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1996 DIGILAW 281 (KER)

Karshaka Union v. Bahuleyan

1996-07-05

C.S.RAJAN, T.V.RAMAKRISHNAN

body1996
Judgment :- Raj an, J. Petitioners are tenants. The first respondent filed the Rent Control Petition before the Rent Controller for eviction of the building mainly on the ground that the first revision petitioner sub let the building to revision petitioners 2 and 3 without the knowledge and consent of the first respondent and against the provisions of the lease deed. The case of the revision petitioners is that there was no sub lease as alleged in the Rent Control Petition. Re vision Petitioner No.1 is the Karshaka Union represented by its secretary Sri. M. Vasudevan, Revision Petitioner No. 2 is the Private Operators Sub Association, Alappuzha district and third Revision Petitioner is the Lorry and Motor Vehicles Owners Union, Cherthala Taluk. The second revision petitioner is represented by its Secretary, who is none other than Sri. M. Vasudevan. The third revision petitioner is represented by its Vice President who is also the same Sri. M. Vasudevan. Thus, he being the principal office bearer of all the three Unions, the premises were being jointly used by the three Unions. Therefore, it was contended that there was no parting of possession by the first revision petitioner in favour of revision petitioners 2 and 3. The further case is that the legal possession of the rented building still continues with the first revision petitioner. 2. The first respondent was examined as P.W. 1. According to the first respondent, when he went to the building he found the boards of petitioners 2 and 3. He also saw the phone belonging to the third revision petitioner. He also saw the workers of revision petitioners 2 and 3 sitting there, but he did not know who are all the workers silting there on behalf of revision petitioners 2 and 3. Though he saw two persons sitting there, he did not ask the name and other details of those persons. The evidence of the first revision petitioner as D.W.1 is to the effect that the office of revision petitioners 2 and 3 are allowed to function in the same building because Sri. M. Vasudevan is the principal office bearer of all the three Unions. He also deposed that he had never sub let the building to revision petitioners 2 and 3. It is the first revision petitioner who is paying rent to the first respondent. M. Vasudevan is the principal office bearer of all the three Unions. He also deposed that he had never sub let the building to revision petitioners 2 and 3. It is the first revision petitioner who is paying rent to the first respondent. He was emphatic in stating that counter-respondents 2 and 3 were not paying the rent. 3. The Rent Control Court ordered eviction holding that the first revision petitioner had sub let the schedule room to second and third revision petitioners. The reasons which prompted the Rent Controller to come to the above conclusion was that the revision petitioners had separate furniture and separate office Secretary and that all the Unions are maintaing separate minutes and separate accounts for their business. The Rent Control Court also relied on the statement of CPW 1 that the first revision petitioner is getting some amount by way of donation from the other two unions. 4. The appellate authority confirmed the above finding of the Rent Control Court relying on the same reasoning adopted by the Rent Control Court. The argument of Snil Kochuthressia, learned counsel for the revision petitioners in that both the authorities have not approached the question of sub-letting in the proper legal perspective. The question whether there is legal transfer of possession of the premises by the first revision petitioner in favour of revision petitioners 2 and 3 has not been considered by the two authorities. The question whether the first revision petitioner is still in legal possession of the premises, which was proved by evidence was also not properly dealt with by the two authorities. The burden of proving the subletting is heavily on the first respondent and he has not discharged the above burden by conclusively proving that first revision petitioner has legally transferred his possession in favour of revision petitioners 2 and 3. 5. S.105 of the Transfer of Property Act defines lease as a transfer of a right to enjoy the property. Therefore, we have to see whether there was a transfer of right to enjoy the property in a case of sub lease or sub-letting. In the ruling reported in G. Rangamannar v, Desu Rangiah (AIR 1954 Madras 182) Justice Subba Rao (as His Lordship then was) clearly stated the proposition as follows: "It is clear from the aforesaid decisions that there cannot be a subletting, unless the lessee parted with legal possession. In the ruling reported in G. Rangamannar v, Desu Rangiah (AIR 1954 Madras 182) Justice Subba Rao (as His Lordship then was) clearly stated the proposition as follows: "It is clear from the aforesaid decisions that there cannot be a subletting, unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. S.105 of the Transfer of Property Act defines a lease of immovable property as transfer of right to enjoy such property. Therefore, to create a lease or sub-lease a right to exclusive possession and enjoyment of the property should be conferred on another. In the present case, the exclusive possession of the premises was not given to the second respondent. The first respondent continued to be the lessee, though in regard to the business carried on in the premises he had taken in other partners". The above decision of the Madras High Court was approved by the Supreme Court in the ruling reported in M/v. Madras Bangalore Transport Company (West) v. Inder Singh (AIR 1986 SC 1564). 6. In one of the recent decisions of the Supreme Court (M/s. Delhi Stationers and Printers v. Rajendra Kumar. AIR 1990 SC 1208), the Supreme Court had to consider the question whether there was sub-letting. In the above decision, it was held that the tenant is liable to be evicted if he has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of third party and the said right must be in lieu of payment of some compensation or rent. Parting of legal possession means possession with the right to include and also the right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or pasting with possession. This court had also occasion to consider in various decisions the nature of occupation of a sub-tenant. In the ruling reported in Jacob v. Jacob (1977 KLT 224) this court considered the question whether possession of the firm amounts to sub-lease or sub-letting. This Court held mat the possession of the firm is possession of the partners. This court had also occasion to consider in various decisions the nature of occupation of a sub-tenant. In the ruling reported in Jacob v. Jacob (1977 KLT 224) this court considered the question whether possession of the firm amounts to sub-lease or sub-letting. This Court held mat the possession of the firm is possession of the partners. Granting of permission to the firm to conduct business in the building does not amount to transfer of exclusive possession by the tenant to another person. 7. A mere transfer of physical possession may not be sufficient to constitute subletting. Every transfer of possession need not be a transfer of lease or sub-letting. There cannot be sub-letting unless the lessee patted with legal possession. In the ruling reported in Abdurehim Sail v. Sahul Hameed (1981 KLT 289) also this Court held that the transfer of premises in favour of the partnership in which the lessee also is a partner does not constitute a sub-lease. A Division Bench of this Court in the ruling reported inHajiP. Mammii v.Abdurahiman Basha (1986 KLT 1250) also held that persons who were original tenants did not create a sub-lease or sub-let the premises when they entered into a partnership along with new partners. Such a transaction does not bring about sublease to enable the landlord to seek eviction. 8. What emerges from the above pronouncements of the Supreme Court and this Court, is that in order to prove a sub-lease, there must be transfer of an exclusive right to enjoy the property and that there must be parting of legal possession with the right to include and right to exclude others and that mere occupation is not sufficient to constitute either sub-tenancy or parting with possession. 9. With these principles in mind the evidence in this case has to be considered. The only evidence to prove sub-lease is the evidence of the landlord who was examined as PW.1. Apart from deposing that he found the boards of petitioners 2 and 3 and that he saw certain workers sitting in the room, there was no evidence to show that the first revision petitioner parted with the legal possession of the premises in favour of revision petitioners 2 and 3. Apart from deposing that he found the boards of petitioners 2 and 3 and that he saw certain workers sitting in the room, there was no evidence to show that the first revision petitioner parted with the legal possession of the premises in favour of revision petitioners 2 and 3. The evidence on behalf of the revision petitioner is that he allowed the offices of revision petitioners 2 and 3 to function in the same building and to share the premises. It is also pertinent to point out that Sri. M. Vasudevan is the principal office bearer of all the three unions. Therefore, the sharing of the premises by the three unions cannot constitute a sub-lease in favour of counter petitioners 2 and 3. 10. Both the authorities have not approached the question whether there was sublease or not in the above legal perspective. There was finding that there was parting with legal possession by the first petitioner and that the first petitioner was excluded from enjoying the premises by petitioners 2 and 3. The finding of the Courts below with regard to the sub-letting is entirely based on the fact that t here were separate name boards and separate furniture for the three Unions and the three Unions were maintaining separate minutes and separate accounts. The above facts are totally irrelevant and immaterial for deciding the question whether there was a sub-lease in the eye of law. 11. The respondent-landlord has failed to establish a sub-lease in favour of revision petitioners I and 2 by proving mat the first revision petitioner has parted with legal possession of the entire or part of the rented premises or that the first revision petitioner has transferred the exclusive right to enjoy the property in favour of revision petitioners 2 and 3. Mere occupation for enjoyment of the premises by counter petitioners 2 and 3 along with counter petitioner No.1 can never be termed as a sub-lease so as to attract the vice of S.11(4) of Act 2/65. In the circumstances, we are of the view that the orders of eviction concurrently passed by both authorities arc vitiated by a serious illegality and are vitiated to be set, aside in exercise of the powers under S.20 of the Act. Therefore, we allow the Civil Revision Petition. The orders of the Rent Control Court and the Rent Control appellate Authority are set aside. Therefore, we allow the Civil Revision Petition. The orders of the Rent Control Court and the Rent Control appellate Authority are set aside. The eviction petition is dismissed. We make no order as to costs.