Madras High Court
P. Senniappan And Others vs Kannammal And 2 Others on 25 March, 1998
Equivalent citations: 1998(1)CTC537, (1998)IIMLJ416, 1999 A I H C 3374, (1998) 2 MAD LJ 509, (1998) 2 RENCJ 529, (1998) 1 CTC 537 (MAD)
ORDER
1. The landlords/petitioners aggrieved against the order in appeal, have filed the above revision.
2. The petitioners filed R.C.O.P.No.37 of 1989 on the file of the learned Rent Controller/District Munsif, Erode for eviction of the respondents/tenants under Section 10(2)(ii)(a), 10(2)(ii)(b) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. According to the petitioners, the premises in question originally belonged to one Mrs.V.K. Nagarathinammal and the petitioners purchased the entire premises under two sale deeds dated 12.4.1989. The first respondent was a tenant under the petitioners' vendor. She took the premises for the purpose of running textile business. It is claimed by the petitioners that the tenancy was attorned by the first respondent and so she has become the tenant under the petitioners.
3. According to the petitioners, the first petitioner is doing business in textiles for the past 12 years under the name and style of Banu Radha Textiles in a rented premises in Door No.4 Kamaraj Street, Erode. The second petitioner is also doing business in textiles under the name and style of Sivan Textiles in a rented building at Door No.4 Kamaraj Street, Erode. As the owner of the said premises was insisting to vacate the same, the petitioners require the premises in question for their own occupation. According to them, there are having no other premises of their own.
4. It is the case of the petitioners that without the knowledge and consent of the petitioners, the first respondent has sublet the rear portion of the premises in favour of the second respondent and one Mariammal, wife of Samiappa Mudaliar and parted with possession of the same for a fixed rent. It is their further case that the said Mariammal just prior to the legal notice dated 9.6.1989 left without the consent of the first petitioner, putting her daughter-in-law, Yogambal, the third respondent, in possession and thereby the second and third respondents have been residing therein. On that ground the petitioners are seeking eviction of the respondents. Though the petitioners have come forward with the other ground under Section 10(2)(ii)(b) of the Act, no argument was advanced before me, and so I am not dealing with the same.
5. The first respondent/tenant filed a counter and contested the petition. According to the first respondent/tenant, the vendor of the petitioners was owning number of buildings at Erode Town and only with a view to evict the tenant, the vendor of the petitioners want to sell the property for a huge profits. She denied the fact that the landlord of the petitioners are insisting to vacate the premises occupied by the petitioners and that the petitioners are not having any other premises in Erode Town. Regarding subletting, the tenant has denied the same. According to her, she is in control of the entire premises and she has not sublet any portion of the building. There is no such person Mariammal. Angappan is none other than the sister's husband of the first respondent. According to the first respondent, they are taking care of the goods in the shop at night. On that basis the first respondent/tenant prayed for dismissal of the petition. The first respondent filed additional counter stating that each of the petitioners purchased separate and specific property under two separate registered sale deeds. They are neither co-owners nor joint owners and one is not having any right, title or interest over the property of the other. On that basis the first respondent has raised an objection that the petition filed by the petitioners jointly cannot be maintained.
6. The Rent Controller found that the premises in question was used for both residential and non-residential purposes, that the requirements of the premises by the petitioners for their own occupation is a bona fide one and that the first respondent has sublet the premises to the respondents 2 and 3. One the basis of the abovesaid finding, the Rent Controller ordered eviction. Aggrieved against the same, the first respondent/tenant filed an appeal in R.C.A.No.19 of 1991. The appellate Authority/Principal Sub-Judge, Erode rejected the case of the petitioners regarding subletting and that the requirement of the petitioners of the premises for their own occupation cannot be said to be a bona fide one. On the basis of the said finding, the appellate Authority has set aside the order of the Rent Controller and allowed the appeal. Aggrieved against the same, the petitioners have filed the above revision.
7. The petitioners filed a petition for eviction on the ground that they require the premises in question for carrying on their own business. In the petition it is stated that the first petitioners is doing business in textiles in the name and style of Bany Radha Textiles. The second petitioner is also doing business in textiles in the name and style of Sivan Textiles. The second petitioner is none other than the wife of the first petitioner. The reason for eviction of the tenants from the premises in question is to carry on the said business of the petitioners, and the owner of the premises in which the petitioners are carrying on their business was insisting them to vacate the same. It is also stated that the petitioners are not having any other premises of their own. Before the Rent Controller, the petitioners came forward with the plea that the entire premises is a non-residential one. But, the Rent Controller on the basis of the evidence available on record found that the said premises was used both for residential and non- residential purpose. The Rent Controller also found that the requirement of the petitioners for carrying on their own business in the premises in question is a bona fide one.
8. The Appellate Authority while dealing with the petitioners' requirement for carrying on their business in the premises in question found that the second respondent is not doing any business. Only the first respondent has been doing the business. The Appellate Authority has also found there is no threat of eviction as contended by the petitioners from the owner of the premises in which they are doing business. On the basis of those findings, the Appellate Authority came to the conclusion that the requirement of the premises by the petitioners for carrying on their business is not a bona fide one.
9. The learned counsel appearing for the respondents/tenants has submitted that, admittedly, both the petitioners purchased the property under two sale deeds with respect to separate and specific portions and so they cannot maintain the petition jointly. According to him, the entire portion that was purchased by the second petitioner and the portion of the property that was purchased by the first petitioner are residential one and so they cannot maintain the petition for eviction on the ground that they require the premises for non-residential purpose. The said fact is not disputed. In support of his submission, the learned counsel has relied on the decision in Bank of Baroda v. Mahendra Dadha, 1982 (II) M.L.J. 85 wherein the learned Judge while dealing with the right of the parties to ask for residential premises for their non-residential purposes, has held as follows:-
"Section 10(3)(a)(iii) of the Act deals with the conditions for obtaining possession of a non-residential building. The conditions are:- (1) The building should be non- residential in character; (i) the landlord should be carrying On business on the date of application for eviction; (3) The landlord should not be occupying any other non-residential building belonging to him in respect of the business; and (4) the landlord's claim is bona fide, for his business needs and is not founded on any indirect or oblique motive for evicting the tenant either with a view to obtaining more rent than what the premises already fetched or with a view to harass the tenant in possession"
So, the petitioners cannot maintain the petition on this ground.
10. Moreover, it is not established before me by the learned counsel appearing for the petitioners that the petitioners are under threat of eviction. But it was contended that such proof is not necessary. On the other hand, the first respondent filed an additional affidavit stating that the first respondent has shifted his business from the rented premises to his own premises at Door Nos. 82, 82-A and 82-B, pending the proceedings. This fact is not denied in the reply filed by the first petitioner. It is stated in the reply that the Thillai Nagar area in which now the business is being carried on is not a business locality and they have shifted the business only temporarily to the present business premises. The fact remains that the petitioners are carrying on the business in their own premises. This Court can take note of the subsequent events, for the purpose of deciding the case. Since the requirement of the premises by the petitioners is not in existence, and also in view of the above discussion and finding regarding the maintainability of the petition, the order of the Appellate Authority with respect to the requirement of the petitioners for carrying on their business, cannot be said to be perverse or illegal and it has to be sustained.
11. The next ground on which the petitioners has sought for eviction is that the first respondent has sub-let the premises to the respondents 2 and 3. In the petition it is stated that without the knowledge and consent of the petitioners, the first respondent had sublet the rear portion of the petition mentioned premises in favour of the second respondent and one Mariammal, the wife of Samiyappa Mudaliar and parted with possession of the same for a fixed rent. It is further stated that the said Mariammal, just prior to the legal notice dated 9.6.1989 had left and the first respondent put in possession of one Yogambal, the second respondent herein. This fact has been denied by the first respondent. According to the first respondent the entire building is in her control and she did not sub-lease any portion of the premises, and there is no such person as Mariammal. According to her, Angappan the second respondent is her sister's husband and the third respondent is her sister who are taking care of the goods in the shop at night. The Rent Controller has found that the petitioners have not proved that the first respondent has permitted the other respondents to be in possession of the premises by receiving rent. But they have been allowed to be in possession as they are looking after the shop in the night and the same has to be taken as for consideration and so it has to be taken as sub-letting. The Appellate Authority has found that to prove the sub-letting there is no direct evidence, that the respondents 2 and 3 are doing any business in the premises, that they are looking after the business of the first respondent which fact has not been proved as incorrect by the petitioners and that the respondents 2 and 3 are in possession of the premises for a long time with the knowledge of the petitioners' vendors. On the basis of the abovesaid finding, the Appellate Authority has rejected the case of the petitioners with respect to sub-letting.
12. The learned Additional Advocate General appearing for the petitioners has submitted that the possession of the respondents 2 and 3 of the premises has been admitted and it is not the case of the first respondent that the respondents 2 and 3 are her family members. The learned Additional Advocate General, on the basis of the evidence of R.W. 1 has submitted that as the first respondent has admitted that she has put the respondents 2 and 3 in possession of the premises and no permission was obtained from the original owner for the said purpose, and as the petitioners have proved the possession of the third parties in the said premises, the burden is on the first respondent to prove that she has not parted with possession of the premises and the possession of the respondents 2 and 3 is not as su-tenants.
13. The learned counsel appearing for the first respondent has submitted that the first respondent has established that no sub-letting was granted in favour of respondents 2 and 3, by giving evidence as R.W.1. In her evidence, R.W.1 has stated that no rent was received from the respondents 2 and 3 and the premises is under her control and that the original owners did not object for the respondents 2 and 3 to occupy the premises. According to him, her evidence in the chief examination was not challenged in the cross examination. So, in view of the said oral evidence, and in the absence of any contra evidence, he has submitted that the first respondent has established that there is no sub-letting.
14. In this case, the possession of the respondents 2 and 3 in the residential portion was even prior to the purchase of the said property by the petitioners. Both the authorities below have found that the first respondent was not receiving any rent from the other respondents. It is also established by the first respondent that the third respondent is her sister and the second respondent is her sister's husband. The respondents 2 and 3 have remained ex parte and they were not examined.
15. On the basis of the above said facts and submissions made on both sides, I have to now decide whether the respondents are liable to be evicted on the ground of unauthorised sub- letting.
16. In a number of cases, the Apex Court and this Court have dealt with the meaning of sub-lease falling under Section 10(2)(ii)(a) of the said Act. A tenant can be said to sublet the demised premises to a third party only if the tenant had permitted the third party to occupy the premises and had divested himself completely of the possession of the premises or part thereof. In other words there must be transfer of exclusive right to enjoy the demised premises by a tenant in favour of third party and the said right must be in lieu of payment of compensation or rent. If a tenant had permitted a third party to use the premises along with him and the tenant retains the legal possession, it will not amount to subletting. There cannot be a subletting under the lessee, if the has not parted with legal possession. A grant in favour of third party only of the right to use the premises without being entitled to the exclusive possession thereof operates mere licence only.
17. While dealing with the standard of proof of sub- tenancy in Dipak Banerjee v. Smt. Lilabati Chakroborty, , the Apex Court has held as follows:-
"But in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must in lieu of payment of some compensation or rent"
18. While dealing with the scope of consideration, the Apex Court in the very same decision cited supra, has held as follows:-
"It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub-tenancy. This frustrates and defeats the purpose of the Rent Act"
19. The Apex Court in Rajbir Kaur v. M/s. S. Chokosiri And Co., has framed guidelines as to how inference can be drawn on the basis of exclusive possession of the third party regarding monetary consideration, and has held as follows:-
"If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transactions is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the party's case is on the party who takes the risk of non-perusuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that, appellants having been forced by the Courts below to have established exclusive possession of the ice- cream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the Courts below to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found."
20. In the decision in M/s. Delhi Stationers and Prinders v. Rajendra Kumar, , the Apex Court has held as follows:-
"Under S.13(l)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as 'the Act'), the tenant is liable to be evicted, if he has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right might be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. See Gopal Saran v. Satya Narayana, supra."
21. Subba Rao, J., in the decision in Rangamannar Chetty v. Rangiah, , has held as follows:-
"It is clear from the aforesaid decisions that there cannot be a sub-letting unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of right to enjoy such property. Therefore to create a lease or sub-lease a right to exclusive possession and enjoyment of the property should be conferred on another."
22. From the above decisions it is very clear that to impose the penalty of foreclousure on the ground of subletting it has to be proved that the tenant has parted with legal possession, and, such parting is in lieu of monetary consideration. In the present case, we have to now see whether such ingredients are established. The petitioners have come forward with the specific case in the petition that the first respondent has sublet the premises in favour of the second respondent and one Mariammal and parted with possession of the same for a fixed rent. The initial burden is on the landlords to prove that the tenants have parted with legal possession of the premises for monetary consideration. To prove the case of sub-lease the first petitioner was examined as P.W.1 P.W.1 in his chief examination has stated that the first respondent has sublet the premises to the respondents 2 and 3 and the first respondent is occupying the portion of the premises. The relationship of the respondents 2 and 3 with the first respondent is admitted in the evidence. In the cross- examination, he says as follows:-
The first respondent examined herself as R.W.1. In the evidence in chief-examination she has deposed as follows:-
In the cross examination also she admits that the respondents 2 and 3 were permitted by her to occupy the premises and the second respondent has been occupying the premises for 19 years and the third respondent for the last 10 years. She has specifically stated that she is not receiving any rent and the occupation of them is not as sub-lease. From the above evidence it is very clear that the premises for occupation of second and third respondents is not in lieu of any monetary consideration. Even the Rent Controller has accepted the case of the first respondent in this respect. From the abovesaid decisions, the second contention, namely, the permission to occupy in lieu of monetary consideration is absent in this case.
23. The learned Additional Advocate General appearing for the petitioners relyied on the decision in Shah Phoolchand Lanchand v. Parvati Bai, AIR 1980 S.C. 865 in support of his submission that since the petitioners have established the possession by third parties, it is for the tenants to prove that they are not receiving any rent. In the abovesaid decision, the Apex Court has held as follows:-
"There is evidence to show that M/s. Adeshwar Glass Mart was carrying on business at the said premises and that firm was carried on in the said premises even for some time during which the appellants-firm had ceased to carry on the business there. Moreover, although a notice was given by the respondent to the Appellants and M/s. Adeshwar Glass Mart to produce their income-tax returns, assessment orders as well as account books and ledgers for the relevant period these were not produced. It was surely open to the trial Court from these circumstances to come to the conclusion that had the account books and ledgers been produced, they would have shown that rent was received by the appellants from M/s. Adeshwar Glass Mart which would justify the finding of subletting. In these circumstances, this contention of Mr.Nayar must fail"
Again, the learned Additional Advocate General has relied on the decision in Roop Chand v. Gopi Chand, and the decision in Ram Saran v. Phare Lal, . In all the abovesaid cases, the Apex Court has decided the cases on the basis of the facts of the respective cases. In those cases, the sub-tenants were doing their business or activity, exclusively and with all rights and so the Apex Court has come to the conclusion that the tenants or sub-tenants have not proved by producing records maintained by them to show that no rent was paid to the tenant, and in the absence of any such proof, it was held that there was an unauthorised sublease. So, the abovesaid decisions cannot have any assistance to the petitioners in this case. In this case evidence is available to decide the said issue as discussed earlier.
24. In M/s. Bharat Sales Ltd. v. L.I.C. of India, 1998 (2) Supreme 91, the apex Court while discussing as to how inference can be drawn regarding the payment of monetary consideration, has held as follows:-
"Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overtacts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation it would be difficult for the landlord to prove, by direct evidence, the contractor agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sublet or it may have been pair of promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet"
There cannot be any dispute about this proposition. Similar view has been taken by M.N.Chandukkar, C.J., as he then was, in Subramanian v. Malar Selvi, 99 L.W. 1064. But in the present case as stated earlier, the first respondent has deposed that the respondents 2 and 3 are not paying any monetary consideration and they have been permitted to be in possession of the premises. In the chief examination. R.W.1 has stated as follows:-
This has not been challenged in the cross-examination. There is no other evidence available on record to take a different view. Moreover, the authorities below have concurrently found that no monetary consideration was being received by the first respondent from respondents 2 and 3. In view of the above specific evidence available on record, relying on the abovesaid decisions of the Apex Court, the petitioners cannot be allowed to urge that this Court has to inferfere with the orders of the authorities below, in the absence of monetary consideration, in lieu of the possession of the respondents 2 and 3 in the premises. Since the fact of payment of rent which is also an essential element of sub-lease, has not been established, the case of the petitioners that the respondents are liable to be evicted on the ground of unauthorised subletting also cannot be sustained.
25. In view of the above discussions, I do not find any merits in the revision. Hence the same is dismissed. No costs.