Allahabad High Court
Brijendra Kumar And Others vs Suraj Bhan And Otehrs on 23 January, 2014
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - A No. - 67114 of 2005 Petitioner :- Brijendra Kumar And Others Respondent :- Suraj Bhan And Otehrs Counsel for Petitioner :- Manish Nigam,Rahul Sahai Counsel for Respondent :- Amit Krishan,S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Sandeep Agrawal, Advocate holding brief on behalf of Sri Rahul Sahai, Advocate for petitioners and Sri Amit Krishna, Advocate for respondent no. 1/1.
2. The respondent-landlord instituted Small Cause Suit No. 31 of 1993 seeking eviction of petitioners-tenants from premises in dispute, which is a shop situate at Kharod Dwar Kosikalan, Tehsil Chhata, District Mathura and the petitioners are tenants therein. It is said that petitioners have sub-let the suit property to another person who is not a family member and also in arrears of rent, therefore, are liable for eviction.
3. The Trial Court decreed suit on the ground of default in payment of rent but on the question of sub-letting though it found that an exclusive possession has been given by petitioners to a stranger, i.e., a person not family member of petitioners, but since the landlord has failed to prove that rent is being paid by occupant to petitioners, therefore, sub-letting is not proved.
4. However, since the suit was decreed, it is the petitioners-tenants, who preferred SCC Revision No. 25 of 2002. The Revisional Court has also confirmed the judgment of Trial Court but on a different ground. It has held that for the purpose of sub-letting once exclusive possession handed over to a person is proved, that is sufficient to deem a sub-letting in view of Section 12 read with Section 25(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") and actual payment of rent by occupant to main tenant is not required to be proved at all. Now, since sub-letting was proved in the case in hand, Revisional Court found no reason to interfere with the judgment of Trial Court though on a different ground. On the question of payment of rent, Revisional Court held that there is no default on the part of petitioners.
5. Learned counsel for the petitioners contended that in a case where suit is filed on the ground of sub-letting, payment of rent by the occupant to original tenant has to be proved and placed reliance on a decision of this Court in Ajit Singh Vs. Naresh Chand Gupta and others, 1981 ARC 332.
6. The only question up for consideration is whether the landlord satisfy the requirement of pleading and proof for the purpose of attracting Section 20(2)(e) so as to attract liability for ejectment from building in dispute.
7. Section 20(2)(e) reads as under:
"20. Bar of suit for eviction of tenant except on specified grounds-- . . . . . . .
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
. . . . . . . .
(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;"
(emphasis added)
8. The above provision takes this Court to Section 25 of Act, 1972 and it would be appropriate to notice Section 25 also, which reads as under:
"25. Prohibition of sub-letting.--(1) No tenant shall sub-let the whole of the building under his tenancy.
(2) The tenant may, with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building.
Explanation.--For the purposes of this section--
(i) where the tenant ceases, within the meaning of clause (b) of sub-section (1) or sub-section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part;
(ii)lodging a person in a hotel or a lodging house shall not amount to sub-letting." (emphasis added)
9. Explanation to Section 25 require this Court to go to Section 12(1)(b) and (2), which, in turn, read as under:
"12. Deemed vacancy of building in certain cases--(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if,--
. . . . . . .
(b) he has allowed it to be occupied by any person who is not a member of his family; or . . . . . . . .
(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building." (emphasis added)
10. In the present case it is not in dispute that the occupant is neither a member of petitioners' nor a partner, existing or a new one, as the case may be, but a total stranger and a third party. In view of the above provisions, it is thus to be seen whether petitioners-tenants have allowed alleged sub-tenant to occupy the shop in question wholly or partly or the same is sub-let to him.
11. Section 25(1) would apply to a case where the entire building is sub-let. Sub-section (2), however, permits sub-letting of a part of building provided a written permission has been obtained from landlord as well as the District Magistrate. In the present case no such permission is on record.
12. Now the only question remains to be considered, whether the case of sub-letting has been pleaded or proved by landlord or not.
13. In Jagdish Prasad Vs. Smt. Angoori Devi, AIR 1984 SC 1447 the Court held that a mere presence of a person other than tenant of a shop would not allow a presumption of sub-letting of shop. The presence of a person other than tenant on the tenanted shop may be in various capacities and multifarious situations. Sub-letting involves within its ambit a kind of control over premises by the person to whom it is let out, either by landlord himself or by tenants which is termed as sub-letting. The Court said:
"As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the Court to assume a subtenancy merely from the fact of presence of an outsider." (emphasis added)
14. In Dipak Banerjee Vs. Lilabati Chakraborty, 1987(4) SCC 161 the Court said that 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 be in lieu of payment of some compensation or rent. When a case of sub-letting is pleaded the two questions which would have to be asked and looked into by concerned Court would be, whether the alleged sub-tenant was in exclusive possession of part of premises and, whether the tenant had retained no control over that part of premises. The Court also put stress on the fact that there must be firstly a pleading that a sub-tenant was kept in exclusive occupation of any part of premises over which the tenant had not retained any control at all and the said pleadings must then be supported by evidence. In case one of the essential ingredient fails, it would result in rejection of all allegation of sub-letting. Similarly, payment of rent for sub-tenancy or consideration for sub-tenancy is another integral part. This also has to be pleaded and proved. A mere receipt of service in lieu of occupation of a part of premises as a licensee would not amount to payment or receipt of rent.
15. Sub-tenancy admittedly is not defined in the Act, 1972. However, Section 105 of Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882") defines the term "lease" and it has been held, that, what is lease between owner of property and his tenant, becomes a sub-lease, when entered into between tenant and tenant of tenant. The later being "sub-tenant" qua the "owner landlord".
16. In Mahendra Saree Emporium Vs. G.B. Sriniwasa Murthy, AIR 2004 SC 4289 the Court said that a sub-lease would imply and stand discharged by adducing prima facie proof of fact that alleged sub-tenant was in exclusive possession of premises or, to borrow the language of Section 105, was holding right to enjoy such property. A presumption of sub-letting may then be raised and amount to proof unless rebutted. In Delhi Stationers and Printers Vs. Rajendra Kumar, 1990(2) SCC 331, it is a case arising from Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Construing Section 13(1)(e) thereof which deals with a case of sub-letting, a ground to justify ejectment of tenant from a building, the Court said:
"Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must 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 excludes others. Mere occupation is not sufficient to inter either sub-tenancy or parting with possession." (emphasis added)
17. The thrust was on the fact as to who is in legal possession of premises. The Court relied on its earlier decision in Gopal Saran Vs. Satyanarayana, 1989(2) SCC 383.
18. In Joginder Singh Sodhi Vs. Amar Kaur, 2005(58) ALR 683 the Supreme Court considered question of sub-tenancy in the context of East Punjab Urban Rent Control Act. There a discordant note, in respect of payment of rent making one of the necessary condition for proving sub-letting. So far as exclusive possession is concerned the Court reiterated the consistent view taken earlier also and relying on Bharat Sales Ltd. Vs. Life Insurance Corporation of India, 1998(3) SCC 1 said that sub-tenancy or sub-letting comes into existence when tenant gives up possession of tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. The Court also referred to earlier two decisions in Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh, AIR 1968 SC 933 and Shama Prashant Raje Vs. Ganpatrao and others, 2000(7) SCC 522 wherein it was held that in a suit of landlord for eviction of tenant on the ground of sub-letting the landlord has to prove by leading evidence two situations, (1) a third party was found to be in exclusive possession of the rented property, and (2) parting of possession thereof was for monetary consideration. However, having said so the Court then proceeded to observe the practical aspect of the matter with regard to proof of payment of monetary consideration and said that arrangement of sub-letting is obviously a result of a secret and mutual agreement or understanding between tenant and the person to whom possession is so delivered. In this process the landlord is kept out of scene. In fact the entire transaction proceed behind the back of landlord concealing overt acts. The transfer of possession is 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 of that person, instead of the tenant, which ultimately reveals to the landlord that 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 contract or agreement or understanding between the tenant and the sub-tenant. The Court further said:
"It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let 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 paid or 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 sub-let."
19. The Court then refers to Smt. Rajbir Kaur and another Vs. M/s S. Chokesiri Co., 1989(1) SCC 19 wherein it was held that, exclusive possession, if established, 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 sub-letting 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. It is not, unoften, a matter for legitimate inference. The burden of making good a case of sub-letting 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-persuasion. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party being the legal burden, shifts according, as the weight of the evidence adduced, by the party during the trial.
20. Another case cited and referred in Joginder Singh Sodhi (supra) is Kala and another Vs. Madho Parshad Vaidya, 1998(6) SCC 573 wherein reiterating the principle discussed in Smt. Rajbir Kaur (supra) the Court said that burden of proof of sub-letting is on landlord but once he establishes burden of possession by tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus it is permissible to raise an inference that such possession was parted for monetary consideration.
21. It thus cannot be doubted that in order to succeed the plea of ejectment of a tenant on the ground of sub-tenancy the landlord has to prove that tenant has parted away exclusive possession of whole or part of tenanted premises to the alleged third person, i.e., sub-tenant. In the present case both the courts below have held that exclusive possession of premises in dispute, handed over to a third person, is proved. This concurrent finding, has neither been shown perverse, nor contrary to record, nor otherwise incorrect. In fact the argument raised admits that though possession is handed over, yet sub-tenancy shall not be deemed unless payment of rent is also proved. This assumption that payment of rent is necessary is unfounded and not required in law.
22. In order to constitute sub-tenancy handing over possession, wholly or partly, of tenanted premises to a stranger or third party, without consent of landlord, is sufficient and when legislature has not required anything more in this regard, it will not be permissible, either by judicial interpretation or otherwise, to add one more condition that payment of rent actually should also be proved. The Trial Court committed a manifest error by taking into consideration this requirement so as to constitute, whether sub-tenancy has been proved or not and this patent error committed by Trial Court has rightly been reversed and corrected by Revisional Court by holding that payment of rent is not necessary to be proved since under law if possession has been handed over to a third party, wholly or partly, of tenanted premises to the extent that occupant exercised his independent control over transferred premises, sub-tenancy shall be deemed to have come into existence in view of a deeming provision in the statute which has to be given effect in its entirety and its effect cannot be diluted by adding something which is not provided in the statute. I am, therefore, in the agreement with Revisional Court that once handing over possession to third person is proved, sub-tenancy has to be deemed and for the purpose of holding a case of sub-tenancy there is no further requirement of proving about payment of rent.
23. In view of above discussion, I find no legal or otherwise error in the judgments impugned in this petition.
24. The writ petition lacks merit. Dismissed.
25. Interim order, if any, stands vacated.
26. No costs.
Order Date :- 23.01.2014 AK