M. Gulam Rasool vs T.S. Govindarajan and 3 others

The tenant is the revision petitioner. His eviction was sought on the ground of sub-letting.

The case of the first respondent/ landlord is that the revision petitioner became his tenant on a monthly rent of Rs.350, that he had let out a

portion of the property to respondents 2 to 4 without his consent in writing, that on 19.12.1987 he sent a notice to the revision petitioner taking

exception to this, that at that time one Selvaraj was running a barber shop in the property, that after he vacated the portion, it was let out to the

second respondent, that the revision petitioner had accepted in the reply to the notice that the property had been sub-let, that the said sub-tenants

were there even before the revision petitioner came to the property, that the first respondent gave permission to the revision petitioner to collect the

rent for respondents 2 to 4, that because of sub-letting the revision petitioner and respondents 2 to 4 were liable to be evicted.

The revision petitioner resisted the petition for eviction on the ground that the petition had been filed to harass and annoy him, that there was no

sub-letting by him to respondents 2 to 4, that even before the revision petitioner came to the property respondents 2 to 4 were already there as

tenants, that as the entire property was let out to the revision petitioner, the first respondent permitted the revision petitioner to collect the rent from

respondents 2 to 4, that even on 19.12.1987 when the notice was issued on behalf of the first respondent, the second respondent was already in

occupation of a portion of the property, that Selvaraj was not a tenant then, that it was not correct to say that at the time when the revision

petitioner came to the property the entire building was vacant, and that the petition was liable to be dismissed.

Respondents 2 to 4 filed counter contending inter alia that they were not sub-tenants, that they were in occupation of the property even prior to

the occupation by the revision petitioner, that the first respondent instructed these respondents to pay the rent to the revision petitioner, that it was

not true to say that at the time the petitioner came to occupy the property the entire building was vacant, that these respondents were doing

business in the petition property, that the revision petitioner had been paying the rent regularly, that he could not be asked to vacate at the whim

and fancy of the first respondent and the petition was not maintainable.

The learned Rent Controller framed the necessary points for determination as to whether there was sub-letting by the revision petitioner to

respondents 2 to 4 and found from the oral and documentary evidence that the case for eviction of the revision petitioner on the ground of sub-

letting had been made-out and ordered eviction.

Aggrieved, the revision petitioner filed R.C.A.No.53 of 1993 before the Appellate Authority, namely the Subordinate Judge, Tiruchi, who by his

order dated 23.7.1996 dismissed the appeal and confirmed the order of eviction passed by the Rent Controller. Aggrieved, the present Civil

Revision Petition has been filed.

It is contended by the learned counsel for the revision petitioner that the ingredients of sub-letting have not been made out in the instant case,

that! respondents 2 to 4 had been in occupation of the property from 1973, that the father of the first respondent had permitted the tenant to have

sub-tenants as early as in 1973 and also permitted him to collect the rent from the respective shops and that there is acquiescence and that the

theory of sub-tenancy had been invented only in the year, 1987 only for the purpose of evicting the revision petitioner. The learned counsel further

submitted that sub-tenancy was recognised by the first respondent and on this ground, the eviction petition ought to have been dismissed.

The provisions relating to sub-tenancy are very clear. Section 10(2)(ii)(1) of the Tamil Nadu Buildings (Lease and Rent Control Act (hereinafter

referred to as '' The Act'') provides that a landlord is entitled to seek the eviction of his tenant if the tenant has after the 23rd October, 1945

without the written consent of the landlord, transferred his right under the lease or sub-let the entire building or any portion thereof, if the lease does

not confer on him any right to do so. This is a case where sub-tenancy is admitted. When once sub-tenancy is admitted and a further case is set up,

that it was done with the consent of the owner, it must be established that the owner had given written consent to the tenant to sub-let. Admittedly,

there is nothing in writing relating to sub-tenancy. The agreement between the owner and the tenant is admittedly oral. Then, in view of the

provisions of the Rent Control Act, there can be no sub-tenancy spelt out in the instant case.

In Reethalammal v. K.Arumugam Pillai, 1978 (91) LW 231. Nainar Sundaram, J. (as the learned Judge then was), after an exhaustive

discussion of several authorities, formulated the following principles:

Consent by landlord for such sub-letting would provide a cover for the tenant. It may be express or implied provided it is in writing, sub-letting

done during the tenure of a lease under a previous landlord and without his written consent can be availed of by a subsequent purchaser from the

previous landlord to seek eviction of the tenant. Though in some decisions- acquiescence by the landlord was countenanced as a defence available

to the tenant, other decisions have discountenanced it, and they have held that there is no question of acquiescence or estoppel against the landlord

and that would practically be estoppel against the statute. In my view, the second line of decisions is in consonance with the language used in the

provisions of the Act. To repeat the dictum of Ramakrishnan, J. in T.S.O.Abdul Khader vs. C.H.Rao, 1964 (2) MLJ 288, ""any kind of

acquiescence by the landlord or estoppel by his conduct cannot be a substitute for the plain requirements of the - Statute about a written consent"".

A change of sub-tenant after the relevant date without the written consent of ''landlord'' will entail eviction.

When such is the position, I do not think the revision petitioner can successfully maintain that he had the consent from the landlord to sub-let.

The learned counsel for the revision petitioner referred to a number of decisions and in my view, they do not in any way help the case of the

revision petitioner. These decisions relate to the circumstances under which the case for sub-tenancy has to be accepted.

In S.C. Basappa Vs. Jumnadoss also known as Jumnadoss Manickchand, , Ramaprasada Rao, Chief Justice, observed that the sub-letting

cannot be a matter of surmise but such can only be the result of an actual investigation and adjudication and a resultant finding.

In M/s. Delhi Stationers and Printers Vs. Rajendra Kumar, , the Supreme Court observed that mere occupation by alleged sub-tenant is not

sufficient to infer either sub-tenancy or parting with possession of rented premisess by the tenant without permission of landlord.

In V.D.Murugesan v. V.Raj Mohammed, 1994 (2) L.W. 667, Govardhan, J. dealing with the question relating to sub-tenancy observed that

there must be pleading and proof that the alleged sub-tenant is in exclusive possession and the owner has no control over the petition mentioned

property, that to prove the sub-tenancy the right to occupy the premises must be in lieu of payment of some compensation or rent.

In S.K.Raffudin v. N.Yeswantha Rao, 1997 (2) L.W 66 dealing with sub-letting, S.S. Subramani, J. after referring to a number of decisions

observed that to make-out a case of sub- tenancy the basic ingredient is parting with possession and that the alleged sub-tenant must be in a

position to exclude others from interfering with his enjoyment of the building.

In P. Senniappan and others Vs. Kannammal and 2 others, , K.Govindarajan, J. observed that a tenant can be said to sublet premises to third

party only if tenant had permitted third party to occupy the premises and had divested himself completely of possession of premises or part thereof,

that is, there must be transfer of exclusive right to enjoy in favour of third party and in all these cases the initial burden to prove sub-tenancy is on

the landlord.

In M/s. Bharat Sales Ltd. Vs. Life Insurance Corporation of India, , the Supreme Court has observed that payment of rent, though an essential

element of lease or sub-lease could be in cash or in kind or might have been paid or promised to be paid and. that law does not require such

payment to be proved by affirmative evidence, but the Court can draw inference from facts of case proved at trial.

In my view, none of the above decisions will have application, to the facts of the present case, particularly when the revision petitioner himself

has admitted that respondents 2 to 4 are his sub-tenants, but they were so authorised by the first respondent. Having regard to the decision in

Reethalammal''s case, 1978 (91) LW 231 already referred to, and also express provision in the Act with regard to allegation of sub-tenancy, I

hold that there are absolutely no merits in the Civil Revision Petition and the same is dismissed. However, there will be no order as to costs.

Consequently, CMP No. 13213 of 1996 is also dismissed.

The learned counsel for the revision petitioner submitted that after the filing of the eviction petition, the first respondent has recognised

respondents 2 to 4 as his own tenants and is receiving rent from them direct and in these circumstances the first respondent could be directed to

show the same kind of indulgence to the revision petitioner and allow him to continue to occupy the property on payment of the rent due to the first

respondent.

This is entirely a matter between the revision petitioner and the first respondent and this Court cannot compel the first respondent to adopt such

a course.

The order of eviction passed by the authorities below having been confirmed, the revision petitioner will have six months time to quit and

deliver vacant possession subject to his filing an affidavit of undertaking with the usual default clause within a period of two weeks from today.