them are liable to be ejected from the premises in dispute. The claim of the landlord was resisted by both the tenants. It was pleaded that earlier the landlady filed a suit for possession against Abhey Kumar after the death of his father Rulia Ram, who was the tenant of the shop at the rate of Rs. 20/ - per month. In that suit, a compromise was effected on 31st October, 1968, where by Abhey Kumar was to remain in possession of the shop in dispute as a tenant under the landlady at the rate of Rs. 60/ - per month. The landlady apprehending that Abhev Kumar may not file an application for fixation of fair rent, got rent note executed in her favour from one Bhagat Ram who was the clerk of a lawyer, on that very day, i.e. 31st October, 1968, Exhibit R. 7 and, subsequently, on 22nd November, 1968, Exhibit A -2, from Ram Parkash in her favour. It was further pleaded that neither Ram Parkash nor Bhagat Ram over came in possession of the shop and it had remained continuously with Abhey Kumar. The payment of rent by Ram Parkash to the landlady was denied and it was stated that the rent was paid by Abhey Kumar, though the receipts issued were in the name of Ram Parkash. The arrears of rent claimed in the ejectment application were tendered on the first date of hearing by Abhey Kumar, the alleged subtenant, but the same were not accepted. On the pleadings of the parties, the Rent Controller, framed the following issues: - 1. Whether there is relationship of landlord and tenant between the applicant and the respondent No. 1? 2. Whether the respondent No. 2 is a sub -tenant of respondent No. 1 by way of sub -letting? Whether respondent No. 1 is liable to be ejected on the ground of non -payment of rent by him?
(3.) WHETHER the applicant is barred from filing the application by his act and conduct? The Rent Controller found all the issues in favour of the landlord and consequently, ordered ejectment of the tenants. In appeal, the findings of the Rent Controller were affirmed. Feeling aggrieved against this, the tenants have come up in revision to this Court. 3. Shri H.L. Sibal, Senior Advocate, learned counsel for the petitioners, vehemently contended that the facts are not much in dispute, except the fact whether the possession has been throughout with Abhey Kumar or it was ever transferred at any time either to Bhagat Ram or to Ram Parkash. The execution of the rent -note, Ex. R7, dated 31st October, 1968, by Bhagat Ram in favour of the landlady and, subsequently, rent -note, Ex. A2, dated 22nd November. 1968. executed by Ram Parkash in favour of the landlady are not disputed According to him, it was only a paper transaction. Ram Parkash or Bhagat Ram never came into possession of the premises in dispute and thus they never became tenants as contemplated under section 105 of the Transfer of Property Act, as well as under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act). According to him, transfer of a right to enjoy such property or in other words transfer of possession is a sine qua non of a lease and in the absence of any transfer of possession, no lease can take place and the execution of the rent -note, if any, will be a mere paper transaction He further contended that as a matter of fact, all this was done by the landlord in order to avoid the rigours of the Act. Which could not be allowed by the Courts. Moreover, both Ram Parkash and as well as Bhagat Ram have appeared in the witness -box and denied that they have ever came in possession of the premises in dispute. If the alleged tenant Ram Karkash never came in possession of the premises in dispute as a tenant, then the question of subletting by him did not arise. Thus, according to the learned counsel, the findings of the Authorities below are wrong and illegal and are liable to be interfered with in this petition. 4. On the other hand, learned counsel for the landlord, vehemently contended that both the Authorities have concurrently found in favour of the landlord as regards the question of subletting. According to him, it being a finding of fact, should not be interfered with in this revision petition In support of this contention, he cited M/s Sri Raja Lakshmi Dying Works and others v. Rangaswamy Chettiar, I.R. 1908 S.C. 1253.;