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Judgment
C.L. Pangarkar, J.—This writ petition is filed against the two orders passed by the Rent Controller, which were confirmed by the Tribunal. The respondent had applied for eviction of the petitioner on the ground that the petitioner has sublet the premises. The learned Rent Controller recorded evidence in the matter and found that the premises have been sublet by the petitioner. The petitioner preferred an appeal before the Tribunal and the Tribunal also concurred with the findings recorded by the Rent Controller.
The petitioner feels aggrieved by the findings recorded by both the Courts below.
I have heard the learned Counsel for the petitioner and the respondent Caveator. The foremost contention that was raised by the learned Counsel for the petitioner, was that there was no pleading in fact of subletting. He had taken me through the application filed before the Rent Controller particularly paras 6 and 7 of the petition. He submits that even after going through these two paras, it will be clear that there is no pleadings whatsoever of subletting i.e. of delivery of exclusive possession by the petitioner to the sub tenant. After having gone through the said pleadings, I find that in para 6 it is clear that the respondent had contended that since the month of August, September,1991 the petitioner is not found in the premises and it is the respondent No.2 in Eviction Appeal No.26/08 / respondent No.4 in this petition, who was found in the premises. In para. 7, it is further mentioned that these premises have been sublet and transferred in favour of the respondent No.2/ respondent No.4. The petition certainly discloses that as to on which ground the respondent Landlord wanted to evict the petitioner tenant. Further it is clear from the fact mentioned in the written statement. The petitioner pleads that the respondent No.2/ respondent No.4 is an employee of the petitioner and is a mechanic. The fact that the respondent No.1 states that the petitioner pleads in the petition that the respondent No.2/ respondent No.4 is his employee and is a mechanic, clearly suggests that the petitioner was aware that he has to meet the case of subletting, else he would not have pleaded as to the status of the respondent No.2/ respondent No.4. In the circumstances, I find that the Courts below, have rightly found that there was a pleading and the parties went to trial knowing what case they have to prove or disprove.
The learned Counsel submits that there is no evidence whatsoever of delivery of exclusive possession by the petitioner to the respondent No.2/ respondent No.4, who is the alleged sub-tenant. He submits that the Courts below, have fallen in error in relying upon the two documents namely the bill in the name of Hanuman Garage and second postal acknowledgment. He submits that if the two documents are completely ignored, then, there is no evidence whatsoever of the respondent No.2/ respondent No.4 being in exclusive possession and the petitioner having surrendered the possession to the respondent No.2/ respondent No.4. In this context, it has to be borne in mind that the present petitioner admits clearly that he has shifted his own business to the area known as Campal. It is, in this context, rest of the evidence has to be appreciated. It must be borne in mind that the petitioner submits that the respondent No.2/respondent No.4 is his employee. In order to prove this, the petitioner had produced certain documents before the Court i.e. wage register etc. The Courts below, have considered these documents i.e. wage register and other documents and have clearly found that these documents are unreliable and no person from the inspection of wages office, was examined to show that such documents were genuine. For that purpose, the learned authorities below, have considered the evidence in respect of these documents and even the oral evidence. It is found by the learned Rent Controller that the statement given by the petitioner on oath that the respondent No.2/ respondent No.4 was his employee, cannot in any case, be accepted since the petitioner had stated in the evidence that he was paying Rs.1500/-per month to the respondent No.2/ respondent No.4, who was his employee in the year 1970. The learned Rent Controller has found that this cannot just be accepted that a mechanic can be paid wages of Rs.1500/-in the year 1970. Further the respondent No.2/ respondent No.4 in his evidence stated that he has been receiving Rs.1200/-towards wages. It is contrary to what is stated by the petitioner on oath. All these aspects have been considered and I do not find any perversity in the appreciation of this oral evidence. Since it is the case of the petitioner that the respondent No.2/ respondent No.4 was a mechanic and is his employee and the Courts below, have after consideration of this evidence, found that he is not employee of this petitioner, the very basis of the defence, falls on the ground.
The learned Lower Courts have considered one bill, which is said to have issued in the name of the Hanuman Garage. Mr. Diniz, the Counsel for the petitioner, submits that the said bill could not have been considered in evidence because of the fact that the said document has not at all been proved by the landlord respondent No.1 in Eviction Appeal No.26/2008/respondent No.3 in this petition. He submits that the respondent No.2/ respondent No.4 has clearly stated that it is not a bill issued by him. The respondent No.2/ respondent No.4 however, admits in the cross-examination that he has got printed the bill in the name of the Hanuman Garage. According to Mr. Diniz, the bill, however, is in the name of Hanuman Garage Shiva and Shiva. Mr. Diniz''s statement that the respondent No.2/ respondent No.4 says that this is not respondent No.2''s bill. But the evidence has been appreciated by the Courts below in the context of the fact that the respondent No.2/ respondent No.4 has admitted in the evidence that he has got printed the bill in the name of Hanuman Garage. The Courts are always to appreciate the evidence on the basis of probability. There is no reason for the landlord to get a single bill printed and produce it before the Court. Ultimately the Court goes upon probability and if the Court went on the probability while appreciating the evidence, such appreciation cannot, in any way, be said to be perverse.
The next document that was relied upon by the Courts below is the postal acknowledgment, which is signed by the respondent No.2/ respondent No.4 admittedly. This document, according to Mr. Diniz, should not have been relied upon to hold that the respondent No.2/ respondent No.4 exclusively carries on business there. The fact is that the said letter was sent by the Govt. Dental College to the respondent No.2/ respondent No.4, which has been received by the respondent No.2/ respondent No.4 on the suit address. Shri Diniz further states that the acknowledgment card has been sent on the address of shop No.2 and not on the address of shop No.3. This hardly makes any difference. The address is given as Savitri Niwas. Shop Nos. 2 and 3 both are located in the Savitri Niwas. The respondent No.2/ respondent No.4 does not dispute of receiving the said letter sent by the Dental College. It is more probable that the address which is the address of the suit premises, must have been furnished by the respondent No.2/ respondent No.4 since no other person can in fact furnish the said address to the Dental College. The fact that the respondent No.2/ respondent No.4 received the letter on such address and he furnished that address, clearly suggests that the respondent No.2/ respondent No.4 is in occupation of the premises.
The learned Counsel for the petitioner, had placed before me three decisions in Dipak Banerjee Vs. Lilabati Chakraborty, , Kala and Another Vs. Madho Parshad Vaidya, and Resham Singh Vs. Raghbir Singh and Another, .
In Dipak Banerjee Vs. Lilabati Chakraborty, , the Supreme Court has observed that for proving the case of sub-tenancy, delivery of exclusive possession, has to be proved. The said proposition cannot at all be disputed. On facts, the Courts have found that the respondent No.2/ respondent No.4 is in exclusive possession of the suit premises.
The next decision that was cited is Kala and Another Vs. Madho Parshad Vaidya, wherein the Supreme Court has laid down same proposition. It was contended by Shri Diniz that in the instant case, there is no evidence that the exclusive possession is with the respondent No.2/ respondent No.4. The Courts below have already appreciated the evidence and found that exclusive possession has been delivered to the respondent No.2/ respondent No.4 and the petitioner is carrying out business elsewhere.
Yet another decision that was cited before me, is in Resham Singh Vs. Raghbir Singh and Another, . It has been held by the Supreme Court in the said decision that the question of subletting is a conclusion on question of law derived from the findings on materials on record as to transfer of exclusive possession and as to the said transfer of possession being for consideration. In the instant case, the Courts have concurrently found that the exclusive possession has been handed over and in view of this, this ruling has no bearing on the case at hand. I do not find any perversity in the appreciation of evidence at all.
The next decision that is cited before me, is in Mahendra Saree Emporium Vs. G.V. Srinivasa Murthy, wherein it is observed that the burden of proving of subletting, always lies on the landlord. This proposition too, cannot be disputed. But in the instant case, the Courts have concurrently held that subletting has been done and such subletting has been proved by the landlord. In view of this, this ruling too, has no bearing on the case at hand. I do not find any substance in the writ petition it is dismissed in limine. The petitioner''s Counsel submits that this order be stayed for a period of four weeks. The eviction order should not be executed for a period of four weeks.