Punjab-Haryana High Court
Shamsher Singh vs Sampuran Singh And Anr. on 27 August, 1998
Equivalent citations: (1998)120PLR777
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Shamsher Singh (hereinafter described as 'the petitioner') assailing the order passed by the learned Appellate Authority, Jalandhar dated 21.9.1995. By virtue of the impugned order, the learned Appellate Authority had set aside the order of the learned Rent Controller and dismissed the petition for eviction.
2. The relevant facts are that the petitioner had filed an eviction application asserting that the property in question was let out to respondent No. 1 for running of the business at a monthly rent of Rs. 70/-. In March, 1976 the rent was enhanced to Rs. 80/- P.M. The ejectment of the respondents was claimed on the ground that the arrears of rent had not been paid from 1.2.1981 and that the tenant-respondent No. 1 has ceased to occupy the premises and is not himself running the business for the last about 3 years before filing the petition. Lastly it was asserted that respondent No. 1 has sublet the premises to respondent No. 2 without the consent in writing of the petitioner and has transferred his rights and lease to respondent No. 2 who is in full control and occupation of the premises. It was alleged that respondent No. 1 has started his business under the name and style of M/s Sampuran Timber and Steel Works. He manufactured wooden and steel furniture. The respondent No. 2 has changed the user and is running his business of manufacturing hand tools under the name and style of M/s Sampuran Engineering Works. Then it was contended that respondent No. 2 was using the premises for other than the purpose for which it was let out.
3. Both the respondents contested the petition. It was admitted that respondent No. 1 is the tenant in the property and that on the first date of hearing, the entire arrears of rent had been paid (in this regard there was no dispute raised). However, it was denied that respondent No. 1 has ceased to occupy the property. Respondent No. 2, was stated to be the son of respondent No. 1 in helping the tenant in running of the business. It was denied that tenancy rights have been transferred to respondent No. 2. Plea was raised that manufacturing business was running under the name and style of M/s Sampuran Engineering Works and respondent No. 1 is the proprietor of the same. Both the respondents claimed that they were living together and formed an undivided Hindu Family. As per respondents, there was no change of user of the property. The property was being used substantially for the same purpose for which it was let out.
4. The learned Rent Controller on appraisal of the evidence held that it is respondent No. 2 who is in possession of the property and was running his business therein. Respondent No. 1 has ceased to occupy the property. It was not disputed that respondent No. 2 is the son of respondent No. 1 but it was concluded by the learned Rent Controller that this was a peculiar type of subletting where the consideration was of love and affection. Both the respondents were stated to be not having a common mess and further that respondent No. 2 was doing altogether a different business. An order of eviction was passed. In appeal the learned Appellate Authority had set aside the order of the learned Rent Controller and held that respondent No. 2 was not in exclusive possession. It was respondent No. 1 who was running the business in the year 1968. The legal possession remained with respondent No. 1. It cannot be termed, therefore, that there was subletting of the property or that respondent No. 1 has ceased to occupy the premises. With these findings, the order of the learned Rent Controller was set aside. Aggrieved by the same, the present revision petition has been filed.
5. None appeared on behalf of the respondents. Therefore, this Court did not have the advantage of hearing the learned counsel for the respondents.
6. The short question in face of the facts enumerated above that comes up for consideration is as to whether in the present case it can be termed that respondent No. 1 had sublet the property to respondent No. 2 Necessarily in case of subletting sub-tenant should be in possession as a tenant of the tenant or in other words, he should pay" some consideration for being in possession. In this regard the attention of the Court has been drawn to large number of precedents to bring home the fact that the property could be sublet to respondent No. 2 in the facts of the case.
7. In the case of Sadhu Ram Kohli (deceased) through his Legal Representatives v. Tarlok Nath and Anr., 1982(2) Rent Law Reporter 176 the landlord had filed a petition for eviction against the tenants on the ground of subletting. The alleged subtenant was the brother of the tenant. The tenant took the plea that he was not a tenant but his brother was a direct tenant. It was found that tenant had executed a rent note in favour of the landlord. It was further, held that there was a relationship of landlord and tenant between the parties. The brother of the tenant did not appear, as a witness. In the peculiar facts, therefore, it was concluded that it was a case of subletting of the premises.
8. Similarly in the case of Shri Narain Dass Kapur v. Smt. Darshana Kumari and Ors., 1984(1) Rent Control Reporter 329, an eviction petition was filed and the alleged sub-tenant claimed that he was a direct tenant of the landlord and was carrying on the business as a tenant therein. He was not able to produce any rent receipts The Court concluded that he was not a direct tenant and the order of eviction as such was passed.
9. In the case of Harminder Singh v. Kartar Singh and Anr., (1984) 86 P.L.R. 610, the father was the tenant. His son was an advocate. The son never paid the rent. The father stopped living in the property. In the peculiar facts, it was held that it was a case of subletting by the father to the son. Same view prevailed with this Court in the case of Chandgi Ram (Dead) v. Firm Dai Chandlachhman Dass and Ors., (1983) 85 P.L.R. 6 (S.N.) = 1983(1) Rent Law Reporter 163. An ejectment application had been filed on the ground of subletting besides the other grounds. It was contended that tenant has sublet the property to his brother. There was no plea in the written statement that tenant was having joint family business with his brother. There was no documentary evidence to show that joint nature of business. In the peculiar facts, it was held that this amounted to subletting of the property.
10. Similarly in the case of Shri Kishan Chand and Anr. v. Shri Gurjinder Singh and Ors., (1990-1)97 Punjab Law Reporter 600 the father as the tenant. He was running his separate business, the son started running the business in the property in question. It was concluded that once the son started running the business and the tenant-father was no more in possession, it amounts to subletting.
11. On the contrary in the case of Roshan Lal and Ors. v. Raj Kumar and Anr., 1986(1) Rent Control Reporter 246 the tenant was doing the business jointly with his father and brother. The tenant was also having a separate business in the adjoining shop. It was held that it cannot be termed that the property had been sublet. The Court had observed:-
" However in the present case as observed by the learned Appellate Authority, the tenant, his father and brother was working together. The tenant no doubt has separate business also in the adjoining shop in the name of M/s Arya Trading Corporation, but at the same time he is carrying on business in the shop in dispute with his father and brother in the name of M/s Nathu Ram Raj Kumar. Another indication to show that exclusive possession of the shop has not been parted with by the tenant is the door in dispute in between the two adjacent shops in which the business in two different names is being carried on. The learned counsel for the landlord-petitioners has further stressed that from the very fact that the business in each of the two shops is styled under different names having different Sales Tax Numbers, it is to be concluded that tenant-respondent No. 1 has nothing to do with the business of M/s Nathu Ram Raj Kumar being carried on in the shop in dispute. No such conclusion can be safely drawn on the basis of these two feature. I am, therefore, in agreement with the learned Appellate Authority that the landlord-petitioners have failed to prove that the tenant has transferred his right under the lease or has sub-let the shop in dispute to his father and brother."
The Supreme Court in the case of Delhi Stationers and Printers v. Rajendra Kumar, 1990(1) Rent Law Reporter 667 also held that merely because a third person is in occupation is no ground to infer that it is subletting of the property. In the cited case the person in occupation was brother-in-law of the tenant. The Supreme Court held:-
" If the instant case is considered in the light of the aforesaid principles laid down by this Court it cannot be said that the appellant has either sub-let or parted with the possession of a part of the premises in favour of Mahendra Singh who is brother-in-law of the appellant and is also employed with the appellant. Mahendra Singh is a tenant under the respondent in respect of room marked 'J' in the site plan (Ex.A-1). The mere user of the kitchen and latrine by Mahendra Singh while residing in the portion let out to him by the respondent cannot mean that the appellant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of Mahendra Singh."
Another Single Judge of this Court in the case of Jagan Nath v. Vasdev, 1993(1) Rent Law Reporter 178 on the facts where the business was exclusively in the name of the mother but was handed over to the tenant with the passage of time, held that it cannot be held that it was a case of subletting. In paragraph 7 it was held :-
"It will be seen from the evidence that has been discussed above that there is no evidence to show that the petitioner had parted with the possession in favour of any body else and as such the mere fact that the business of Deepak Radios was being run in the demised premises would not dislodge the case of the petitioner. Banta Singh's case (supra) relied upon by the learned counsel for the respondent is not applicable to the facts of the present case. In that case, the stand of the tenant was that the joint Hindu Family business was being carried on in the demised premises and on the failure to prove to this fact, a presumption was raised against him. The facts of the case in hand are totally different, The stand of the petitioner-tenant from the very beginning was that he was in exclusive possession of the demised premises and was running the business through his servants and after receiving finances from his mother Smt. Bimla Rani. Even assuming for a moment that there was some evidence to show that Bimla Rani had come into exclusive possession of the premises in dispute, there is no evidence to show that it was for valuable consideration. It is to be noted that onus to prove a case of subletting lies on the landlord as has been held by this court in Dev Dutt Verma v. Ajit Singh and Ors., 1965 Current Law Journal, 341. This onus has not been even remotely discharged."
12. As one scans through some of the these precedents, it is obvious that there cannot be any hard and fast rule that the moment a third person is found in possession, inferences of subletting should be drawn. It cannot even be held that when a close-relative is in occupation and doing business, it cannot be subletting of the premises. It has to vary and weighed in facts of each particular case.
13. In the present case in hand, most of the facts found are not subject matter of much controversy. The property in question was let out to one Sampuran Singh tenant by the petitioner. Sampuran Singh had executed a rent note. He started business under the name and style of M/s Sampuran Timber and Steel Works. He filed an application in Form-F under the Shop and Establishment Act showing himself as the proprietor of the business. It was established that Sampuran Singh was doing the business of manufacturing of wooden and steel goods. He had obtained an electric connection. Lateron he filed an application for increase in the load from 1 Horse Power to 2 Horse Power. It was sanctioned. Respondent No. 2 Gurdip Singh is residing with respondent No. 1. The business is being done which was not the original business conducted by respondent No. 1. This business is that of respondent No. 2. However, respondent No. 1 also conducts his business from the said property. Respondent No. 2 was challenged from the address of the suit premises.
14. Can on these facts it be said that property has been sublet by respondent No. 2, One finds no hesitation in concluding that findings of the Appellate Authority which are of facts should be approved. There is nothing to indicate that respondent No. 2 is in occupation for consideration. He has not set up his independent title in the property. If he has any permissive occupation with respondent No. 1, it is not a possession to the ouster of respondent No. 1 They are close relatives and, therefore, in the peculiar facts it cannot be inferred that there is subletting of the property. The revision petition, therefore, must be termed to be without merit.
For these reasons, the revision petition being without merit must fail and is dismissed.