Malliga vs A.P. Kathija Beevi and Others

S.S. Subramani, J.—First respondent/tenant in R.C.O.P. No. 46 of 1988, on the file of Rent Controller, Tuticorin, is the revision petitioner.

Respondents herein filed the Eviction Petition against the petitioner on three grounds, namely, (1) wilful default in paying rent, (2) tenant has

committed acts of waste in the property so as to reduce the value and utility of the building and (3) that she has unauthorisedly sub-let the building

to the second counter petitioner named therein.

The only ground that survives for consideration in this Revision is, whether the tenant has unauthorisedly sub-let the building to the second

counter petitioner, who is not impleaded in this revision petition.

The other two grounds were found against the land-lords and they have become final.

Both the authorities below have held that the sub-lease alleged by the landlords is true, and that the same was without the written consent of the

landlords.

As against the said allegation, the revision petitioner contended that the second counter petitioner has no possession over any portion of the

building, and that he is also assisting her in her business.

The said explanation was found to be not true, by the authorities below.

The legality, propriety and regularity of the Order of the Authorities below is challenged in this Revision u/s 25 of the Rent Control Act, in this

revision petition.

Revision petitioner is doing business in jute sacks whereas the second counter petitioner is doing an entirely different business namely, salt

business. It is not disputed that in the salt business, petitioner has no control. There is also a name board placed in the schedule premises in the

name of the second counter-petitioner and it is also seen that he has got a telephone in his own name and the same is installed in the schedule

premises. This is a piece of evidence let in by the landlords to prove sub-letting. It is their case that when an independent business is conducted by

a stranger and he has also a telephone installed in his name, exclusive possession will have to be inferred.

Revision petitioner has no case that the second counter petitioner is not doing any business. But her case is only that she is having control over

the building and no exclusive possession has been given to the second counter-petitioner. When he is doing business of his own, an inference can

be drawn that for the purpose of business, he must have control over that area where the business is being conducted. Further, when a telephone is

installed, it could be presumed that he has got a permanent address in the schedule building. That means, he has got the right to exclude and include

others in the place where he is doing business. Unless he has got control over the premises, the telephone cannot be installed, for, he must have

permanent address in that building. A name board is also placed in the name of the second counter-petitioner. A mere denial by the petitioner will

not be sufficient to come to the conclusion that the second counter-petitioner has no exclusive possession. On the basis of the evidence adduced,

the authorities below have come to the conclusion that the second counter-petitioner must be in possession exclusively with right to exclude and

include others.

When the landlord has proved that a stranger is in possession and is doing business in the premises, it is for the tenant to substantiate the

circumstances under which the stranger came into occupation. Mere denial may not be sufficient. The arrangement between the tenant and the sub-

lessee is a secret arrangement and the details of the same can be spoken to only by them. Burden on the landlord is discharged when he proves

that a stranger is in exclusive possession at least in respect of a portion of the premises. The inference drawn by the authorities below that the

second counter-petitioner has exclusive possession, according to me, is the only conclusion that can be arrived at in the circumstances of the case.

In a similar case which arose under the Kerala Buildings (Lease and Rent Control) Act, the decision of which has been reported in H.V.

Mathai v. The Subordinate Judge, Kottayam and Ors. (1969) 1 S.C.W.R. 1193 a building was let out for lodging purpose. An Advocate took a

room on daily basis, installed a telephone in his name and also placed a name-board. Even though the rent was on daily basis, since the advocate

concerned was found to be in exclusive possession, their Lordships held that the same amounted to sub-lease, the main reason being installation of

a telephone and the placing of a name-board. In paragraph 5 of the judgment, it was held thus:

Lastly, Mr. Daphtary argued that on the facts the courts below should not have come to the conclusion that there was a sub-letting within the

mischief of the Act. The buildings were let out as a lodging house and the evidence showed that one of the rooms was in the occupation of a

lawyer who had been there for years and had put up his name board outside the room. Besides the name board of the lawyer, there were the name

boards of other persons and the lawyer paid rent on a daily basis. The lawyer had installed a telephone in his room. In our opinion, there was

sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case

of the grant of a licence. In any event, the finding as to sub-letting does not call for interference in this case seeing that the District Court and the

High Court both accepted the evidence as conclusive of sub-letting.

I do not find any merit in this civil revision petition and the same is, therefore, dismissed with costs.