Suresh Chander and another vs Bajrang Lal and another

V.S. Aggarwal, J.—The present revision petition has been filed by Suresh Chander and Anr. (hereinafter described as the Petitioners) directed against the order passed by the learned Rent Controller. Bhiwani dated 6.1.1997 and of the Appellate Authority, Bhiwani dated 11.11.1999. The learned Rent Controller had passed an order of eviction against the Petitioners which was upheld by the Appellate Authority.

The relevant facts are that the Respondents-landlord filed a petition for eviction asserting that property in question had been let to Petitioner No. 1 Suresh Chander in 1983. The sole ground of eviction which survives for consideration was as to if Petitioner No. 1 has sublet the premises to the other Petitioner. It was asserted that Petitioner No. 1 had sublet the same to Satbir and Kuldip because Petitioner No. 1 has joined service with Food and Civil Supplies Department. The Petitioners had contested the eviction petition. It was denied that the property in question had been sublet. Plea offered was that Petitioners are brothers, they constitute a joint Hindu family. Petitioner No. 2 only sits in the shop on behalf of Petitioner No. 1. In this process, it was denied that any terms of the tenancy has been violated.

The learned Rent Controller had framed the issues and on appraisal of the evidence held that property was sublet by Petitioner No. 1 to Petitioner No. 2. The said findings of the learned Rent Controller found favour with the learned Appellate Authority. Hence, the present revision petition.

Certain basic facts which are not in controversy can well be re-stated for purposes of the present revision petition. The property in question had been let for purposes of selling Pan, Birri and Cold Drinks vide rent note in 1982. The said property was let to Petitioner No. 1. Petitioner No. 1 has joined service in Food and Civil Supplies Department.

Learned Counsel for the Petitioners urged that Petitioner No. 1 still sits and works in the shop. It is a joint family and, therefore, there is no parting with the legal possession particularly when both the Petitioners are brothers. On the contrary, on behalf of the Respondents it had been contended vehemently that in the written statement, it has been urged that it is a joint family. Through in evidence it has been stated that property was taken jointly on rent and these facts clearly show that it is a case of subletting of the premises.

There is not much controversy with the proposition of law that if one brother is the tenant and other joins him in the business, ordinarily the Court will not presume subsetting. Some thing more has to be established to rebut the said presumption. Reference with advantage can well be made to the decision of this Court in the case of Syed Feroze Ali Shah v. Syed Jamil Ali Shah and Anr. 1980 (2) RLR 549. The question for consideration was in the facts that where the brother was permitted to use the premises whether it would amount to subletting. The Supreme Court in the case of M/s Delhi Stationers and Printers v. Rajendra Kumar, 1990 (1) RLR 667 was dealing with a situation under the Rajasthan Premises(Control of Rent and Eviction) Act, 1950. It was held that unless it is shown that there is a transfer of the right, the inferences of subletting cannot be drawn. The third person was the brother-in-law of the tenant. In the peculiar facts, it was held that it is not subletting of the premises.

The decision most relied upon was that in the case of Rajinder Parshad and Anr. v. Parveen Kumar, 1992 (2) RCR 150. Herein the shop was taken on rent by the son for selling vegetables and fruits. The son joined service. The father continued business in the premises. They were living together. It was held that it will not amount to subletting. It is the case of Rajinder Parshad (supra) which was strongly relied upon to urge that there is no evidence of parting with the legal possession. If that was so, indeed the ratio of the said decision would certainty apply. But as one scans through the evidence, the position that emerges is to the contrary. Though in the written statement, it was pointed that the brother has no connection in the tenancy rights and that it was a joint business but in evidence it was stated that both the brothers had taken the property jointly. In cross-examination it was added that in the rent note only one brother (Petitioner No. 1) signed and not the other. The logical conclusion, therefore, would be that even Petitioner No. 2 was stated to have taken the property on rem. Once such a right is set up during the course of evidence, the cat is out of the bag. In these circumstances, the obvious conclusion would be that the findings arrived at by the learned Rent Controller and the Appellate Authority require no interference. It is the peculiar facts of the present case which prompts this Court to conclude that it would be a case of subletting.

For these reasons, the revision petition being without merits must fail and is dismissed. The Petitioners are granted three months to vacate the promises.