Bhanwarlal Guman Singh vs Ratanlal Lahoti

Ram Pal Singh, J.

Defendant/appellent has preferred this Second Appeal against the judgment and decree passed in Civil Appeal No. 95-A /80, by the Additional Judge to the Court of District Judge, Guna, dated 16-5-1980.

Plaintiff /respondent filed a suit of ejectment from residential accommodation u/s 12(1)(b) of the M.P. Accommodation Control Act, against the defendant/appellant in the Court of 1st Additional Civil Judge, Class II, Guna. The suit was filed on the ground of sub-letting or/and parting with possession of one room of the rented premises by the tenant, Bhanwarlal, to one Jagdish Prasad. Ex. P-1 notice was served by the plaintiff /respondent to the tenant-defendant, Bhanwarlal, on 14-10-1977. It took nearly six months for the defendant/appellant to reply this notice dated 20-4-1978, which is Ex. P-2. In his writen statement as well he admitted that Jagdish took the occupation of the part of rented premises. In para 3 of the written statement he states that he served a notice upon the said Jagdish Prasad to vacate the premises but the copy of said notice has not been produced by him during the trial.

The trial Court decreed the suit, aggrieved by which he preferred an appeal in the Court of District Judge, Guna. Appeal was also dismissed.

The substantial question of law framed is:--

Whether under the circumstances in the case the appellant can be said to have sub-let part of the demised premises to one Jagdish Prasad?

To me this seems to be a question of fact and not of law. However, Shri Swami Saran submits that the Courts below have over looked the fact that under law, a tenant can create a lease of the rented premises and can give it occasionally to others for limited use. Be that as it may but the concurrent finding of fact is that defendant /appellant has sub-let the premises to one Jagdish Prasad. It is settled that this Court in Second Appeal shall not disturb the finding of fact, how so erroneous it may be. See Ramappa''s case A I R 1963 S C 1993 and The State of U.P. Vs. Ram Chandra Trivedi, . The learned counsel for the appellant has failed to point out any perversity in this finding. It is apparent that the question involves nothing but reappraisal of the evidence. In this situation no question of law, much less a substantial question of law arises in relation to the ground u/s 12(1)(b) of the Act.

Before parting with this judgment I would like to answer with regard to the burden of proof in cases tried u/s 12(1)(b) of the Act, as this point has been agitated by the learned counsel of both sides.

The question, whether there is unlawful sub-letting in most cases, a matter of inference to be drawn from the facts of each case. The initial onus to prove unlawful sub-letting, in the first instance, lies upon the plaintiff. Sub tenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed upon the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but establish a positive aspect about the capacity in which the alleged sub-tenant is occupying the premises, and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts in which a third person has been inducted into the whole or any part of the premises are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of sub letting. And defendant, in this case, failed to do so. The defendant has not only failed to plead and prove all the facts but has not produced the necessary documentary evidence.

Consequently, this appeal is dismissed. The respondent shall receive the costs throughout.