Kamlesh Kumar and Others vs Prem Chand and Another

V.S. Aggarwal, J.—The present revision petition has been filed by Kamlesh Kumar and others (hereinafter described as ''the petitioners'') directed against the order passed by the learned Rent Controller, Faridkot dated 1.3.1979 and of the Appellate Authority, Faridkot dated 19.3.1981. The learned Rent Controller had dismissed the petition filed by the petitioners and the appeal filed by the petitioner failed before the Appellate Authority.

The relevant facts giving rise to the present revision petition are that petitioners filed the petition for eviction against Prem Chand (respondent No. 1) and M/s Banarsi Dass Gian Chand (respondent No. 2). It was asserted that respondent No. 1 Prem Chand is the tenant in the suit premises at a monthly rent of Rs. 100/-. He has not paid the arrears of rent from 1.3.1977. it was further asserted that the tenant-respondent No. 1 had made material alterations in the suit premises and has removed the wooden planks partitioning the shop and fixed almirahs after removing the planks in collusion with Chanan Mal Jagan Nath. This has materially impaired the value and utility of the shop. The suit premises were stated to be unfit and unsafe for human habitation. Lastly it was the case of the petitioners that respondent No. 1 has sublet the last bay of the shop to respondent No. 2. Respondent No. 2 is in exclusive possession of the same and has stocked his gur (jaggery) in that place.

The petition for eviction was contested by respondent No. 1. It was asserted that on the first date of hearing the arrears of rent had been tendered. Accordingly, the said ground of eviction was given up by the petitioners. It was denied that there was any impairment in the value and utility or that the property had become unsafe and unfit for human habitation. It was contended that the property had not been sublet to respondent No. 2. The defence offered by respondent No. 1 was that possession of the suit property remains with him. He has the key of the shop. Respondent No. 2 had placed some bags of gur in a portion of the shop with the permission of respondent No. 1.

Respondent No. 2 was proceeded ex parte. He submitted an application for setting aside the ex parte order against it dated 18.11.1977. It was set aside. Respondent No.2 admitted the claim of the petitioners and took up the contention that it had paid the rent for four months amounting to Rs. 160/- and that relevant entry has been made in the account books.

From these pleadings of the parties, the learned Rent Controller framed the issues. It was held that the property in question cannot be said to have become unfit and unsafe for human habitation. The said finding had not been disputed before this Court nor was disputed that respondent No. 1 has not materially impaired the value and utility of the property. The learned Rent Controller held that property had not been sublet to respondent No. 2. He believed the version of respondent No. 1 that respondent No. 2 was merely a licencee therein. The contention of the petitioners that property has been sublet was rejected holding that the account books of respondent No. 2 have been forged. Accordingly, the petition for eviction was dismissed. Aggrieved by the same an appeal was preferred and the learned Appellate Authority as mentioned above approved the findings of the learned Rent Controller. Hence, the present revision petition.

Learned counsel for the petitioners urged vehemently, that once it is shown that the third person is in possession, in that event it must be presumed that there was subletting of the property and it is for the tenant to explain the possession of the third person. The principle of law is well settled that a landlord is a stranger to any agreement between the tenant and the sub-tenant. There would be very rare cases that such an agreement would be known to the landlord. When a third person is found to be in possession, then the onus shifts on the tenant to explain the possession of the third person. Reference in this connection can well be made to the decision of the Supreme court in the case of M/s Bharat Sales Limited v. Life Insurance Corporation of India RLW 1998 (1) (P&H) 137. In paragraph 4 the Supreme Court held:-

"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 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 overt acts 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 contract or 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 paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not requires 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."

Taking advantage of the said principle, learned counsel for the petitioner asserted as mentioned above that it has been established that a third person has been in possession of the property. According to him the Local Commissioner even found the third person in possession and in his own right and it was established that rent was being paid by the said person.

Before proceeding further one can conveniently refer to the fact that subletting is generally to be inferred whether between the third person and the tenant there is a relationship of tenant and landlord and the third person is shown to be in legal possession in a part of the property to prompt the Court to infer that it is a case of subletting.

In the present case, the defence offered by respondent No. 1 was that respondent No. 2 was only permitted to keep his goods in the suit premises for a short period. He was not a sub-tenant but was in permissive possession. The precise defence offered in the written statement was:-

"The facts are that the shop of the respondent No. 2 is near the shop in dispute. The respondent No. 2 had made an order for Gur which came in large quantity and there was no place in the shop of the respondent No. 2. Nor for placing the bags of Gur. The respondent No. 2 approached the respondent No. 1 and requested for placing of bags of Gur for some time to which the respondent No.1 agreed. The respondent No. 2 placed some bags of Gur in the shop in dispute. The respondent No. 1 did not charge any rent from the respondent No. 2. The possession of the shop remained with the respondent No. 1. The keys of the shop remained always with the respondent No. 1. The respondent No. 2 placed some bags of the Gur in a portion of the shop where goods of the respondent No.l were lying. Respondent No.l never sublet any portion of the shop to respondent No. 2."

In the present case as mentioned above, firstly the respondent No. 2 when served did not appear before the learned Rent Controller. He was proceeded ex parte. Thereafter, he preferred an application for setting aside the ex parte proceedings and immediately came up with the defence supporting the case of the petitioners-landlord. What prompted respondent No. 2 to do so is anybody''s guess. It betrays common sense to believe that even if it was there as a subtenant, it would immediately come forward to get the ex parte order set aside. The under-line idea is obvious that it was mixed up with the petitioners and only lateron thought it appropriate to help the petitioners in this process.

Admittedly, the shop in question has three khans. It is not in controversy that respondent No. 1 could only lock the same from out side. Strong reliance was placed on the fact that in the Rokar and the Khata, respondent No. 2 is shown to have paid rent to respondent No. 1 and copies produced are Exs.A-1 to A-5. However, the said entries were rightly rejected. This is for the reason that they pertained to the account of one Nihala Mai Gurdial Mal and not of respondent No. 1. The testimony made by respondent No. 2 that he had paid the rent to respondent No. 1 necessarily must be rejected because no signatures of respondent No. 1 had been taken. In fact one is constrained to observe that the said entry cannot even be taken to be genuine. The entries in the account books were rightly held to be fabricated. Ex.A-1 is the copy of the Rokar of 31.3.1977, paid on 25.3.1977. But entry in the Khata was made in Khata of 1.4.1976, copy of which is Ex.A-2. This fact shows that it was only a clumsy attempt on behalf of respondent No. 2 to support the case of respondent-petitioners. Similarly vide Ex.A-5 rent of Rs. 62.50 paise was paid from 17.8.1977 to 17.9.1977 i.e. for one month. Respondent No. 2 had claimed that rent was Rs. 40/- p.m. There is no explanation as to why excess amount was paid. The account books and the statement of respondent No. 2 were, therefore, rightly rejected.

In that event reliance was placed on the statement of Shri Devinder Kumar, Advocate AW-5. He was appointed as a Local Commissioner. He had submitted his report Ex.AW-5/A. He stated that Prem Chand respondent No. 1 was working there. He told him that key was with M/s Banarsi Dass Gian Chand. During cross-examination the witness stated that he does not orally remember the date on which he visited the spot. After seeing the report he stated that he visited the spot on 8.8.1977 and prepared the report on 1.9.1977. He further stated that he had visited the shop all alone. It was admitted that shop comprised of 3 bays. According to him the first bay could be locked. However, the witness could not name the shop which adjoins the disputed shop. It was found as of fact that there was no door fitted to the third bay. Therefore, question of locking the same did not arise. His statement, therefore, is rightly rejected to be of no avail. It clearly shows that respondent No. 2 had only been permitted to keep his articles as a licencee of respondent No. 1 and that it was not a case of subletting. The respondent No. 2 was not in legal possession to the ouster of respondent No. 1 nor was a sub-tenant therein. The findings arrived at by the learned Rent Controller and the Appellate Authority are of fact. They are based on evidence. They are not shown to be erroneous. Consequently, there is no ground to interfere in the same.

The revision petition being without merit must fail and is dismissed.