Arumukhan, C.K. vs K.M. Rajasekharan and Others

P.K. Balasubramanyan, J.—The landlord of a building coming within the purview of the Kerala Buildings (Lease and Rent Control) Act, 1965 is the Petitioner in this Original Petition filed under Article 227 of the Constitution of India. The landlord sought eviction of the tenant under Sections 11(2)(b) and 11(4)(i) of the Act. The tenant denied that the rent was in arrears. He also denied that there was subletting. The Rent Controller allowed the application and granted an order for eviction both under Sections 11(2) and 11(4)(i) of the Act. The first Respondent-tenant filed an appeal before the appellate authority. The appeal was allowed by the appellate authority. It found that the existence of arrears of rent has not been proved and also took note of the fact that rent due from November 1979 has been deposited. The appellate authority also held that the fact that the landlord had proved that the tenant who was the first Respondent in the proceedings, had permitted Anr. to occupy the premises, cannot lead to an inference of subletting of the premises. The appellate authority took the view that subletting has not been proved. The order of the Rent Controller was reversed and the petition for eviction was dismissed. The landlord filed a revision before the District Court and the learned District Judge more or less adopting the reasoning of the appellate authority, dismissed the revision. This is what is challenged in this proceedings.

When this Original Petition came up before a learned Single Judge, the learned Judge thought that there was some conflict between the decisions in Leela v. Ali 1982 KLT 685 and Abdul Rahiman Kunju v. Rent Control Revisional Authority 1992 (2) KLT 600 leading to confusion and the confusion requires to be resolved by a Division Bench. The matter was, thus referred to the Division Bench.

Regarding the existence of arrears of rent, it is not necessary for us to advert to the same at this stage since we feel that the entire matter requires to be reconsidered in the light of the view taken on the question of subletting. We, therefore, only vacate the finding now rendered and remand the claim of the landlord u/s 11(2) of the Act to be reconsidered by the appellate authority when the appeal is reconsidered by it.

Now, we come to the question of subletting. It was the case of the landlord that the building was leased out to the first Respondent and the first Respondent had sublet the building to the 2nd Respondent, who was conducting a tailoring business in this building. The first Respondent denied the subletting. He also contended that Respondent No. 2 was not the proprietor of the tailoring business. The first Respondent was the proprietor of the tailoring business also and the 2nd Respondent was only his employee. The 2nd Respondent did not appeal and contest the claim. The Rent Controller found that the tailoring business was being carried on in that premises and that too by a person who was different from the tenant of the building, who was the first Respondent. Since there was no evidence on the side of the first Respondent to explain or to establish the exact jural relationship between himself and the 2nd Respondent, the Rent Controller held that the landlord has, prima facie, established the subletting and was entitled to an order for eviction u/s 11(4)(i) of the Act. The appellate authority reversed this decision of the Rent Controller on the ground that the landlord has not proved that there was a transfer of possession for consideration by the first Respondent to the 2nd Respondent so as to postulate a subletting within the meaning of Section 11(4)(i) of the Act. The appellate authority brushed aside the effect of the decision in Sreepathi Potti v. Venkita Subramonia Iyer 1997 KLT 256 brought to the notice of that authority. It was thus finding that the landlord has not established the subletting, that the appellate authority allowed the appeal. Before the revisional Court, the case of the landlord was projected on the basis that presence of the second Respondent in a portion of the building was admitted and once that was admitted, the burden has shifted to the first Respondent-tenant to explain on what basis, Respondent No. 2 had been let into possession of a portion of the building. It was contended that in case the first Respondent had a contention that the 2nd Respondent was employed by him in the business of tailoring, it was for the first Respondent to prove the same. It was pointed out on behalf of the landlord that the first Respondent had not produced any document to show that the 2nd Respondent was his employee and was being paid salary. It was also pointed out that no evidence was adduced by the first Respondent to show that the tailoring business belonged to the first Respondent. It was, therefor, contended on behalf of the landlord that it had to be taken that the landlord had established a case of subletting. It was further contended that on the materials the burden has shifted to the first Respondent to show the exact relationship between him and the 2nd Respondent and the first Respondent not having adduced any evidence to establish that relationship, the landlord was entitled to an order for eviction. The District Judge stated that he was not able to agree with the contentions raised on behalf of the landlord. The District Judge further held that the initial burden to prove the sublease was on the landlord. The Court went on to say that one of the conditions to be satisfied was that there must be vesting not only of physical but also of legal possession by the tenant on the sub-tenant, We are afraid that the District Judge has completely misdirected himself in appreciating the contentions raised on behalf of the landlord. It was a case where the landlord had established that the first Respondent was his tenant and that a business different from the one for which the building was let, was being conducted not by the tenant-first Respondent, but by Anr. person, the second Respondent, We find that the burden that rested with the landlord had been prima facie discharged by the landlord by adducing such evidence. In fact, this question is not res integra. The Division Bench in Kunhikrishnan v. Madhnvi 1991 KLT (1) 515 had indicated that the prima facie burden on the landlord would stand discharged by adducing evidence that someone other than the tenant is in physical occupation of the building. This view has been reiterated in Abdul Rahiman Kunju v. Rent Gontroll Revisional Authority 1992 (2) KLT 600. In fact, this view had been projected by this Court in Sreepathi Poti v. Venkita Subramania Iyer 1976 KLT 256 relying on an earlier decision of His Lordship, Justice V.R. Krishna Iyer (as he than was) in Ulliveetil Abu v. Beebi ILR 1969 Ker 575. The observations in Leela v. Ali 1982 KLT 685 which are contrary to the approach and reasoning adopted in the three decisions referred to above, cannot be considered to be correct. Of course, the District Judge has not referred to or relied on the decision in Leela v. Ali 1982 KLT 685. But we would hold that the observations in Leela v. Ali 1982 KLT 685, to the extent they run counter to the view expressed in Sreepathi Poti 1976 KLT 256 (Supra) and Abdul Rahiman Kunju 1992 (2) KLT 600 (Supra) cannot be considered to be good law.

The initial burden to prove a transfer of possession or subletting is of course, on the landlord. But once the landlord establishes that A was his tenant and further establishes that instead of A B was in occupation or he was conducting a business in the premises, the burden shifts to the tenant A to explain the nature of B�s occupation and to establish on what basis B was let into occupation by him. In other words, it is for A in such circumstances to establish clearly the jural relationship between himself and B. We consider this to be the correct position as recognised by the decision in Abdul Rahiman Kunju v. Rent Control Revisional Authority 1992 (2) KLT 600. Once the landlord has established that a person other than the tenant is in occupation of the premises, there is no further burden on the landlord to establish the exact relationship between the person in possession and the tenant and the burden shifts to the tenant to prove the exact relationship between himself and the person in possession or occupation and to rebut the presumption of sublease arising from the occupation of the other. Since the appellate authority and the revisional Court have wrongly approached the question falling for decision, we are satisfied that the decisions call for interference in this proceeding. By making an erroneous approach to the question falling for decision, the two authorities have committed an error of jurisdiction amenable to correction in a proceeding under Article 227 of the Constitution.

Since the appellate authority and the revisional authority have not properly approached the question for decision, we set aside the decisions of the appellate authority and of the revisional authority and remand the appeal, BRCA No. 5 of 1981 to the District Court, Alleppey for decision. The remand is made to the District Court in view of the fact that the appellate jurisdiction u/s 18 of the Act has now been vested with the District Court and not with the subordinate Court was the position when the present appeal was originally heard and disposed of.

The parties are directed to appear before the District Court, Alleppey on 21st June 1999.