Ajit Singh v. Naresh Chand Gupta — 1980 DIGILAW 969 (ALL)

JUDGMENT V.K. Mehrotra, J. - This is a defendant's second appeal against whom a decree for ejectment passed by the trial court was upheld by the lower appellate Court. 2. Plaintiff-respondent Naresh Chand Gupta is the owner of the house in suit in which appellant Ajit Singh is a tenant. The plaintiff sought the judgement of the appellant from the house on the ground that the appellant was in arrears of rent which he failed to pay in spite of service of a notice of demand within the time allowed by law; that the appellant had materially altered the accommodation let out to him and that he had sublet it to defendant-respondents Jai Prakash and Sewa Ram without the consent in writing of the plaintiff. After terminating the tenancy of the appellant by a notice under Section 106 of the Transfer of Property Act, the plaintiff filed the suit out of which the present Second Appeal arises. 3. The plea that the appellant took in defence was that he was not in arrears as alleged nor had he materially altered the accommodation. It also was (the plea) that the premises in suit had not been sublet as alleged by the plaintiff. 4. Various issues were framed by the trial court. Issue No. 2 was "whether the defendant has sublet the accommodation in suit ? If so, its effect ?" On this issue, the trial court found in favour of the plaintiff. In regard to the claim for the ejectment of the appellant from the premises in suit on the ground of default and on the ground of having materially altered the accommodation in suit, the trial court found in favour of the appellant and against the plaintiff. In view of its conclusion on Issue No. 2, the trial court decreed the suit for the ejectment of the appellant from the house. The defendant appealed. 5. The lower appellate Court posed as the first question arising for decision in the case to be as to whether the appellant had sublet the accommodation in question. It found in favour of the plaintiff on this question. In respect of the other two grounds on which the plaintiff was seeking ejectment of the appellant, the lower appellate Court like the trial court, found in favour of the appellant. It found in favour of the plaintiff on this question. In respect of the other two grounds on which the plaintiff was seeking ejectment of the appellant, the lower appellate Court like the trial court, found in favour of the appellant. It upheld the decree passed by the trial court in view of its conclusion on the first question posed by it. Aggrieved, the defendant has come up in this Court in the present Second Appeal. 6. The conclusion of the two courts below, as noticed above, is that the appellant had sublet the accommodation in question to the defendant-respondents. This conclusion, as is clear from a perusal of the judgment of the court below is based upon the finding that the appellant was not in possession of the house in dispute and that the house was in possession of the defendants-respondents. The said respondents, according to the conclusion of the courts below, were not found to be in possession on behalf of the appellant. 7. In Smt. Krishnawati v. Shri Hans Raj ( AIR 1974 SC 280 ), it was observed by the Supreme Court that "subletting was, therefore, the principal ground on which eviction was sought. When eviction is sought on that ground it is now settled law that the onus to prove subletting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. See Associated Hotels of India Ltd., Delhi v. Sardar Ranjit Singh, (1968) 2 SCR 548 : ( AIR 1968 SC 933 )". 8. In view of the aforesaid decision, it was held by me in Peshawari Lal v. Surendra Kumar (1979 (UP) RCC 175) that the onus to prove subletting was on the landlord and that the landlord had to show not only that the occupant alleging to be sub-tenant was in exclusive possession of the premises but was there for some valuable consideration. The essential ingredients for the finding that the person who is in occupation is as a subtenant are, firstly, that he is in exclusive possession of the premises and secondly, that he is there for some valuable consideration. The essential ingredients for the finding that the person who is in occupation is as a subtenant are, firstly, that he is in exclusive possession of the premises and secondly, that he is there for some valuable consideration. The second ingredient may be established by circumstances from which the relationship of lessor and lessee between the tenant and the alleged sub-tenant found to be in exclusive possession may be inferred.............Since in the instant case, the courts below proceeded to hold that the first two defendants had sub-let the premises in suit to the third defendant merely from the fact of exclusive possession of the third defendant, the finding cannot be said to be in accordance with law". And further that "the question as to whether apart from exclusive possession, the third defendant was in occupation of the premises in suit for valuable consideration, requires to be investigated in this case". 9. The lower appellate Court, like the trial court, was persuaded to come to the conclusion that the appellant had sublet the accommodation in suit to the defendants-respondents on the basis of the finding that it was the said defendants who were in possession of the premises in suit and that the appellant was not in possession thereof. Read as a whole, the finding recorded by the lower appellate Court in this regard amounts to a finding of exclusive possession of the second and the third defendants-respondents of the house in dispute. The other ingredient, namely, as to whether the said respondents were in occupation for valuable consideration was obviously not present in the mind of the court below when it proceeded to record a finding that the appellant had sub-let the premises in suit to those respondents. The finding about sub-letting by the appellant on the basis of the finding only of exclusive possession of the premises in suit being with the defendants-respondents, cannot be said to be a finding of sub-letting in accordance with law. The decision of the Supreme Court in the case of Smt. Krishnawati ( AIR 1974 SC 280 ), as indicated earlier, clearly lays down the twin requirements of exclusive possession and that too for consideration of a person, other than the tenant before that person can be treated to be a sub-tenant. The decision of the Supreme Court in the case of Smt. Krishnawati ( AIR 1974 SC 280 ), as indicated earlier, clearly lays down the twin requirements of exclusive possession and that too for consideration of a person, other than the tenant before that person can be treated to be a sub-tenant. Since the attention of the court below was not directed to this aspect of the matter, it is obvious that its finding that the appellant had sub-let the accommodation to the defendants-respondents cannot be upheld. The matter requires to be gone into by the lower appellate Court afresh in the light of the correct legal position. 10. It has been urged by the learned Counsel for the plaintiff-respondent that the finding that the appellant had sublet the accommodation to the defendants-respondents is a finding on a question of fact and can, therefore, not be interfered with by this Court in the present Second Appeal. He has placed reliance on some observations made by the Supreme Court in the case of Smt. Krishnawati. Those observations have to be read in the context of the facts of that case. The facts found in Krishnawati's case were that she had taken the premises in suit on lease and had permitted her husband to carry on business therein. The authorities under the Delhi Rent Control Act found that no sub-letting was established in the case. The Supreme Court upheld that conclusion, after laying down that the onus to prove sub-letting was on the landlord and that if the landlord prima facie shows that the occupant, who was in exclusive possession of the premises let out was for valuable consideration, the onus would shift upon the tenant to rebut the evidence. The observation in the Supreme Court case was that "the question to be determined was whether in the above circumstances it was likely that the appellant had sub-let the premises to Sohan Singh. The negative answer given to it by the Rent Courts is merely the factual commonsense inference which did not call for the application of any principle of law. In our view, no question of law, much less a substantial question of law, was involved in the second appeal and the learned Judge was in error in disturbing the concurrent finding of fact of the Rent Control Authorities." 11. In our view, no question of law, much less a substantial question of law, was involved in the second appeal and the learned Judge was in error in disturbing the concurrent finding of fact of the Rent Control Authorities." 11. In the context in which these observations have been made, it cannot successfully be urged, as has been attempted by the learned Counsel for the plaintiff-respondent, that a finding about there being sub-letting recorded by the courts below, without due regard to the legal requirement for such a finding, is one which is sacrosanct in a second appeal. 12. In Tara Chand v. Shyam Lal (1978 All LJ 1096), all that was laid down by a learned single Judge of this Court was that it is not open to a court while exercising revisional power under Section 25 of the Provincial Small Cause Courts Act to reassess the evidence on record and reverse the finding of fact recorded by the trial court. 13. In Smt. Bansraji v. Smt. Pyari Devi, (1979 All LJ 118), it was observed by a learned single Judge of this Court that the concurrent finding recorded by the two courts below about there being sub-letting could not be interfered with in a second appeal because "the finding does not suffer from any error of law". That decision can be of no assistance to the plaintiff-respondent in the instant case where, as noticed above, it has been found that the conclusion that the appellant had sub-let the premises in suit to the defendant-respondents was arrived at without due regard to the ingredients necessary in law for coming to that conclusion. 14. Since the question whether the appellant had sub-let the accommodation in suit to the defendant-respondent has not been approached by the court below on a correct legal principle, it is necessary that the matter should be gone into by it again. The decree, therefore, of the lower appellate court deserves to be set aside. 15. In the result, the appeal succeeds and is allowed. The decree of the lower appellate Court is set aside and the case remanded to it for reconsideration of the question as to whether the accommodation in suit had been sub-let by the appellant to the two defendants-respondents in accordance with law. 15. In the result, the appeal succeeds and is allowed. The decree of the lower appellate Court is set aside and the case remanded to it for reconsideration of the question as to whether the accommodation in suit had been sub-let by the appellant to the two defendants-respondents in accordance with law. The court below would decide the matter within four months of the receipt by it of the record from this Court. Learned Counsel for the parties have stated that their clients would not seek any unnecessary adjournment in the case to make it difficult for the court below to decide the matter again within the aforesaid period. The record shall be sent back to the court below forthwith. 16. In the circumstances of the case, I direct the parties to bear their own costs of this Court.