Ashok Kumar Secretary Om Hare Kasth and Loha Sansthan and Others vs Narain Dharamshala Trust and Others

Prakash Krishna, J.—The present revision has been filed u/s 25 of the Provincial Small Cause Courts Act and is directed against the judgment dated 31-5-2007 passed by the Additional District Judge Court Room No. 1 Jhansi exercising powers of Judge, Small Causes Court in SCC suit No. 5 of 1997.

Narain Dharmshala Trust, the opposite party No. 1 herein along with Mangal Sen Chhabra, the opposite party No. 2 herein, instituted SCC suit No. 5 of 1997 against three persons namely Vijay Raj Jain, Ashok Kumar (Applicant No. 1 herein) and Jakir Hussain (Applicant No. 2 herein) for their ejectment and recovery of arrears of rent from the property situate at Jokhan Bagh, Civil Lines, Jhansi. The suit was instituted on the pleas inter alia that Vijay Raj Jain, defendant No. 1 in the suit is the tenant of the disputed premises No. 330/1B bounded by the boundaries described in the plaint at the rate of Rs. 2,000/- per month. He has not paid the rent from 1-3-1996 and has sublet the portion under his tenancy illegally without the consent of the plaintiffs, who are the landlords, to Ashok Kumar (defendant No. 2) and Jakir Hussain (defendant No. 2). The tenancy of the chief tenant Vijay Raj Jain has been determined by means of a notice dated 1-3-1997 served on 2-3-1997.

The suit was contested by the defendant No. 1 by denying the plaint''s allegations regarding subletting. However, the relationship of landlord and tenant in between himself and the plaintiffs was not disputed. It was also admitted that plaintiff No. 2 is the Manager of plaintiff No. 1 and the plaintiff No. 1 is a religious Trust. A separate written statement was filed on behalf of defendant No. 2 who came out with a case that he is direct tenant of plaintiffs since 1-1-1995 on monthly rent of Rs. 150/- with respect to two rooms of the disputed premises. Similarly, the defendant No. 3 also pleaded that there is direct relationship of landlord and tenant in between himself and the plaintiffs.

The parties led evidence, oral and documentary, in support of their respective cases. On the basis of the pleadings of the parties, the following issues were framed by the trial court:

1- Whether the provisions of U.P. Act No. 13 of 1972 are applicable to the disputed premises?

2- Whether the defendant No. 1 has committed default in payment of rent?

3- Whether defendant Nos. 2 and 3 are Shikmi tenants?

4- Whether the disputed premises is sufficiently identified?

5- Whether the requisite notice was valid and has been sufficiently served upon the defendants?

Under issue No. 1 it was found that the provisions of U.P. Act No. 13 of 1972 are applicable. Under issue No. 2 it was found that the defendant No. 1 has committed default in payment of rent to the plaintiffs. Under issue No. 3 it was found that the defendant Nos. 2 and 3 are sub-tenants of defendant No. 1. Under issue No. 4 it was found that the property is identifiable by the undisputed boundaries. Under issue No. 5 it was held that the notice determining the tenancy is valid and has been sufficiently served upon the defendants. The suit was decreed on 31-5-2007 against the defendants for recovery of Rs. 46,800/- as arrears of rent and ejectment. The damages has been awarded at the rate of Rs. 75/- per day from the date of filing of the suit till the date of actual vacation of the premises in dispute.

Challenging the aforesaid judgment and decree, the present revision has been filed.

Sri Arvind Srivastava, learned Counsel for the applicants submits only one point in support of the revision. He submits that the findings recorded by the trial court on the question of subletting is vitiated in as much as the burden has been wrongly placed upon the defendant Nos. 2 and 3. He submits that the defendant Nos. 2 and 3 are direct tenants of the plaintiffs. In contra, Sri Rishikesh Tripathi, learned Counsel for the plaintiffs (landlords) opposite parties submits that the findings recorded by the trial court on the question of subletting are essentially findings of fact, based on appreciation of material on record, and no interference u/s 25 of the Provincial Small Cause Courts Act is called for.

Considered the respective submissions of the learned Counsel for the parties and perused the record.

As noticed hereinabove, the only point involved in the present revision is-whether the finding recorded by the trial court under issue No. 3 regarding subletting is legally sustainable. The trial court appreciated the evidence of the respective parties and reached to the conclusion that the defendant Nos. 2 and 3 are sub-tenants of defendant No. 1. To arrive at the said finding, the trial court has taken into consideration, the admitted facts of the case. None of the defendants could produce any evidence or material in the form of rent receipt to show that they ever tendered the rent to the plaintiffs. None of the defendants could produce any evidence to show the consent of the plaintiffs for letting out the disputed accommodation in their favour.

Plaintiff No. 2 Mangal Sen Chhabra has examined himself as PW 1. He has stated that the said building consists of 12 rooms and he used to give rent receipts to the defendant No. 1 to whom nine rooms were let out. The landlord has stated that except Pradeep Kumar Agrawal, the plaintiff has not let out to any other defendants. Pradeep Kumar Agrawal is in occupation of two front rooms and defendant, Jakir Hussain is in occupation of back rooms as sub-tenant. In cross examination, he has stated that he never let out the disputed accommodation to Jakir Hussain nor he ever received rent from Jakir Hussain as he was not his tenant. The landlord has been crossed examined by the defendant No. 3 separately but nothing could be elucidated by him which may support latter''s case.

It may be noted that there is a document in the shape of affidavit of Jakir Hussain wherein he has admitted that he is sub-tenant of the disputed accommodation. The said affidavit has been proved by the landlord. In this regard the trial court has made the following observation in its judgment:

...It is also relevant to state here that plaintiffs/landlords have also filed on affidavit of defendant No. 3, Jakir Hussain (paper No. 87C), wherein defendant No. 3, Jakir Hussain has stated that he is the Shikmi tenant of the portion of the disputed property. The plaintiff No. 2 has proved the signatures and contents of this document in his testimony.

It is not out of place to mention here that the said portion of the judgment was not challenged by the learned Counsel for the applicants before me. Not a single argument was advanced by the learned Counsel for the applicants with regard to the aforestated portion of the judgment. Learned Counsel for the applicants very conveniently ignored the said portion of the judgment and he could submit only this much that entire burden has been wrongly placed by the trial court on the defendants. In view of the admission of defendant No. 3, Jakir Hussain, which is unrebutted and unexplained, the conclusion drawn by the trial court in this regard is liable to be sustained, there being no fault.

As regards burden of proof is concerned, the plaintiff has examined himself as PW 1. He has discharged the burden. It was open to the defendants to place the relevant material on record in support of their case. In the case of sub-tenancy, only two things are required to be seen (1) exclusive possession of the alleged sub-tenant and (2) payment of rent by the sub-tenant to the chief tenant. In the case on hand, on their own showing, the defendant Nos. 2 and 3 are in exclusive possession of the portion of the tenanted property. As regards payment of rent by them to the chief tenant namely defendant No. 1 is concerned, there cannot possibly be any direct evidence in such matters, as said by the Supreme Court in the case of Gopal Saran v. Satyanarayana JT 1989 (Supp.) SC 21 that subletting means transfer of an exclusive right to enjoy the property in favour of the third party. In this case the Supreme Court has referred its earlier judgment in Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, wherein it was held that to constitute a subletting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was subletting was substantially a question of fact.

The same principle has been reiterated very recently in Ms. Celina Coelho Pereira and Ors. v. Ulhas Mahabaleshwar Kholkar and Ors. JT 2009 (13) SC 602. In this case, the Supreme Court set aside the judgment of the High Court when the High Court had interfered with the finding of subletting as was recorded by the court, below to it.

In view of the above discussions, the contention that entire burden has been laid on them by the trial court is not correct. The trial court, after making an analysis of the evidence of the respective parties, reached to the conclusion that the defendant Nos. 2 and 3 are the sub-tenants. The said finding recorded by the trial court is well considered finding and is based on appreciation of evidence. No illegality or perversity could be pointed out therein, in the present revision.

In addition to above, as noticed hereinabove, there being a categorical admission on the part of the defendant No. 3, Jakir Hussain, who is applicant No. 2 herein, no interference in the present revision is called for.

The revision is devoid of substance. It is, therefore, dismissed with costs of Rs. 5,000/-.