Ramesh Malik (Deceased) Represented Through LRs And Others vs J.S. Sharma And Others

Sanjay Karol, J.

Concurrent findings of fact in favour of respondents-landlords (hereinafter referred to as landlord) are subject matter of present petition filed by the

petitioners-tenants (their successors-in-interest) (hereinafter referred to as the tenant).

The Rent Controller (3), Shimla, vide order dated 27.12.2001, passed in Case No.137/II of 96/91, titled as J.S. Sharma & others v. Ramesh Malik &

others, allowed the petition for ejectment filed, under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act),

holding (a) the tenanted premises to be unsafe and unfit for human habitation, (b) whole of the said premises required by the landlords for

reconstruction/rebuilding, (c) during subsistence of the tenancy, the tenants (petitioners No.1 to 5 in the Rent Petition) had sublet the premises in

favour of respondent No.6 Subhash Chand Sharma, without any consent, approval or authority of the landlord.

In appeal, preferred by the tenants, findings returned by the Rent Controller stand affirmed by the Appellate Authority(II), Shimla, vide judgment

dated 30.6.2006, passed in Rent Appeal No.15-S/13(b) of 05/04, titled as Ramesh Malik & others v. J.S. Sharma & others.

The demised premises constitute ground floor of the building, commonly known as ‘Jallu House, Eastern Portion, Tutikandi, Shimla-171004’.

As per the landlord, tenancy was with Ramesh Malik (deceased, now represented by LRs), Naresh Chand, Shakuntla Verma, Sarla Sehgal and S.

Suneja, on a monthly rental of Rs.10/-, including taxes for residential purpose, but however respondent No.6, being in exclusive possession thereof,

illegally and unauthorizedly, as a sub tenant, put it to use for commercial purpose, by running a Karyana shop.

The building in question, originally owned by Smt. Savitri Devi, was sold to the landlord, vide sale deed dated 24.3.1986. The existing structure

outlived its life and as such, the Municipal Authorities have declared it to be unsafe and unfit for human habitation.

On the other hand, the tenant pleaded rental to be Rs.125/- per month and the building fit for human habitation, with the factum of creation of sub-

tenancy refuted.

Based on the pleadings of the parties, the Rent Controller framed the following issues:

Whether the premises in question has become unsafe and unfit for human habitation as prayed? OPP

Whether the premises and building as a whole is required by the petitioner for its reconstruction as prayed? OPP

Whether the premises in question has been subleted to Sh. Subhash Chand Sharma by the respondent No.1 to 5 as prayed? OPP

Whether the respondents No.1 to 5 are in arrear of rent as prayed? OPR

Whether the petitioner have no locus standi to file the present petition as alleged? OPR

Whether there does not exists any relationship of landlord and tenant between the parties as alleged? OPR

Whether the petition is bad for misjoinder of the parties, as alleged? OPR

Relief.

Heard learned counsel for the parties.

Now what is the scope of such revisional jurisdiction and the extent of the power which the court can exercise is now well settled by a five-Judge

Bench of the apex Court reported in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78.

The findings can be summarized as under:

(i) The term ‘propriety’ would imply something which is legal and proper.

(ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that

of the appellate Authority.

(iii) Such power cannot be exercised as the cloak of an appeal in disguise.

(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.

(v) The expression “revision†is meant to convey the idea of much narrower expression than the one expressed by the expression “appealâ€.

The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not

wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao

Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246.

(vi). The meaning of the expression “legality and propriety†so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the

extent that exercise of the power is not confined to jurisdictional error alone and has to be “according to lawâ€​.

(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based

on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers

from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not

exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to

a finding contrary to the findings returned by the authority below.

(viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may

have a different view thereupon.

(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm

legal basis and not on a wrong premise of law.

(x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of

appeal.

(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different

conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.

(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence.

The Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control)

Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the apex Court in Rukmini

Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called

upon to decide the scope of the revisional jurisdiction and the expression “legality and propriety†provided in the relevant statues. The essential

question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. Finally the Court answered

the reference by making the following observations:-

“43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the

first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The

consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts

recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority

below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the

evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated

as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled

to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of

any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the

impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming

to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of

first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before

it suffers from procedural illegality or irregularity.â€​

In view of the aforesaid discussion the correctness, legality and propriety of the orders passed both by the Rent Controller and the Appellate

Authority are required to be examined.

It is not in dispute that today the superstructure of the tenanted premises stands completely demolished.

However, it is a settled principle of law that even after demolition of the superstructure, tenancy would continue, for it has not come on record that

land underneath the superstructure was not to be part thereof.

In T. Lakshmipathi & others v. P. Nithyananda Reddy & others, (2003) 5 SCC 150, the Apex Court observed that tenancy cannot be said to have

been determined by attracting applicability of the doctrine of frustration, consequent upon demolition of the tenanted premises. Further, doctrine of

frustration belongs to the realm of law of contracts; it does not apply to a transaction where not only a privity of contract but a privity of estate stands

created, inasmuch as lease is the transfer of an interest in immovable property within the meaning of S. 5 of the Transfer of Property Act, and that:

“24. We are, therefore, of the opinion that in the event of the tenancy having been created in respect of a building standing on the land, it is the

building and the land which are both components of subject matter of demise and the destruction of the building alone does not determine the tenancy

when the land which was site of the building continues to exist; more so when the building has been destroyed or demolished neither by the landlord

nor by an act of nature but solely by the act of the tenant or the person framing under him…………..â€​

In D. G. Gouse and Co. (Agents) (P) Ltd. v. State of Kerala, (1980) 2 SCC 410, while dealing with Entry 49 of List II of the Seventh Schedule of

the Constitution, making a reference to Oxford English Dictionary, the Apex Court held that the site of the building is a component part of the building

and therefore inheres in the concept of ordinary meaning of the expression 'building'. Referring to Corpn. of the City of Victoria v. Bishop of

Vancouve Island, AIR 1921 PC 240, it held that the word 'building' must receive its natural and ordinary meaning as “Including the fabric of which

it is composed, the ground upon which its walls stand and the ground embraced within those walls"".

Further, the Apex Court in Shaha Ratansi Khimji & sons v. Kumbhar Sons Hotel Private Limited & others, (2014) 14 SCC 1 and T. Lakshmipathi

v. R. Nithyananda Reddy, (2003) 5 SCC 150, observed that when there is a lease of a house or a shop it cannot be treated as a lease of structure but

also a lease of site. In fact, view taken in Vannattankandy Ibrayi v. Kunhabdulla Hajee, (2001) 1 SCC 564, stood overruled.

A perusal of testimony of landlord Shri J.S. Sharma (PW-3) as also other witnesses, clearly establishes the factum of the demised premises being

(a) old, unsafe and unfit for human habitation, (b) the landlord having applied for reconstruction of the building, and (c) the landlord having sufficient

means to reconstruct the same. Significantly, notice dated 23.9.1991 (Ex.P-1), issued by the Municipal Corporation, Shimla, stands proved, so also

sanction of the building plan (Ex.P-4) and letter of extension (Ex.P-5).

Shri R.P. Saxena (PW-2), an expert witness, has testified with regard to the building being unsafe and unfit for human habitation.

Well, on this issue, there cannot be much dispute, for the superstructure already stands crumbled.

It is a settled principle of law that if the landlord were to prove the factum of the building being old, requiring the same to be reconstructed, the

Courts would pass necessary orders in that regard. {Rajbir Kaur v. S. Chokesiri and Co., (1989) 1 SCC 19; and S. Venugopal v. A. Karruppusami &

another, (2006) 4 SCC 507}.

It is also a settled principle of law that prior sanction of building plan is not a ground for non-suiting the landlord, who otherwise satisfies the

ingredients of provisions of the statute, entitling the landlord for ejectment of the tenant on the ground of building requiring reconstruction. {Hari Dass

Sharma v. Vikas Sood & others, (2013) 5 SCC 243}.

Thus, findings returned by the Courts below, on the question of the landlord bonafidely requiring the premises for reconstruction and rebuilding,

stand duly established and do not require any interference.

What further needs to be examined is as to whether findings returned by the Courts below, on the question of subletting, warrant interference or

not.

It is a settled principle of law that the tenant’s liability for being evicted, arises, once the factum of unlawful subletting is proved. What is

important is that as on the date of notice, not the passing of an order, if it stands established that there was unlawful subletting, the tenant is liable to be

evicted. {Gajanan Dattatraya v. Sherbanu Hosang Patel & others, (1975) 2 SCC 668}.

Also, that in order to succeed on the ground of subletting, landlord must prove that the tenant has parted with the exclusive possession of the

premises and that the same is exclusive with the sub-tenant, to the ouster of the landlord. {Dev Kumar (Died) through LRs v. Swaran Lata (Smt.),

1996 (1) SCC 25; and Mohan Lal Sood & others v. Vinod Dogra & others, 2009 (2) Shim.LC 42}.

Further, whether the tenant has parted with the possession of the premises or not is a question of fact to be arrived at on reasonable appreciation

of the evidence led by the parties. {Sohan Singh v. Bachan Singh, 2005(2) RCR 695}.

It is also a settled principle of law that absence of a specific pleading, ipso facto cannot be a ground for setting aside findings, concurrent in nature,

more so in a petition under Article 227 of the Constitution of India, where the material otherwise justifies the findings to be reasonable. {Virendra

Kashinath Ravat & another v. Vinayak N. Joshi & others, (1999) 1 SCC 47}. Hence, objection of absence of pleadings, on this issue, at this stage,

only merits rejection.

In Bharat Sales Ltd. v. Life Insurance Corporation of India, (1998) 3 SCC 1, the Apex Court, has observed that “Sub-tenancy or sub-letting

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 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 sub-let 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

sub-let 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 require 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 sub-let.â€​

The Apex Court in Rajbir Kaur v. S. Chokesiri and Co., (1989) 1 SCC 19, has observed that:

….. If exclusive possession is established, and the version of the respondent as to the particulars 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 licences

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. The burden of establishing facts and

contentions which support the party's case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to

establish these to the appropriate standard, he will lose.

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 circumstances of the case, we think, that,

appellants have 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. There is no explanation forthcoming from the respondent appropriate to the situation as found.â€​

The aforesaid observations stand reiterated by the Apex Court in Nihal Chand Rameshwar Dass & another v. Vinod Rastogi & others, (1994) 4

SCC 325.

Thus, the principles culled out by the Apex Court on the issue of subletting, as laid down in Celina Coelho Pereira (Ms) and others v. Ulhas

Mahabaleshwar Kholkar & others, (2010) 1 SCC 217, are as under:

(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with

possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession

has been done without the consent of the landlord and in lieu of compensation or rent.

(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such

partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to

find out the real nature of transaction entered into by the tenant.

(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the

landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting

or parting with possession in tenancy premises by the tenant in favour of a third person.

(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with

partners, the tenant may not be said to have parted with possession.

(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that

tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he

(tenant) continues to hold legal possession in tenancy premises.

(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was

in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

Having perused the evidence, this Court is of the considered view that even though the Rent Controller cursorily dealt this issue, by returning its

findings in Para- 7 of the order, but however, the lower Appellate Court fully examined the evidence and after detailed discussion, concurred with the

conclusion arrived by the Rent Controller.

From the ocular version of landlord (PW-3), it is clear that tenancy was not created by instant landlords, but by the erstwhile owners, from whom

they bought the property in the year 1986. At that time, there were several tenants. The landlord filed ejectment petitions against all the tenants, and

during pendency thereof, all, except the instant tenants, handed over possession of their respective portion of the premises.

Also this witness states that tenants (petitioners No.1 to 5) are permanently residing in Delhi and have nothing to do with Shimla town. This

significantly stands unrebutted. Further, the demised premises were sub-let to Subhash Chand Sharma (respondent No.6), without any permission of

the landlord. This was so done in the year 1990 for a consideration of Rs.12,000/-. The sub-tenant exclusively occupied the premises from the year

1990 till 1995, when the possession delivered back to the tenants.

Perusal of cross-examination part of testimony of this witness reveals him to have admitted not only to have remembered the month in which the

premises were handed over to the sub-tenant or when an amount of Rs.12,000/- was paid. But then, this alone would not impeach the credit of his

testimony.

From perusal of testimony of the tenants, on whose behalf Shri Ramesh Malik (RW- 1) deposed, it is clear that sub-tenant Subhash was, for

whatever reason, occupying the premises. Close scrutiny of his testimony further reveals that the tenants have not come out with the truth and

revealed/disclosed relevant facts and material in their possession and to their knowledge.

In the examination-in-chief part of his testimony, this witness (RW-1) states that they are running the shop and Subhash has no connection with it.

In the cross-examination part, he clarifies that it was his brother Naresh Malik who had employed Subhash as a servant for 5-6 months and that the

latter had left as he was complaining of the stones falling from the upper storey. But then, this witness contradicts by stating that Subhash had actually

worked for him for 3-4 months. Significantly he does not state that it was for his brother. However, what is crucial is that the witness admits to have

maintained accounts of the shop. But then, they did not produce the same in the Court, for establishing the exact status of Subhash. The easiest way

of proving true relationship of Subhash was production of salary receipt or books of accounts establishing the factum of his employment. This was not

so done. On this count, adverse inference can be drawn against the tenants (Section 114 of Indian Evidence Act, 1872).

Testimony of the landlord is corroborated by Deep Ram Sharma (PW-4), from whose testimony also it is apparent that the Karyana shop was

being run by Subhash.

In this backdrop, this Court is of the considered view that testimony of landlord (PW-3) cannot be said to have been shattered, in any manner, or

its veracity beseeched, rendering his statement to be false, incorrect or not worthy of credence. Factum of Subhash being in exclusive possession,

without consent of the landlords, for a period of five years, thus, stands established on record, more so, keeping in view the law laid down in Rajbir

Kaur (supra) and other decisions noticed hereinbefore.

Under these circumstances, findings returned by the Courts below cannot be said to be perverse, in view of law laid down by the Apex Court in

Dilbahar Singh (supra), warranting any interference. In view of the above discussion, present petition, being without merit, is dismissed. Pending

application(s), if any, also stands disposed of.