SALIG SAM v. KISHORI LAL — 1996 DIGILAW 97 (HP)

JUDGMENT R. L. Khurana, J.—The above noted two civil revisions, filed under section 25 (5) of the Himachal Pradesh Urban Rent Control Act, 1987, hereinafter called as the Rent Act, have arisen out of the order dated 22nd April, 1995 of the Appellate Authority (Sessions Judge, Forests), Shimla, The same are thus being disposed of together by this judgment. 2. M/s. Kishori Lal Jagat Ram, respondent in Civil Revision No. 126 of 1995 and petitioners in Civil Revision No. 136 of 1995, are the landlords and are being referred to accordingly hereinafter. 3. Petitioners No. 1 to 3 in Civil Revision No. 126 of 1995 and respondents No. 1 to 3 in Civil Revision No. 136 of 1995 were respondents in the court be low and they are being referred to accordingly hereinafter. The tenanted premises comprise of one shop being shop No. 68 in Sanjauli Bazar, Shimla 4. The landlords filed a petition under section 14 of the Rent Act seeking eviction of the respondents on the following grounds : (a) the tenant-respondent No. 1 has failed to pay the rent with effect from 1-3-1983 at the rate of Rs. 50 per month ; (b) the tenant-respondent No. 1 has after the commencement of the Rent Act without the written consent of the landlords carried out additions and alterations in the tenanted premises by constructing cabins therein and thereby has materially impaired the value and utility of the tenanted premises ; and (c) the tenant-respondent No. 1 has after the commencement of the Rent Act, without the written consent of the landlords, sub-let a part of the tenanted premises to respondent No. 2 by constructing an independent cabin wherein respondent No. 2 is carrying on the business as a tailor. The other part has been sub-let in favour of respondent No 3, who is carrying on the confectionery business therein. 5. The petition was resisted by the respondents, A joint written statement was filed by them Arrears of rent with effect from 1-3-1983 were admitted. It was averred that rent for the period 1-3-1983 to 29-2-1984 was tendered to the landlords by respondent No, 1 but they refused to accept the same without any sufficient grounds. The rent was thus sent by Money-order which was also not accepted by the landlords. It was averred that rent for the period 1-3-1983 to 29-2-1984 was tendered to the landlords by respondent No, 1 but they refused to accept the same without any sufficient grounds. The rent was thus sent by Money-order which was also not accepted by the landlords. They denied having carried out any additions or alterations in the tenanted premises and thereby having impaired the value and utility thereof. The sub-letting was also denied. It was averred that respondent No. 1, alongwith his three brothers, is carrying on joint family business of bakery in the tenanted premises, since the inception of the tenancy. Respondent No. 3 is the brother of respondent No. 1 and a joint tenant of the tenanted premises. Insofar as respondent No 2 is concerned, it was pleaded that he is the brother-in-law (wifes brother) of respondent No. 3. He is a handicapped person and being looked after and maintained by respondent No. 3, as a member of the family. In order to rehabilitate him, he has been permitted to sit in a portion of the tenanted premises, which are under the control and supervision of the tenants-respondent No. I and his brother. They denied that an independent cabin I: as been constructed in which respondent No. 2 is carrying on his business as a tailor. It has been averred that in front of one of the almirahs, one plank has been fixed over which respondent No I and his brothers Peep trays and bread boxes. Below the plank there is a small space, where respondent No 2 sits with his sewing machine and carries on his work is a tailor, 6. The learned Rent Controller (2), Shimla, came to the conclusion that the entire rent upto the period 28-2-1987 stood paid by respondent No. 1 to the landlords. Therefore, there was no arrears of rent. It also held that the tenant-respondent was not guilty of any such act whereby the value and utility of the tenanted premises have been impaired. The learned Rent Controller held that respondents 1 and 3 are joint tenants of the tenanted premises, Sub-letting in favour of respondent No, 2 was held proved. The learned Rent Controller accordingly vide his order dated 28-3-1990 allowed the petition and passed an order of ejectment in favour of the landlords and against the respondents. The learned Rent Controller held that respondents 1 and 3 are joint tenants of the tenanted premises, Sub-letting in favour of respondent No, 2 was held proved. The learned Rent Controller accordingly vide his order dated 28-3-1990 allowed the petition and passed an order of ejectment in favour of the landlords and against the respondents. Three months time was allowed to the respondents to vacate the tenanted premises and for handing over the possession thereof to the landlords, 7. Both the parties went up in appeal before the learned Appellate Authority. The landlords challenged the findings of the learned Rent Controller holding the respondents not guilty of the acts impairing the value and utility of the tenanted premises and that respondents 1 and 3 are joint tenants qua the tenanted premises. 8. Respondents 1 to 3 challenged the findings of the learned Rent Controller holding that the respondents 1 and 3 have sub let a part of the tenanted premises in favour of respondent No. 2, without the written consent of the landlords 9. The learned Appellate Authority vide its impugned order dated 22-4-1995 dismissed the two appeals and affirmed the findings of the learned Rent Controller. 10. Feeling aggrieved by the order of the learned Appellate Authority, the parties have come up before this court by way of the present two revision petitions, 11. The landlords have confined their challenge only to the findings of the two courts below holding the respondents not guilty of the acts thereby impairing materially the value and utility of the tenanted premises. The respondents, on the other hand, have questioned the correctness of the findings of the two courts below to the effect that the tenant-respondents 1 and 3 have sub-let a part of the tenanted premises in favour of respondent No 2. 12. I have heard the learned Counsel for the parties and have also gone through the record of the case. 13. It is well settled that a conclusion on the question of sub-letting is a conclusion on a question of law derived from the findings on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration, {See ; Dev Kumar v. Smt Swaran Lata, 1.96 (I) RCR 40). 14. The expression sub-letting has not been defined in the Rent Act. 14. The expression sub-letting has not been defined in the Rent Act. The apex Court in Jagdish Prasad v. Angoori Devi, 1984 (3) SCR 216, has held that merely from the presence of a person, other than the tenant is the shop, sub-letting cannot be presumed and as long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of the person, other than the tenant in the shop, cannot be assumed. 15. In M/s. Shalimar Tar Products Ltd. v H C Sharma, 1987 (2) RCR 671 (SC), it was held that in order to construe sub-letting, there must be parting of legal possession of the lessee and parting of legal possession means possession with right to include and also right to exclude others. 16. In the present case, there is no denying that respondent No. 2 is occupying a part of the tenanted premises and carrying on his work as a tailor therein The respondents have averred in para 15 of their written statement, in the following terms : “....... It is denied that respondent No. 1 after the commencement of the Act has sub-let the premises or a part thereof. There is no sub-letting of parting away with possession. Respondent No. 2 is brother-in-law of brother of respondent No 1 and is solely dependent upon Respondent No 1 ever since his childhood. Respondent No 2 is physically handicapped and has been looked after and maintained by respondent No. 1 and his brother. Respondent No. 2 is a member of the family of respondent No 1. Respondent No, 1 and his brothers with a view to rehabilitate the respondent No 2 got respondent No, 2 trained in tailoring. It is with permission of respondent No. 1 that respondent No 2 is allowed to sit in a portion of the premises under the control and supervision of respondent No. 1. The effective control and possession of the premises is with respondent No. 1 and his three brothers, who are jointly carrying on business of bakery in the premises in question. Respondent No. 2 is neither in exclusive occupation of any portion of the premises, nor has any effective control over the premises without the permission of the respondent No, 1. The effective control and possession of the premises is with respondent No. 1 and his three brothers, who are jointly carrying on business of bakery in the premises in question. Respondent No. 2 is neither in exclusive occupation of any portion of the premises, nor has any effective control over the premises without the permission of the respondent No, 1. In front of one of the almirahs, one plank has been affixed over which respondent No. 1 and his brothers keep trays and bread boxes which are carried for sale of bread etc by various hawkers of the bakery. Below this plank, there is a small space where respt No. 2 sits with his sewing machine It is only with a view to rehabilitate respondent No. 2, who is physically handicapped, that respondent No. 1 has allowed him to sit in a portion of the shop so that he may keep himself engaged, In view of this submission, there is no sub-letting or parting away with possession. It is denied that there is any sub-letting for valuable consideration." 17. In order to prove that respondent No. 2 is not. a sub-tenant and that he has been permitted only to sit in a small portion of the tenanted premises and also that there has been no parting with legal possession by the tenant, the respondents apart from themselves having stepped into the witness box, have examined RW 1 Jai Chand and RW 8 Parmeshwari Dass. RW 5 Shri S. P. Kapoor retired Superintending Engineer, was examined by the respondents as an expert. He had inspected the tenanted premises. On 15-7-1986, that is, during the pendency of the proceedings before the learned Rent Controller. His report is Ex. RW 5/A. He has reported that the tenanted premises consist of three rooms and a glazed verandah. Front room consists of two cabins and a passage. Bigger cabin is being used as a show-room attached to the bakery, while the smaller cabin is in possession of respondent No. 2. This small cabin has a plywood door and partition towards the gallery, 18. The respondents while appearing as RW 11 to RW 13 have denied the existence of any cabin in the tenanted premises, which stands belied by the testimony and report of RW 5. This small cabin has a plywood door and partition towards the gallery, 18. The respondents while appearing as RW 11 to RW 13 have denied the existence of any cabin in the tenanted premises, which stands belied by the testimony and report of RW 5. RW 1 Jai Chand has stated that half portion of the front room of the tenanted premises is being used as a tailors shop and the other half as a bakery. He has further stated that respondent No, 2 carries on his work as a tailor in the abovesaid half portion. He has, however, denied the existence of a separate sign board in respect of the tailors business being carried out by respondent No. 2. Respondent No. 2 has denied having ever displayed a sign board of his tailoring shop. Though respondents No. 1 and 3 while appearing as RW 12 and RW 13 respectively have admitted that such a sign board was displayed by him and has since been removed. 19. RW 8 Parmeshwari pass has admitted that respondent No, 2 carries on his business as a tailor in a cabin in the tenanted premises. He has further deposed that the work of tailoring is being carried out by the respondent No. 2 exclusively. 20. The learned Counsel for the respondents in support of his contention that there has been no sub-letting in favour of respondent No. 2 and that the legal possession remained with respondents 1 and 3, tenants, has placed reliance on Syed Feroze Ali Shah v. Syed Jamil Ali Shah and another, 1980 (2) RLR 549, where the tenant had merely permitted his brother to use the tenanted premises without any consideration while retaining possession and it was held that the same did not amount to sub-letting, 21. The learned Counsel for the respondents has next relied on Nanak Chand v Sansar Chand and another, 1982 (I) RLR 76 ; Sat Narain and another v. Raghbir Singh and others, 1983 (1) RLR 85 ; Shrimati Parkash Wanti v. Shri Rattan Lal Sain, 1977 (I) RLR 311 ; Moidu Kutti v. T. B Ramachandrayya and another, 1977 (1) RLR 893 and Om Parkash v. Jugal Kishore and others, 1978 (2) RLR 491. Suffice to say that the facts involved in the said cases are different from the facts in the present case. Therefore, no reliance can be placed thereon, 22. Suffice to say that the facts involved in the said cases are different from the facts in the present case. Therefore, no reliance can be placed thereon, 22. The High Court of Punjab and Haryana in Kishan Chand v. Kunden Lal 1967 PLR (SN) 57, has indicated the approach in cases of subletting that has to be kept in forefront by the Court :— “......that a landlord is almost always a stranger to agreements of subletting between his tenant and sub-lessee and he has generally to rely on attending circumstances to establish subletting by necessary inference. It must be very rarely that direct evidence of sub-letting without the landlords consent. Whether in the form of a lease deed or of testimony of witnesses to whose presence the sub-lease is created, can come to the hands of the landlord The proof of sub letting thus depends upon the probability of the premises having been sub-let, and all that is required is material on which the Court can, like a prudent person guided by his own experience end judgment, regard being bad to the ordinary course of human conduct, reasonably act upon the supposition that the premises have been sub-let.....” 23. In the case of Smt. Rajbir Kaur v. S. Chokesiri and Co., 1988 (2) RCR 328, while considering the question of sub-letting it was held that the burden of making out a case of sub-letting is on the landlord. It was also held that the transactions of sub-letting in the guise of licences are in the very nature clandestine arrangements between the tenant and the sub-tenant and it would be difficult to get direct evidence on the same. If exclusive possession of the alleged sub-tenant is established then it may be permissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind The Apex Court held :— “If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this Such transactions of sub-letting in the guise of licences are in their very nature, clandestive arrangement between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of sub-letting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard. he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that, appellants have been forced by the courts below to have established exclusive possession of the ice-cream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations, There is no explanation forthcoming from the respondent appropriate to the situation as found.” The above principle was reiterated by the Apex Court in Islamand v. Gopal Dubey, 1995 (1) RCR 101. 24. In Maghi Ram v. Arya Samaj, 1992 (2) RCR 320, the tenant after having raised the partition walls in between the tenanted shop, had sub-let 3 portion of the shop to some television dealer The tenant denied having raised partition walls. It was pleaded that in about l/4th portion in one corner of the shop a small show room enclosed by plywood sheet and big pane had been made. There was only one entrance and exit to the whole shop. Evidence brought on record established that plywood partition was raised by the tenant with independent access. A Single Judge of this Court (Corum : Ms, Sharma, J.) came to the conclusion that it was a case of subletting. There was only one entrance and exit to the whole shop. Evidence brought on record established that plywood partition was raised by the tenant with independent access. A Single Judge of this Court (Corum : Ms, Sharma, J.) came to the conclusion that it was a case of subletting. The facts of the present case are somewhat similar to the facts of Maghi Rams case {supra). The only difference being in the defence set up by the tenant. 25. It has come on the record that a wooden cabin has been constructed within the tenanted premises and respondent No 2 is in exclusive possession thereof. It has been admitted by respondents 1 and 3 as RW 12 and RW 13 that they have nothing to do with the tailoring business being carried out by respondent No. 2. It is also in the statement of respondent No. 2 that he has employed a helper to assist him in his tailoring business. 26. Exs. P-2 to P-4 are the photographs of the tenanted premises. These photographs have been admitted by the respondents while appearing as RW 11 to RW 13. A bare perusal of the same shows that the tenanted premises have been divided into two portions In one portion consisting of a small cabin tailoring business under the name and style of "Sharma Tailors” is being carried out while in the other bakery business is being carried out under the name of "Sharma Bakery". The cabin in which admittedly tailoring business is being carried out has two openings that is, one towards the bazaar and the second towards the gallery. Ex. P-3 further shows that there is a sliding door towards the gallery and such door can be locked independently. In fact a lock can be seen hanging along the handle of the sliding door. Reading the entire evidence coming on the record on behalf of the respondents alongwith these photographs Exs P2 to P-4 it appears that during the pendency of the petition and before the visit of RW 5 to the spot the respondents were able to carry out changes in the fact situation. For example, the sign board of "Sharma Tailors" was removed. The front opening also appears to have been changed by setting up a show window in its place. For example, the sign board of "Sharma Tailors" was removed. The front opening also appears to have been changed by setting up a show window in its place. Such changes presumably were carried out to defeat the claim of the landlords by trying to show that the legal possession had throughout remained with the tenant respondents.. 27. Much stress was laid by the learned Counsel for the respondents on the fact that respondent No 2 is a handicapped person and wifes brother of respondent No. 3. He resides with respondents No. 1 and 3 as a family member and that he was allowed to sit in a corner of the tenanted premises to carry on his work as a tailor in order to rehabilitate him. Save and except the sole testimonies of the respondents themselves no other evidence is forthcoming to show that respondent No 2 is residing with respondents 1 and 3 as a family member. The best available evidence in the form of ration card and voters list has not been produced. 28. Even if it be assumed that respondent No. 2 is living with respondents 1 and 3 in the same house, he cannot be termed as a family member. Respondent No. 2 himself being an earning hand cannot also be said to be dependent on respondents 1 and 3. As stated above, the tailoring business is being carried out by respondent No. 2 himself. He has even employed a helper. Respondents 1 and 3 have nothing to do with such tailoring business. In view of the fact that respondent No. 2 has been found to be in exclusive possession of a part of the tenanted premises, the two courts below have rightly held that such part of the tenanted premises have been sub-let in favour of respondent No, 2 without the written consent of the landlords, 29. Coming to the question whether respondents are guilty of having materially impaired the value and utility of the tenanted premises, it has come in evidence that a cabin has been constructed by the respondents within the tenanted premises. RW 5 Shri S. P. Kapoor, a qualified Engineer, who had inspected the tenanted premises has deposed that the cabin is a temporary one. No part of the cabin is embedded either in the walls or the floor of the tenanted premises. There is nothing in rebuttal by the landlords. RW 5 Shri S. P. Kapoor, a qualified Engineer, who had inspected the tenanted premises has deposed that the cabin is a temporary one. No part of the cabin is embedded either in the walls or the floor of the tenanted premises. There is nothing in rebuttal by the landlords. Such temporary construction of cabin cannot be said to have impaired the value and utility of the tenanted premises The concur rent findings of the two Courts below on this issue are based on proper appreciation of evidence. Such findings do not suffer from any illegality or impropriety. As a result, both the revision petitions fail and the same are accordingly dismissed leaving the parties to bear their own costs. Revisions dismissed.