Kunhikrishnan vs Madhavi

Revision petioner is the first respondent - tenant in a petition for eviction filed u/s 11 (2) (b) and 11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act (for short "the Act") by respondent herein. The petition for eviction was filed alleging that revision petitioner has taken two shop-rooms belonging to Kandiyan Krishnan husband of the respondent herein, on the basis of a Kaichit executed on 13-11-1981 agreeing to pay a rent of Rs. 65/- per month. Kandiyan Krishnan died and as per his registered will the two shop-rooms sought to be recovered were bequeathed to his sons respondents 3 and 4 in the petition giving respondent herein a right to collect rent from the tenant. Revision petitioner has attorned to her and her children. Thereafter he has kept rent in arrears from 1st April 1986 and has sub let the rooms to one C.K. Rajesh, second respondent in the petition to conduct a Furniture Mart in the name and style "New Life Furniture"

without the knowledge or consent of the landlord. It was further alleged in the petition that revision petitioner is not occupying the shop - rooms and is conducting a ration shop in his own building. Revision petitioner denied the allegations regarding arrears of rent and subletting and contended that he is still in possession of the shop-rooms and is running the furniture mart by himself. Further it was alleged that Rajesh is only an employee under him who makes furniture for him. He has caused Rajesh to apply for a loan from a Bank under a Self Employment Scheme and for that purpose has executed a document in respect of the shop - rooms purporting to be a lease in favour of Rajesh. The loan is intended for his own purpose. Respondents 2 to 4 remained ex parte during the trial of the petition.

To establish sub letting of the rooms landlord relied upon Ext. A5, a pass book issued by Rajesh, the alleged sub tenant and his father, in the name of a customer who wanted to purchase furniture and Ext. X1 and Ext. X2, registration copy of Kaichit executed and loan application submitted by Rajesh. Ext. X1 is a Kaichit to which revision petitioner and Rajesh are parties. The recitals in Ext. X1 showed that the building sought to be recovered is entrusted to Rajesh, for a period of 9 months on a monthly rent of Rs. 65/- by Revision petitioner. Ext. X2 is the loan application submitted by Rajesh for availing a bank loan.

The case put forward by revision petitioner that Est. X1 Kaichit does not represent a real transaction and that it was executed only for the purpose of enabling Rajesh to avail a loan from the bank for and on behalf of revision petitioner, is not believed by the statutory authorities. On a consideration of the facts and circumstances of the case and appreciating the oral evidence, the statutory authorities have come to the conclusion that revision petitioner has sub let the shop-rooms in question. However, the Rent Controller found that there is no arrears of rent. Accordingly an order of eviction was passed u/s 11 (4) (i) of the Act. The appellate authority has confirmed the order of eviction as per the impugned order.

Learned counsel for revision petitioner has contended that both the authorities below have committed a serious error in coming to the conclusion that revision petitioner has sub let the shop-rooms solely on the basis of Ext. X1 and X2 documents. Relying upon the decision reported in Lela v. Ali (1982 KLT 685) learned counsel has submitted that a finding regarding sub lease can be legally entered only on the landlord establishing that exclusive possession of the shop-rooms has been transferred by the tenant for valuable consideration to a third person and in this case, there is no evidence to show that exclusive possession of the shop-rooms was given to Rajesh for valuable consideration. Hence it is contended that landlord has failed to establish sub letting as alleged and no order ought to have been passed for eviction. The learned counsel for the petitioner has strongly relied upon the following observation of the learned Judge in Lela''s Case, 1982 KLT 685 in support of his contention:

........If exclusive occupation is not established and if the letting out is not established as one for valuable consideration, it cannot be said that there is an objectionable sub-letting as contemplated under the Act and as explained by the decision of the Supreme Court in Smt. Krishnawati Vs. Shri Hans Raj, .

We find that the learned Judge while making the above observation has only adopted the observation of the Supreme Court in Smt. Krishnawati Vs. Shri Hans Raj, . The relevant, passage in the Supreme Court decision is as follows:

........If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence....

The Supreme Court has made the above observation in a case where sublease alleged was one created by a wife in favour of the husband and with reference to a premises where she was living along with her husband, the alleged sub lessee. This is clear from the following observations:

......Sub-letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of licensee. If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises......

Thus, it is with reference to an alleged letting of a building by a wife to her husband where normally there is no'' scope of drawing a presumption u/s 114(f) of the Evidence Act that letting was for valuable consideration, that Supreme Court has made the above observation. Taking note of the facts and circumstance of the case dealt With by the Supreme Court, we are of the view that the principle laid down by the Supreme Court cannot be taken as a general principle of law bound to be applied uniformly in all cases where the question is whether a transfer of possession amounts to sub letting or not. This is clear from the fact that the above observations in Krishnawati''s Case, AIR 1914 S.C. 280 were based upon an earlier decision of the'' Supreme Court reported in Associated Hotels of India Ltd., Delhi Vs. S.B. Sardar Ranjit Singh, wherein it was observed thus:

...............The onus to prove sub - letting was on the respondent. The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration...2...........

That was a case where the landlord adduced positive evidence to prove actual transfer of exclusive possession for valuable consideration and it was referring to those facts the Supreme Court made the above quoted observations. We are of the view that it was not as a statement of a general principle of law that the Supreme Court made the following observations. If was only as a principle applicable to the facts of that case that the Supreme Court made the above observations. The above principle may not be applicable to a case where'' letting has taken place under circumstances where legitimately a presumption regarding valuable consideration can be drawn u/s 114 of the Act on the landlord establishing transfer of exclusive possession by the tenant. In such circumstances, on establishing that tenant has transferred exclusive possession to another person, the court may legitimately draw a presumption u/s 114 of the Evidence Act that the transfer was for valuable consideration so as to shift the burden to the tenant. The landlord may thus rely upon the presumption available to him u/s 114 of the Evidence Act in suitable cases for the purpose of discharging the initial burden. It may then be open to the tenant or alleged sub tenant to disprove the prime facie case of sub letting established by the landlord by specifically pleading and proving the real terns and conditions subject to which possession was transferred and which would negative the case of sub lease. Such facts and circumstances may be unknown to the landlord and known to the tenant and the alleged sub tenant. If in all cases the landlord is required to prove positively, by adducing evidence that transfer of possession was for valuable consideration, it may not be possible to prove sub letting in any case except in rare cases such as the one On hand. We find that this is the view taken by this Court in two earlier decisions reported in Ulliveetil Abu v. Beebi, ILR 1969 (2) Ker 575 and Sreepathi Poti v. Venkitasubramonia Iyer, 1976 KLT 256. In Abu''s Case, ILR 1969 (2) Ker 575, this Court has stated the law thus:

While the initial onus of proving subletting or a transfer of the leasehold is on the landlord, once the Court is satisfied that there has been a transfer of possession the onus may shift and the tenant, within whose special knowledge the facts explaining the manner in which such possession has been transferred lie, may have to bear the burden thereafter.

This was followed in Sreepathi Poti v. Venkitasubramonia Iyer, 1976 KLT 256. While dealing with the question whether a particular transaction amounts to a lease or licence, Supreme Court has in the decision reported in Konchada Ramamurthy Subudhi and Another Vs. Gopinath Naik, observed thus:

.......... if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.

The above observation of the Supreme Court though makes no reference to the presumption available u/s 114 of the Evidence Act would support the view taken by this Court in Abu''s Case, ILR 1969 (2) Ker 575 and Sreepathi Poti''s Case, 1976 KLT 256, In this view we find it difficult to approve the observations contained in Lela''s Case, 1982 KLT 685 and relied upon the learned counsel as laying down a principle of law uniformly applicable in all cases where sub letting is alleged as a ground for eviction. Thus, we hold that for the purpose of discharging the burden of establishing a prima facie case of sub letting, the necessity of proving specifically that, letting was for valuable consideration may arise only in cases where it may not be possible to draw a presumption u/s 114(f) of the Evidence Act. 7 Turning to the facts of this case, both the authorities below have disbelieved the case of the tenant that Ext. X1 is a sham or nominal transaction. After disbelieving the evidence of the tenant, they have found that Ext. X1 is a genuine document evidencing a real lease arrangement intended to be acted upon and in fact acted upon as evidenced by Exts. A5 and X2 documents. If Ext. X1 is accepted as a genuine document it furnishes the best evidence of letting for valuable consideration and that is sufficient to discharge the burden on the landlord and to shift the burden on to the tenant or sub tenant to disprove the prima facie case established by the landlord The sub tenant remained ex parte. Except putting forward a plea that Ext. X1 is only a sham or nominal transaction which has been concurrently found against by the authorities below the tenant has not proved any other circumstance to disprove the prima facie case established by the landlord. In the circumstances, we find no error in the decisions of the authorities below calling for interference in revision. We accordingly dismiss the revision.