- (1.) The premises in dispute is a garage forming part of house No. 564/XV-8 situate in the abadi of Hussainpura at Amritsar. This house was purchased by Smt. Nirmal Kumari respondent No. 1 from Smt. Krishna Wati, its previous owner on July 3, 1969 vide sale deed Exhibit A W 4/2 and at that time Subhash Chander was alleged to be the tenant in the said garage. She filed the present application on April 1, 1972 under Section 13of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act) for ejectment of the petitioners on several grounds but the one which survives for the purpose of this petition is that the demised premises had been let by Subhash Chander tenant to petitioner No. 2 Jagdish Chand. The defence set up was the garage in dispute was initially taken on rent in the month of December, 1960 by Jagdish Chand for carrying on an industry set up therein but the rent note was not executed in the name of Subhash Chander, petitioner No.1. It was further averred that from the very inception, it is Jagdish Chand who is carrying on the business in the said premises and paying the rent. The Rent Controller dismissed the application on the ground that the landlord has been accepting the rent from Jagdish Chand and was, therefore, estopped from urging that he was not the tenant. On appeal, the Appellate Authority, reversed the judgment and ordered ejectment with the finding that the acceptance of rent from sub tenant does not create any estoppel because under the statute, it cannot be created without the written consent of the landlord. Aggrieved thereby, the alleged tenant and the sub tenant have filed this petition under Section 15 of the Act.
(2.) The evidence, to prove the benami nature of the lease, consists of the statements of the two petitioners, copies of the sales-tax assessment orders from the year 1964 onwards and the statements of R.W. 1 Harminder Law Clerk Excise and Taxation Office, Amritsar, and R.W. 3 Piara lal, Licence Clerk, Municipal Committee, Amritsar. In rebuttal the landlord relied on the rent note Exhibit A W p 4/3 and the statement of Smt. Krishna Wati A.W. 4. The learned Appellate Authority rejected the statements of R.W. 1 and R.W. 3 on the ground that the record with reference to which they gave their statements was not prepared by him nor there was any proof that their statements relate to the property in dispute. Though both the reasons given are not sustainable in law but I do not propose to discuss this matter any further because the evidence of these two witnesses has no material bearing on the disputed question. The other relevant evidence consisting of the statements of the petitioners, pleadings of the parties, assessment orders and various circumstances appearing on the record was not taken into consideration by the learned Appellate Authority at all. I have, therefore, no option but to reappreciate the evidence and arrive at my own conclusions.
(3.) As is well known, it is rare that direct evidence is available to prove the benami nature of the transaction and the courts have generally to decide this question keeping in view the conduct of the parties concerned and the attending circumstances. The first circumstance available on the record which has any bearing on the question of the benami nature of the transaction is the pleadings of the parties. In paragraph 2 of the joint written statement filed by the petitioners, the plea taken was "the premises were taken on rent with effect from December 1960. Respondent No. 2 was to do business in the said premises. He is there in the said premises since December 1960. The rent note was got executed in favour of respondent No. 1 as a mere benami in the year 1960". In the replication filed by the Landlord, the contents of para No. 2 of the written statement were denied and it was averred that respondent No. 2, Jagdish Chand was not the tenant but a sub tenant. It was further averred that, at any rate, respondent No. 1 had parted with the possession of the demised garage to respondent No. 2 without the written permission of the landlord. It is, therefore, evident that no specific denial of the plea of benami nature of the lease was made in the replication by the landlord.;