Prakashmal Jain and another vs Balusamy and Suresh and others

Abdul Hadi, J.—Despite the vehement arguments of learned Counsel for the petitioners, I am unable to see any reason to interfere, in this

Civil Revision Petition under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ''the Act'') with

the concurrent eviction order passed by both the Authorities below (under Sec.10(2)(ii)(a) of the Act, on the ground of sub-letting by the 1st

petitioner, against the petitioners and respondents 2 to 5 herein, in R.C.O.P. No. 197 of 1986 on the file of the Rent Controller (District Munsif),

Coimbatore, filed by the 1st respondent-landlord herein. Before me, there is no dispute that the 1st petitioner herein is the tenant of the building in

question under the 1st respondent herein under Ex.P5 lease deed dated 2-1-1974 and that despite Exs.R1 and R2-rental receipts being in favour

of ""P.J. Textiles"", the Appellate Authority has found as follows;-

The only question to be decided in this Civil Revision Petition, is, whether the finding of the Authorities below that there is sub-letting under the

above said Sec.10(2)(ii)(a) by the 1st petitioner herein in favour of the firm by name Amardeep Textiles. In this regard, first of all, it must be

pointed out that the Appellate Authority finds thus:-

No doubt, Ex.R11 Partnership deed dated 29-6-1985 relating to the abovesaid Amardeep Textiles, shows that the 1st petitioner is a partner

under it, while the other partner is the 2nd petitioner herein, who is the 6th respondent in the R.C.O.P. The R.C.O.P. was presented in July 1986.

3(A). In the said circumstances, initially it was argued, that in view of the fact that the 1st petitioner is a partner in Ex.R11 partnership, there is no

sub-letting. But, as also pointed out by both the Authorities below, the ruling by a Division Bench of this Court in K.M. Mohammed Yusuf Zulaika

Urnma and others v. P.A. Abdul Khader (died) and another (AIR 1980 Madras 143 (DB) is directly against the abovesaid initial argument of

learned Counsel for the petitioners. The ruling is, sub-letting need not subsist during the disposal of the eviction petition and all that is required

under Sec.10(2)(ii)(a) is that the tenant should have sub-let the premises without the written consent of the landlord, that once the said requirement

is satisfied, the tenant forfeits his protection and becomes liable to be evicted and that the statute does not impose a further condition that the sub-

letting must be continuing throughout the entire course of the eviction petition.

One other argument of learned counsel for the petitioners is that the above said Amardeep Textile business is only that of the Joint Hindu family

consisting of the members of the family, which includes the petitioner herein. This argument cannot be accepted at all in the light of the partnership

deeds of the said Amardeep Textiles as shown by (1) partnership deed-Ex.P.10 = (Ex.P.2) dated 14-5-1980, (2) Ex.P.1 partnership deed dated

20-11-1982, the partners therein being respondents 3 to 6 in the R.C.O.P., who are respectively respondents 3,4, and 5 herein and the 2nd

petitioner herein and (3) the above referred to Ex.R.11 partnership deed itself. It must also be noted that these partnership deeds had to be

summoned by the 1st respondent-landlord from the income tax Officer, who was dealing with the assessment of the abovesaid Amardeep Textiles

to contradict the contention of the tenant that the business of Amardeep Textiles was only that of the Hindu undivided family. In fact, Ex.R.11

shows that the said partnership thereunder has come into effect from 1-6-1985 itself and that prior to the said date, the second petitioner herein

was carrying on the said business ""as sole proprietary concern"" in the building in question.

4(A). Learned Counsel for the petitioner also argues that the necessary ingredients of sub-letting has not been proved in the present case. In this

connection, he relied on M/s. Delhi Stationers and Printers Vs. Rajendra Kumar, Smt. Laxmi alias Anandi and others and C. Setharama Nagarkar

Vs. C. Setharama Nagarkar and others and Smt. Lakshmidevi alias Anandi and others, Sree Venkateswara Varukadalai Mills rep. by its Partner

v. Vijayalakshmi ((1991) II M.L.J. 156) and Dipak Banerjee Vs. Lilabati Chakraborty, No doubt in AIR 1990 SC 1208 (supra) it has been held

as follows:-

Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of

some compensation or rent.

In (1991) II M.L.J. 156 (supra) also/relying on the said Supreme Court decision, it has been pointed out that if a tenant had permitted a third party

to use the premises along with him while the tenant retains legal possession, it will not amount to sub-letting. Further in AIR 1987 SC 1055 (supra)

also, it has been pointed but that in order to prove sub-tenancy, two ingredients have to be established; Firstly, the sub-tenant must have exclusive

right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some

compensation or rent.

But, in the present case, in so far as the above said first of the two requirements, it has already been seen that the Appellate Authority has found

that R.W.1, the 1st petitioner-tenant has admitted that the abovesaid Amardeep Textiles was carrying on textile business in the petition- premises.

Further, there is no plea 6r evidence that despite the abovesaid fact, the 1st petitioner-tenant is retaining possession of the petition-premises. In the

circumstances, it is clear that the 1st petitioner has completely divested himself of the possession of the premises and parted with it to the said

Amardeep Textiles. Therefore, there could be no dispute that the first of the abovesaid requirements is satisfied.

Regarding the second of the abovesaid requirements, viz., that the above said parting with possession by the 1st petitioner-tenant to the sub-

tenant Amardeep Textiles is in lieu of payment of some compensation or rent, learned Counsel for the petitioners submits that there is no plea or

evidence to this effect in the present case. But, it must be pointed out that in paragraph 4 of the R.C.O.P., there is the following plea:-

Now it is the respondents 2 to 6 (i.e. including Amardeep Textiles) who are running the business in the premises by a secret arrangement between

the 1st respondent (1st petitioner herein) and themselves. The 1st respondent obtains huge monetary benefits thereby."" (Bracketed portion alone is

mine, inserted as explanatorily).

No doubt, this allegation has been denied in the counter statement to the R.C.O.P. thus:-

The further allegation....that the respondents 2 to 6 are running the business by a secret arrangement between the respondents 1 and 6 and by

themselves and that the 1st respondent obtained huge monetary benefit thereby are all false and not true.

Further, no doubt, when P.W.1, the father of the 1st petitioner herein was examined, he did not say in chief- examination anything about the above

referred to receipt of huge monetary benefits. Further, even in cross-examination he deposed only thus:-

Yet, with all these, the abovesaid submission of learned counsel for the petitioners cannot be accepted in view of the following observation of

the Supreme Court in Rajbir Kaur v. S. Chokesiri and Co. ((1989) 1 SCC 19 @ 43) and the other relevant features in the present case. The said

observation is as follows:-

The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive

possession was prompted by monetary consideration could be drawn or not.... If exclusive possession is established, and the version of the

respondent as to the particular and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may

not be impermissible for the Court to draw an inference that the transaction was entered into with monetary, consideration in mind. It is open to the

respondent to rebut this. Such transactions of subletting in the guise of licence are in their very nature, clandestine arrangements between the tenant

and the subtenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of

subletting is, of course, on the appellants.... Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden

which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the

circumstance of the case, we think, that, appellants having been forced by the courts below to have established exclusive possession of the ice-

cream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the Courts

below to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of

human conduct, that the transaction must have been entered into for monetary considerations.

(Emphasis supplied)

The other features of the present case mentioned above are as follows:-

Even though according to the abovesaid Supreme Court decision, the burden of proof in the present case shifts to the 1st petitioner-tenant to

prove that no monetary consideration passed from the abovesaid Amardeep Textiles to the 1st petitioner-tenant, in lieu of the former taking

possession of the premises in question for carrying on its textile business in the said premises, the 1st petitioner herein or the other respondents, in

the R.C.O.P. have not chosen to produce their relevant account books to show that no such monetary consideration passed. In fact, learned

Counsel for the landlord points out that even for the above referred to partnership deeds, it is the landlord who has to summon them from the

income tax Department to show that the business in question was not that of any family, but that of only a partnership. In the circumstances, the 1st

petitioner could have very well produced his relevant account books to show that there was no passing of monetary consideration. But, that has

not been done. Further, R.W.1 has deposed thus:-

So also, when, the Amardeep Textiles was continuously in possession of the premises, carrying on business therein for more than a decade, it can

easily be inferred that the possession thereof is for monetary consideration. Further, nowhere in his deposition, R.W.1 says that the abovesaid

Amardeep Textiles was allowed to remain in possession of the said premises and to carry on its business, without payment of any consideration to

the 1st petitioner-tenant of the said premises. I may also point out that Rajbir Kaur and Another Vs. S. Chokesiri and Co., has been followed in

Nihal Chand Rameshwar Dass and Another Vs. Vinod Rastogi and Others, also, reiterating the observations of the Supreme Court in the earlier

decisions.

In the result, the Civil Revision Petition is dismissed. No costs. Consequently, C.M.P. No. 829 of 1996 is also dismissed.