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2009 DIGILAW 365 (PNJ)

Moti Sagar v. Ram Murti

2009-02-19

K.KANNAN

body2009
JUDGMENT K. Kannan. J.:- The tenant that faces an action for eviction on the ground of subletting is the revision petitioner before this Court. The landlord’s requirement had been rejected by the Rent Controller and decision was reversed by the Appellate Authority. 2. The landlord had sought ejectment on the grounds of subletting and change of user and the ground that survived for consideration was only the case of subletting. The counsel for the revision petitioner pointed out to the nature of relationship between the tenant and the so-called sub tenants being respectively the son on the one hand and father and brother on the other hand. The contention on behalf of revision petitioner was that the father and brother had been merely associated in the business with the original tenant and tenant had not lost his exclusive possession in favour of either of the respondents No.2 and 3 to be characterized as having created sub-tenancy in favour of respondents No.2 and 3. 3. The landlord in his application had stated that the father was doing business in selling steel articles while the brother was doing business as an insurance agent. The, first respondent tenant himself was doing business in yet another shop. It was specifically brought out in evidence that there was a factory located at 4056, near Dholan Wala Khuh where the first respondent was having his factory for making steel articles and that he was also doing an independent business titled M/s Goyal Steel Industries. The Rent Controller found that no doubt the father and brother has been visiting the premises in question, which was held by the first respondent but reasoned that the mere fact that a tenant had allowed brother or father to use the premises would not amount to subletting since the legal right to possession always continued with the tenant. The Rent Controller observed from the evidence of RW-1, a Field Officer in the State Bank of India that first respondent had taken a loan and he had given only the demised property as his office address. The witness has actually spoken about his visit to the shop when the first respondent was actually doing his business. The Rent Controller observed from the evidence of RW-1, a Field Officer in the State Bank of India that first respondent had taken a loan and he had given only the demised property as his office address. The witness has actually spoken about his visit to the shop when the first respondent was actually doing his business. All the photographs, which had been tendered in evidence the landlord showing that respondent No.2 and 3 were actually found seated in the demised premises, the Rent Controller observed that there showed no more than their mere physical presence and the evidence was insufficient to show or prove that the shop had been sublet if either the father or the brother. 4. The Appellate Court took a different decision from the fact that the tenant had actually admitted the possession of respondents No.2 and 3 and if a person other than the tenant was found in possession of the demised premises, the burden of proof was essentially on such a person to explain the character of such possession, for otherwise, the subletting would have to be presumed. The Appellate Authority also laid emphasis on the evidence of RW-7 and RW-8, who had admitted that the respondents were normally separate from each others business and there was no form of partnership between father and son. If the father and sons had separate independent business, according to him, the conclusion was inescapable that persons who are doing independent business such as the respondents No.2 and 3 could not characterise their own business as on behalf of the first respondent. The Appellate Authority also found that the father had been doing business of sale of weight and measures and he had also adduced documentary proof by production of cash bills from persons, who had purchased articles from the father at the demised premises. The evidence of the Field Officer-RW1 had, according to the Appellate Court’s reasoning, admitted that it was the brother who was actually doing his business in insurance and his occupation was also independent of the first respondent’s possession. On such a line of reasoning, the Appellate Court found that the case of subletting had been established. While disposing of the appeal, the Appellate Authority had also considered the several decisions cited on both sides and reversed the finding rendered by the Rent Controller. 5. On such a line of reasoning, the Appellate Court found that the case of subletting had been established. While disposing of the appeal, the Appellate Authority had also considered the several decisions cited on both sides and reversed the finding rendered by the Rent Controller. 5. The learned counsel for the revision petitioner adverts to decisions which spell out the proposition that the mere act of possession of persons other than the tenant along with the tenant cannot be presumed as proof of sub-tenancy and that unless the tenant had actually lost possession of the whole or any other part of, the building to some other person exclusively a case of subletting cannot be inferred, vide decisions in Anil Kumar Vs. Sita Devi and another, [2007(1) LAW HERALD (P&H) 32] : 2006(2) RCR 417 and Dipak Banerjee Vs. Lilabati Chakraborty (1987) 4 SCC 161. The possession of one brother in partnership with another was found to be not establishing a case of sub-tenancy in the decision of this Court in Pala Ram and another Vs. Om Dutt 1993(2) AIRCJ 390 and the decision of the Hon’ble Supreme Court in Jagan Nath (deceased) through his LRs Vs. Chander Bhan and Ors 1988(1) RCR 629. In the case before the Hon’ble Supreme Court, the handing over of business of father to the son and father himself retiring from the business was found to be not sufficient to establish a case of sub-tenancy. The nearness of relationship of parties along with the tenant were held in several decisions such as M/s Mahendra Saree Emporium. Vs. G.V. Srinivasa Murthy 2004 (2) RCR 286, Syed Feroze Ali Shah Vs. Syed Jamil Ali and anr. 1980(2) RCR 320 and Raijnder Parshad and another Vs. Parveen Kumar, 1992 (2) RCR 150 as not establishing cases of sub-tenancy. In these batch of decisions the conduct of a brother as seen to be sitting in the tenanted premises or the brothers jointly running the business were taken as all instances not proving cases of sub-tenancy. 6. If it was merely a case of a tenant, who had allowed his father or brother to be associated in the business, all the decisions which are cited above by the tenant could be accepted. 6. If it was merely a case of a tenant, who had allowed his father or brother to be associated in the business, all the decisions which are cited above by the tenant could be accepted. However, the attempt that had been made before the Courts below and what was found as established by the lower Appellate Authority was, the father and brother had been doing independent business from the business which was carried on by the original tenant. In fact, the conduct of the business by the father independently was matter of evidence clearly established through the admission of witnesses RW-7 and RW-8. This Court has itself considered instances of brothers, who were found to be not doing joint business but the possession of one brother independently of the business of tenant to involve case of sub-tenancy. Radhey Sham through L.Rs. Vs. Arjun Singh Kirpa Ram Charitable Trust, Rewari and another 2008(2) RCR 195 was a case of brother, who has been separated from the tenant from his another brother who was tenant when the Court fond that if no evidence was brought on record to prove that both brothers were doing business together sub-tenancy must be presumed. In Naresh Chander Kaushik Vs. Sh. Krishan Kumar 2008(1) RCR 547 this Court again held that once the landlord proved that a person other than a tenant, was in possession, the fact that such a person was only a brother or father was irrelevant and the onus of proof would lie heavily on such a person to show in what other capacity a person other than the tenant was carrying on a business. The same principle finds expression Mohri Ram (died) L.Rs. Vs. Shivshankar Lal (died) Lrs. 2006(2) RCR 281 that proof of monetary consideration by the sub-tenant to the tenant was not a sine qua non to establish the case of subletting. 7. The Appellate Court had reversed the decision of the Rent Controller by examining each one of the circumstances, which the Rent Controller had taken to render his finding and ultimately came to the conclusion that the business run by the father was independent of the business run by the tenant-son and hence chose to take, a different finding on issue of fact. At the stage of revision, it may be difficult to reverse a finding of fact, unless the finding is perverse or the Appellate Court had considered matters which were irrelevant or omitted to take notice of events which were relevant. On a given set of evidence, if two views were possible, one of the Appellate-Authority as a final Court of facts which had adopted one line of reasoning and the other of the Revisional Court, this Court would affirm that line of reasoning which had found acceptance at the Appellate Court. I find that the Appellate Court had given adequate reasons and affirmed a considered opinion while examining all the witness and the documentary evidence applied by both parties, referred to the relevant decision on the point relating to the separate nature of business which were run by father and sons and ultimately found that the plea of subletting had been established. The nearness of relationship of tenant and alleged sub-tenants itself would not be a point to discredit the case of sub-tenancy. As pointed out already, it is not merely a case of near relationship like the father and brother actively being associated in the business of the tenant. It was, on the other hand, a case of an independent and a different business, which the father had been running at the demised premises and where the brother was carrying on his activity sporadic may have been in the insurance business. 8. Under the circumstances, I affirm the decision of the Appellate Authority by setting aside the order of Rent Controller and in the end result, the civil revision petition is dismissed. ------------------