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2010 DIGILAW 2497 (PNJ)

Paramjit Kaur v. Gurmeet Singh

2010-08-31

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Tenant-revisionist has filed present revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), challenging the judgment dated 06.03.2007 passed by the learned Rent Controller, Rupnagar, as well as judgment dated 15.05.2008 passed by the learned Appellate Authority, Rupnagar, thereby directing the eviction of the tenant-revisionist from the demised shop. 2. Landlord-respondent has filed eviction petition against Paramjit Kaur-revisionist and Kulwant Singh (O.P. No.2 in the eviction petition), alleging therein that earlier Mohinder Singh was tenant of the shop in dispute and after his death, Paramjit Kaur-revisionist inherited the tenancy rights and after the death of her husband, she has sublet the shop in question to O.P. No.2-Kulwant Singh without permission of the applicant and she has transferred entire possession to O.P. No.2-Kulwant Singh and Kulwant Singh is in exclusive possession of the demised shop. It is further averted by the landlord that tenant is in arrears of rent from 01.04.2001 till the date of filing of the eviction petition. Landlord has further averted in the eviction petition that he requires shop in question for his personal use and occupation. It is contended by the landlord that he is a diploma holder in electrical and he wants to establish himself in the demised shop. 3. Eviction petition filed by the landlord-respondent herein was resisted by the O.Ps. It was contended by the revisionist-tenant that O.P. No.2 is a real brother of the deceased husband of the revisionist and he helps her in her business and she has never sublet the alleged shop. It is further averted by the tenant that tenant is not in arrears of rent and entire arrears along with cost and interest was paid on the first date of hearing. The alleged need of the landlord is also disputed. 4. Learned Rent Controller found that tenant is not in arrears of rent and the entire arrears has been paid, however, learned Rent Controller found that O.P. No.2-Kulwant Singh is in exclusive possession of the demised shop and Paramjit Kaur is not in the actual possession of the shop in dispute and she has transferred the possession of the shop to Kulwant Singh, hence, subletting is proved. Learned Rent Controller did not find favour with the landlord on the question of bona fide need. Learned Rent Controller did not find favour with the landlord on the question of bona fide need. Having found subletting proved, learned Rent Controller vide impugned judgment dated 06.03.2007 directed eviction of the O.Ps. 5. Revisionist herein preferred an appeal before the learned Appellate Authority under the Act challenging the eviction order passed by the learned Rent Controller. Landlord has preferred cross objections in the appeal challenging the findings of learned Rent Controller on the issue of bona fide need. Learned Appellate Authority vide judgment dated 15.05.2008, dismissed the appeal as well as the cross objections, Feeliag aggrieved from the judgments passed by both the Courts below, only tenant has approached this Court under Section 15(5) of the Act, by way of present revision. 6. Landlord has not challenged the judgments of both the Courts below on the question of bona fide need. 7. Learned counsel for the tenant-revisionist vehemently argued that landlord could not prove that revisionist has given exclusive possession of the shop in dispute to Kulwant Singh. It is further argued that Kulwant Singh is the real brother of the husband of the revisionist and he helps her in her business, hence, sub tenancy cannot be said to be proved. 8. Learned counsel, appearing on behalf of the respondent-landlord, argued that at the time of spot inspection of the Local Commissioner, revisionist was not found in the shop, rather, two servants on behalf of Kulwant Singh were found in the shop in question. It is further stated by the learned counsel for the respondent that revisionist in her statement on oath has stated that in the shop, Kulwant Singh is doing business, hence, it is proved that revisionist is not in possession and she has transferred exclusive possession to the sub-tenant-Kulwant Singh. Learned counsel for the landlord further agreed that scope of revision is limited and concurrent findings of both the Courts below on the question of subletting should not be disturbed. 9. Learned counsel for the landlord further agreed that scope of revision is limited and concurrent findings of both the Courts below on the question of subletting should not be disturbed. 9. Learned counsel for the revisionist - tenant has placed reliance of judgments of this Court in the matter of Smt. Sushila Devi Gandhi v. Hira Lal and others, 1 2007(1)R.C.R. 575 (SC) in the case of Kirpal Singh v. Sardha Ram, 2 2003(2) R.C.R. (Rent) 324 and judgment of Apex Court in the case of Resham Singh v. Raghbir Singh, 3 (1999-3)123 P.L.R. 527 and argued that if brother-in-law of the tenant is working in the shop on behalf of the tenant, it would not amount to sub-letting. It is further argued that landlord has failed to prove that revisionist has received any consideration/rent from her brother-in-law Kulwant Singh. The Apex Court in the matter of Resham Singh (supra) has held in paragraph Nos.5, 6, 7 and 8 as under:- "5. The question of sub-letting is a conclusive on question of law derived from the findings on materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. While considering the said sub-section (5) the above view was also expressed by this Court in Dev Kumar (Died) Through LRs v. Swaran Lata (Smt.) and others, (1996-2)113 PLR 391 (SC): 1996(1) S.C.C. 25. 6. The sub-Section (5) empowers the High Court either on application or in its own motion to call for an examination of the record for the purposes of satisfying itself as to the legality and propriety of such orders or proceedings. In view of the above language of sub-Section (5) we find that the High Court while exercising powers under sub-Section (5) of Section 15 of the Act has got the powers to satisfy itself as to whether the question of sub-letting which is a question of law was properly decided by the courts below. From the impugned judgment of the High Court we find that the Court did not rightly find ingredients of sub-letting. We, therefore, hold that the High Court was justified in setting aside the judgments of courts below. 7. From the impugned judgment of the High Court we find that the Court did not rightly find ingredients of sub-letting. We, therefore, hold that the High Court was justified in setting aside the judgments of courts below. 7. It is settled position of law that to establish subletting the onus is on the landlord to prove through evidence that sub-tenant was in exclusive possession of the property in question; that between the subtenant and the tenant there was relationship of lessee and lessor and that possession of the premises in question was parted with exclusively by the tenant in favour of the sub-tenant. (See: Kala and another v. Madhu Parshad Vaidya, 1998(6) SCC 573 and Benjamin Premanand Rawade (Dead) by LRs v. Anil Joseph Rawade, 1998(9) S.C.C. 688. 8. In the present appeal it is not disputed that both the respondents are brothers and respondent No.l Raghbir Singh who was the tenant was involved in some criminal proceedings and he was absconding for a considerable period. Being an absconder it does not possible for the tenant-respondent No.l Raghbir Singh be physically present in the premises in question. It is natural to allow his brother-Kuldip Singh to look after the shop and this fact would not amount to sub-letting." 10. Undisputedly, O.P. No.2-Kulwant Singh is the brother-in-law of the revisionist. Undisputedly, husband of the revisionist is no more. Once tenant has taken a plea that O.P. No.2 is the brother of the deceased husband of the revisionist and he helps her in her business and she has not sub-letted the shop, hence, in my view, sub tenancy cannot be lightly inferred. In the present case, landlord could not prove that revisionist - tenant has to control over the business being carried out in the shop in dispute. To prove the sub tenancy, landlord is bound to prove that tenant has ceased to occupy the shop and entire shop and business therein is under the control of sub tenant. Landlord could not prove that there is any relationship of landlord and tenant between the tenant and alleged sub tenant. In the present case, both the Courts below have drawn inference of sub-letting only on the ground that at the time of spot inspection, O.P. No.2-Kulwant Singh, brother of the deceased husband of the tenant was found doing business. In my considered view, inference drawn by both the Courts below is not legal. In the present case, both the Courts below have drawn inference of sub-letting only on the ground that at the time of spot inspection, O.P. No.2-Kulwant Singh, brother of the deceased husband of the tenant was found doing business. In my considered view, inference drawn by both the Courts below is not legal. The question of subtenancy is not proved. 11. Question of sub tenancy is a question of law also. 12. While exercising revisional powers this Court has to satisfy as to whether ingredients of sub tenancy are proved or not. If this court finds that ingredients are not proved then it would be open for this Court to disturb judgments/findings of both the Courts below on the question of sub tenancy. As observed herein above, sub tenancy is not proved. Hence, impugned judgments cannot be allowed to stand. Petition is allowed. The impugned judgments are quashed.