Punjab-Haryana High Court
Lajwanti And Anr. vs Daulat Ram on 8 September, 1989
Equivalent citations: (1990)98PLR426
JUDGMENT M.S. Liberhan, J.
1. This revision arises out of an ejectment order passed by the authorities below on the ground of subletting.
2. The landlord claimed that the premises in dispute were leased out to Lajwanti wife of Kashmiri Lal at the rate of Rs. 50/- per month. The ejectment was sought on the grounds of non- payment of rent, personal necessity and sub-letting. Lajwanti was alleged to have shifted to village Kotuwala near Jalalabad and possession of the premises was alleged to have been handedover to Balkishan.
The tenant controverted the claim of the landlord. Shifting to village Kotuwala was denied; Balkishan was stated to be the son-in-law of Lajwanti and it was averred that he used to stay with them on his visits. The physical exclusive possession of Balkishan over the premises was denied.
3. The authorities below came to the conclusion that the house was not needed for personal necessity and the rent had been tendered. These findings have not been challenged.
The authorities below further finding that Balkishan who was residing with Lajwanti in the premises in dispute was employed in the Punjab State Electricity Board and had a separate ration card held that the tenants had failed to prove the case set up by them viz. Balkishan used to stay only on his visits to his in-laws. It was, therefore, assumed that the premises in dispute were sub-let and ejectment order was passed.
4. The learned counsel for the petitioner challenged the findings arrived at by the authorities below. It was contended that there was no evidence with respect to handing-over the exclusive possession nor there was any evidence that the possession was banded-over for any valuable consideration, or any right or interest of the son-in-law was created in the lease hold rights. In the absence of any evidence with respect to these facts, no sub-letting could be assumed. It was further contended that keeping in view the close relationship and the absence of evidence with respect to transfer of exclusive possession for a consideration or creating any legal right in Balkishan, no finding with respect to subletting could have been arrived at.
5. In order to support his submission, the learned counsel relied upon Nanak Chand v. Sansar Chand etc., (1982) 84 P.L.R. 515., Jagdish Prasad v. Smt. Angoori Devi, 1984 (1) R.C.R. 524, and Sal Narain and Anr. v. Raghbir Singh, 1983 (1) R.L.R. 853,.
6. The learned counsel for the petitioner further read out the statements of AW.1 Daulat Ram, landlord, AW.4 Chaman Lal, Sub-Inspector, Food and Supplies, RW1 Lajwanti, RW.2 Kashmiri Lal husband of Lajwanti and Tek Chand, a close relation and contended that from this evidence, no finding of sub-letting could be arrived at.
7. The learned counsel for the respondent controverted the submissions made and contended that the findings arrived at with respect to the exclusive possession was a finding of fact arrived at after due appreciation of evidence and could not be interfered with. It was further contended that sub-letting being a secret arrangement between the tenant and the sub-tenant, the onus of proof with respect to the nature of possession shifted to the tenant. It was for the tenant to show that in what capacity, the person alleged to be sub-tenant, was in possession. In the absence of any evidence, explaining the nature of possession, sub-letting would be presumed. It was contended that there was no evidence on record to explain the nature of possession of Balkishan. The alleged sub tenant. It was emphasised that RW.3 Tek Chand, a close relation admitted. "Balkishan is living in a room adjoining to the front portion and Lajwanti is living in the rear portion" and "Balkishan is in posseshion of one room and Lajwanti is in possession of the other portion " He referred to the statement of Balkishan RW.4 himself who stated that he lived in the front portion. It was not shown by Balkishan or Lajwanti as to in what capacity Balkishan was in possession. Referring to the two ration cards, one relating to Lajwanti and the other to Balkishan, it was contended that the ration cards bore different house number. It was emphasised that the father-in-law and the son-in-law were working in different departments. It was contended that the inference drawn by the authorities below with respect to sub-letting was correct and sustainable.
8. In order to buttress his submissions he relied upon Amin Chand and Anr. v. Thakur Dass, 1983 (1) R.L.R. 85 , Nirmal Chand v. Sohan Lal, 1987(1) R.C.R. 49, and, Bans Raj and Anr. v. Nirmal Kishore and Ors., 1986 (2) R.C.R. 617, Amar Chand Sohal v. Jagdev Singh, 1984 (2) R.L.R. 786, Sunita Rani v. Subhash Chander, (1986-1) 89 P.L.R. 172, Kunti Devi (died) represented by L. Rs. v. Tek Chand and Ors.., 1988 H.R.R. 288,
9. It cannot be disputed that in order to prove the subletting the creation of an interest in the lease hold rights is a sine quo non. Though exclusive possession is one of the strong circumstances to show an interest of the transferee in the demised premises and in a given circumstances sub-tenancy may be inferred or assumed, yet it itself does pot show that any legal rights had been created. It may shift the onus of proof. It may be one of the strong circumstances to be taken into consideration, but that by itself is not sufficient. The tenancy laws are for the protection of the tenants. The burden of proof with respect to sub-letting continues to be on the landlord. The burden may be very light and in particular facts and circumstances of a case may stand discharged by a statement on oath by the landlord alone. It is only when the onus shifts that the tenant is required to explain the nature of possession of the person other than the tenant.
10. In the case in hand, there is no evidence except the self-serving statement of the landlord to the effect that the tenant had sub-let a portion of the premises in dispute to her son-in-law Balkishan. No consideration for creation of interest was alleged nor anything was pointed out to show tint the exclusive possession had been transferred to Balkishan, there it absolutely nothing either in the pleadings or in the statement about any interest of Balkishan having been created in the premises in dispute, not any particular portion was specified which was alleged to be in the exclusive possession of Balkishan. It was not dsiputed in the course of arguments that the premises in dispute are constituted of 5 rooms and one varandah Lajwanti's daughter is residingin premises in dispute. Not a word has been stated with respect to exclusive possession of either the daughter or the son-in-law of Lajwanti. The relationship of the alleged sub-tenant of Lajwanti as being her son-in-law is not disputed.
11. It came in evidence that Lajwanti has nine members in her faimly and Balkishan's family is constituted of husband and wife and three children, meaning thereby that fifteen members of both the famlies as living in five rooms Lajwanti had appeared in the witness box as RW. 1 and in a straight forward and can did manner admitted the facts particularly with regard to living of her son in law with her, the working of her husband and the son in-law indifferent departments and there being two different ration cards though she candidly denied that she ever parted with any possession or created any interest of Balkishan in the demised premises. Her statement was corroborated by RW. 2 Kashmiri Lal. The portions of the statement referred to by the counsel for the respondent is totally out of the context. The conspects of the reading of the evidence shows that Balkishan is the son-in-law of Lajwanti and is living as such with her. No right or interest of Balkishan has been created in the demised premises. It cannot be inferred that he is in exclusive possession of any portien of the premises. Of course, then a son-in-law is living with his father-in-laws and mother-in-law he and his wife have to live in portion of the house and they cannot be shifted daily It is quite normal in this area of shortage of accommodation and hard days for the in-laws to allow their datghter and san-in-law to stay with them. This fact is obvious, considering the number of rooms available and the number of members of both the families i.e. of the tenant and Balkishan. It would be highly improper to infer in these particular circumstances that there was any sub letting.
12. Keeping in view the close relationship and my above observations, no inference with respect to sub-letting of tenancy can be drawn. Hence, the findings arrived at by the authorities below cannot be sustained and the same are set aside. I am of the considered opinion that the landlord has miserably failed to prove the alleged sub-letting by the tenant to her son-in-law.
13. So far as Nanak Chaned's case (supra) is concerned, it does support to some extent the contention raised by the counsel for the petitioner. The distinction pointed out by the respondent is to the effect that it was in view of the peculiar facts, i.e. to the effect that the brother-in-law was suffering from oxzema and was living as a dependent for the last 28 years and was not doing any work though the separate ration cards and electric connections were there. It was in those circumstances that it was inferred that there was no sub-letting. There is no proposition of law from the citation which was passed. In the judgments the facts may be similar but cannot be identical. The judgment cited cannot be precedent on facts. The distinctions rointed out are noted to be rejected. They are of no consequence. The judgment has been referred to only to be noted as it referred in the course of arguments. Same is the position with Jagdish Prasad's case (supra). There is no dispute with respect to the proposition of law laid down to the effect that subletting has to be proved by the landlord as a fact and for mere prese(sic)ce of the person in the premises no presumption of sub letting can be raised particularly as long as actual control over the premises is kept by the tenant.
14. In this case, as observed above, on the facts. I am not convinced that the tenant has ever parted with the possession of the premises in dispute or lost the actual control over the premises muchless created any interest of the sub-tenant in the premises in dispute. The close relationship of being a son-in-law goes a long way to show the absence of interest. The landlord has utterly failed to bring cut sufficient material on record to raise any inference of sub-letting.
15. As regards the case Smt. Krishnawti v. Shri Hans Raj, A.I.R. 1974 S.C. 280, it is again a case on its own facts. So far as proposition of law is concerned there is no dispute. It was observed that "Sub-letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee." On this proposition, on the facts, it was found that since it was not a case of any body in possession of the premises, but husband and wife living jointly and part of the premises, being used by the husband ostensibly for the business cannot be construed to be a sub-letting.
16. In view of my observations made above, no support can be drawn from it for the facts in this case.
17. The case Sat Narain and Anr. v. Raghbir Singh and Ors.,3, has been noted only to be rejected as it is again not a precedent of law. On its own facts the Hon'ble Judge has drawn inference of subletting.
18. So far as the judgment in Kunti Devi's case (supra) cited by the learned counsel for the respondent is concerned therein the Hon'ble Judge observed that when a third person is found to be in exclusive possession it is for the tenant to prove the capacity and nature of his exclusive possession and in case he fails to prove, it will be reasonable to assume that the sub-letting is proved. It may be so in the peculiar facts and circumstances of each case.
19. Sub-letting as understood in the legal term as well as by an ordinary prudent person is creation of a lease by a lessee It amounts to transfer or parting with lease hold rights by the tenant in favour of another person, who is known as sub-tenant. It is transfer of the lessee' rights by the tenant which had been made the ground for ejectment by the statute. Mere granting of licence for using the premises for consideration was not the ground of ejectment nor mere use of the premises were made the ground of ejectment. Tenancy laws having been made to protect them are to be liberally construed in favour of the tenants.
20. Similarly, the judgments in Amin Chand and Anr. v. Thakur Dass,4, Nirmal Chand v. Sohan Lal and Anr.,5, Charan Dass Mahajan v. Mohinder Nath and Ors., 1978 (1) R.L.R. 124, Hans Raj and Anr. v. Naval Kishore and Ors.,6, Amar Chand Sohal v. Jasdev Singh,7, are noted as they have been cited at the bar. They are not pari materia on the law and facts involved in this case In each of the judgments in the peculiar facts and circumstances of each case sub-letting was found as a matter of fact by raising inference from the exclusive possession and failure to explain the nature of possesssion by the alleged tenant and sub-tenant.
21. Here it is otherwise, the tenant and the alleged sub-tenant as well as the husband of the tenant have come into the witness box and have explained the relationship, the temporary occupation as well in the nature of possession. Creation of any interest in the demised premises has been specifically denied of which there is not even a rebuttal on oath much less placing on record sufficient material for the same.
22. Similarly, the case Sunita Rani v. Subash Chander and Anr.,8, again a judgment on its own facts. There is no parallel in the facts and circumstances of the two cases. The judgment cited has only recognized the well accepted principles of sub-letting as observed by me above wish which (sic) respectfully agree.
23. In view of my observations made above, this revision petition is accepted and the impugned judgments of the authorities below are set aside. No order as to costs.