Smt. Ram Asri vs Jai Chand and another

J.V. Gupta, J.—This is landlady''s petition whose ejectment application has been dismissed by both the authorities below.

Shrimati Ram Asri, landlady, sought the ejectment of her tenant Jai Chand from the shop in dispute on the ground that the tenant had sublet a portion of the same to Messrs Mam Chand Kirpa Dayal. Earlier. Jai Chand had sublet a portion of the shop in dispute to certain other persons as well. Since the subtenancy was ciecued(sic) without the written content of the landlady, hence, she was entitled to eject her tenant. Both the Respondents contested the application by filing separate written statements. Jai Chand admitted the tenancy, but denied hit liability to pay house-tax and water-tax. He denied the sub-tenancy. He pleaded that in January, 1975 Kirpa Dayal, his maternal uncle was allowed to place some cement bags in the back portion of the shop for 4/5 days; whereas he himself remained in exclusive possession of the entire shop. He also denied that he had sublet the tenancy premises to Piare Lal Shiv Kumar. The learned Rent Controller found that the landlady had failed to prove that Jai Chand tenant ever sublet any portion of the shop in dispute to Respondent No. 2 or to any other person. As a result of this finding, the ejectment application was dismissed. In appeal, the learned Appellate Authority affirmed the said findings of the Rent Controller and thus maintained the order rejecting the application. Dissatisfied with the same, the landlady has filed this revision in this Court.

The Learned Counsel for the Petitioner contended that after having found that Jai Chand had allowed the goods of Amrik Singh or Shiv Kumar in the hind portion of the shop in dispute and further finding that though he may have accepted some amount in cash towards rent or compensation, the sub-tenancy was not proved it wrong. According to the Learned Counsel, it has been wrongly found that the tenant did not part with possession of hind portion of the shop in dispute According to the Learned Counsel, if Jai Chand tenant allowed the hind portion to be occupied by others, the mere fact that he allowed to pass from the portion of the shop in his occupation did not mean that he did not part with possession of the hind portion. This finding, according to the Learned Counsel, was not warranted from the facts of the case. It was also argued that even if a portion of the demised shop is sublet, the tenant is liable to ejectment. On the other hand, the Learned Counsel for Jai Chand tenant submitted that Kirpa Dayal was his real maternal uncle and if for 4/5 days, the tenant allowed him to keep the goods in the hind portion of the shop, it did not amount to subletting in any manner. According to the Learned Counsel, at the most it was a case of a more licencee and not a lessee, as the tenant never parted with exclusive possession or any portion of the demised premises in favour of the alleged sub-tenants. In support of his contention he has referred to Dev Dutt Verma v. Ajit Singh 1965 Cur. L.J. 341, Smt. Shanti Devi v. Puran Chand 1975 R.C.J. 651, and Smt. Parkash Wanti v. Rattan Lai Jain 1976 R.C.J. 87,

It was held in Dev Dutt Verma''s case (supra) that the main basic test to be applied is, whether the arrangement arrived at between the parties creates an interest in the property or not. If it creates an interest in the property, it would be a sub-lease; if it does not, it would be a mere licence. In any case, unless it is established by the evidence that the transferee obtained exclusive possession no sublease can be said to have come into existence. Similar observations were made in Smt. Shanti Devi''s case (supra) that the real test to determine sub-letting is whether the tenant has walked out of the demissed premises and has handed over its exclusive possession and control to the sub-tenant. According to the findings of both the authorities below. Jai Chand tenant never parted with exclusive possession of the shop in question in favour of the alleged sub-tenant. Primarily it is a finding of fact and therefore, could not be interfered with in the revisional jurisdiction of this Court. Even if two views are possible, it is no ground for interference in revision petition. In this view of the matter, the revision petition fails and is dismissed with no order as to costs.