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Madras High Court · body

2010 DIGILAW 2510 (MAD)

R. Yamini v. A. Safia & Others

2010-06-24

G.RAJASURIA

body2010
Judgment : Inveighing the judgment dated 19. 2009 passed by the learned VII Small Causes Court, Chennai in R.C.A.No.97 of 2005 confirming the order dated 1. 2005 passed by the learned XV Small Causes Court, Chennai in R.C.O.P.No.2189 of 2003, this civil revision petition is focussed. 2. Heard both sides. 3. Broadly but briefly, narratively but precisely, the relevant facts, absolutely necessary and germane for the disposal of th’s civil revision petition would run thus: The respondents 1 to 6 herein filed R.C.O.P.No.2189 of 2003 seeking the following relief: “to pass an order of eviction against the respondents, directing them to quit and deliver vacant possession of the said property No.G-1, Ground Floor, “Cheilammal Complex”, No.11, Sri Thyagaraja Road, T.Nagar, Chennai 600 017 described in the schedule here under written to the petitioners” (extracted as such) The matter was contested by the respondents therein before the Rent Controller. On the side of the petitioners, one Mr. Ramakrishnan was examined as P.W.1 and Exhibits P-1 to P-8 were marked. On the side of the respondents, R.W.1 and R.W.2 were examined and Exhibits Exhibit R-1 to R-22 and Exhibits R-1(a), R-1(A) and R-2(A) were marked. Ultimately, the Rent controller ordered eviction on the ground of sub-letting. 4. Beingaggrieved by and dissatisfied with the same, the revision petitioner herein/R-1 Yamini filed R.C.A.No.97 of 200; whereas the seventh respondent herein/R2 Centwin filed separate R.C.A.No.359 of 2005, as against the same order passed by the Rent Controller. Both the RCAs were dismissed, as against which, the revision petitioner/appellant/first respondent preferred this revision on the following grounds among others. i) Both the Courts below failed to take into account that there was no relation ship of landlord and tenant between the revision petitioner Yamini and R2 Centwin. ii) The Courts below failed to take note of the fact that the concept “sub-letting” could be pressed into service, if at all, the landlord could prove that the tenant Yamini Sub-let the premises in favour of Centwin for a specified rent. But in this case, there was no oral or documentary evidence adduced on the side of the landlord to prove that for any rent R-1 Yamini let the property to Centwin. iii) The Courts below also failed to take note of the fact that the revision petitioner is the franchisee of Centwin. But in this case, there was no oral or documentary evidence adduced on the side of the landlord to prove that for any rent R-1 Yamini let the property to Centwin. iii) The Courts below also failed to take note of the fact that the revision petitioner is the franchisee of Centwin. iv) The Courts below assumed and presumed as though Yamini sub-let the premises in favour of Centwin. 5. The learned senior counsel for the revision petitioner reiterating the grounds of revision and also citing authorities on his side would develop his argument, the gist and kernel of them would run thus: a) The Hon’ble Apex Court made a fine distinction between sub-letting and franchisee agreement. Simply because, the franchisee agreement emerged between the tenant and a third party the landlord of the premises cannot jump to the conclusion and press into service the ground sub-letting and try to evict the tenant and if it is done so, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 could be used as an engine of oppression against the tenant and the beneficial aspect of the Act would be set at naught. b) At no point of time, the tenant Yamini disassociated herself from doing business in the demised premises. The representative of Centwin was also present in the demised premises along with the tenant and selling the products of Centwin. But all sales were accounted in the name of the tenant and billings were effected only in the name of the tenant. c) Marappan, the representative of Centwin after filing his counter in support of the tenant ad also having deposed before the Rent Controller, in support of the tenant fortifying and buttressing the stand of the tenant, had a volte face and turned turtle and colluded with the landlord at the appellate stage and tried to work against the interest of the tenant Yamini. In fact the said Marappan and the landlord tried their level best to dispossess forcibly the tenant Yamini and the first appellate Court in its judgment wrongly and erroneously took note of such subsequent collusive developments and honoured it by dismissing the RCA itself, which is against law. In fact the said Marappan and the landlord tried their level best to dispossess forcibly the tenant Yamini and the first appellate Court in its judgment wrongly and erroneously took note of such subsequent collusive developments and honoured it by dismissing the RCA itself, which is against law. d) Evidence is available with the tenant Yamini to demonstrate and display that even after September 2003 Yamini has been doing business under the name and style Raghav Silk Palace; but ignoring these facts both the Courts below decided against the tenant. Accordingly, he prayed for setting aside the order of both the Courts below. 6. BY way of torpedoing and pulverising the argument as put forth on the side of the tenant/Yamini, the learned counsel for the landlord would put forth and set forth his arguments, which could tersely and briefly, pithily and precisely, be set out thus: 1. The evidence on record would speak by itself that the tenant Yamini clearly and categorically in a supine manner admitted that she sub-let the premises in favour of Centwin and the entire business is being conducted only by Centwin ever since October 2003 No evidence was placed before the Court by Yamini to prove that after 2003 also she carried on with the business in her own capacity. 2. There was no collusion between the landlord and Centwin. Voluntarily, Centwin entered into some agreement with the landlord, which cannot be questioned by the tenant, who already parted with the premises. Accordingly, he prays for the dismissal of the revision. 7. Whereas the learned counsel for Centwin would also support the arguments of the learned counsel for the landlord and he would also haste to add that he is having voluminous documents to prove as to what actually transpired between Yamini the tenant and Centwin and if opportunity is given, he would be able to establish that, no more Yamini is interested in the premises and then she is not in occupation of the premises. 8. Thepoints for consideration are as to: 1. Whether there is any illegality or infirmity in the orders passed by both the Courts below? 2. Whether the ground set out in the revision are tenable and whether there is sufficient evidence to arrive at a just decision? 9. 8. Thepoints for consideration are as to: 1. Whether there is any illegality or infirmity in the orders passed by both the Courts below? 2. Whether the ground set out in the revision are tenable and whether there is sufficient evidence to arrive at a just decision? 9. Considering the pro et contra, I would like to observe, at the outset itself, that it is a trite proposition of law that if best evidence is available with either of the parties, it is the duty of the party to place before the Court the same. Keeping the best evidence with themselves, there is no justification for building casties in the air. 10. I recollect and call up the maxim-Affirmantis est probare- He who affirms must prove. It is quite obvious and axiomatic that a person, who comes forward with a prayer seeking eviction of a tenant and that too on the ground of sub-letting should, at the first instance prove it and the petitioners/landlords cannot try to fob off their responsibility on the tenant to disprove the case of the petitioners. While holding so, I am also fully aware of the ambit of Section 10 of the Indian Evidence Act. If any fact is within the exclusive knowledge of a particular party and if that party despite having been called upon to disclose, did not furnish, then adverse inference could be drawn. To say the least, the lower Court simply jumped to the conclusion as though adverse inference could be drawn as against the tenant. Before ushering in the concept adverse inference, certain procedural formalities are there and the law envisages the same. 11. Here, in this case, I could see that the landlords did not take any steps to summon any document from the tenant or the alleged sub tenant. But on the other hand, the petitioners throughout tried to place reliance on the versions of respondents 1 and 2 and accordingly, they tried to achieve success in the litigative process. 12. To the risk of repetition and pleonasm, but without being tautologous, I would like to highlight that initial burden is always on the landlord to prove sub-letting and after placing such evidence, the burden would shift to the respondent’s side and they have to adduce their evidence, which are within their own knowledge. In other words, the burden of proof is ambulatory and static. In other words, the burden of proof is ambulatory and static. But in this case, such principles of evidence have not been followed by the parties concerned and both the Courts below have not applied their mind on that line. 13. The landlords would try to canvass their plea that the admitted circumstances should be taken as preponderance of probabilities to prove sub-letting. In my opinion, the concept ‘subletting’ is having certain significance. Simply because in a tenanted premises, other than the tenant one other person is found present, doing something straightaway. The landlord cannot call upon the Court to arrive at the conclusion that there is a sub-letting. There should be jural relationship between the tenant and the sub-tenant, so to say, the tenant should have sub-let the premises for a specific rent and those facts cannot simply be presumed or assumed by the mere presence of R2’s representative Marappan in the premises. 14. At this juncture, I would like to extract here under the concepts ‘corpus possessionis and ‘animus possidendi’, as found in the famous treatise Salmond’s Jurisprudence: “……Salmond considered that possession consisted of a corpus possessionis and an animus possidendi. The former, he thought, comprised and the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed. It is certainly true that in assessing whether possession has been acquired lost or abandoned intention may be highly relevant……. The test then for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it – in which event he clearly has possession – we have to ask whether the facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others.” (emphasis supplied) For the purpose of the lower appellate Court to pass orders, it is just and proper on the part of both sides as well as the parties to concentrate on those concepts detailed and delineated supra and adduce evidence. In the case of lease as well as sub-lease, there is transfer of property in the immovable property in favour of one to other. In the case of lease as well as sub-lease, there is transfer of property in the immovable property in favour of one to other. In the case of licence that is absent. So far Tamil Nadu Buildings (Lease and Rent Control) Act is concerned, it is concerning only lease and not licence. This fine distinction should necessarily be borne in mind by the parties in this case as well as the Court below. 15. The learned senior counsel cited the following decisions: (i) Jagdish Prasad v. Angoori Devi AIR 1984 SC 1447 : (1984) 2 SCC 590 . An excerpt from it would run thus: “2…………………………..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 a person other than the tenant in the shop cannot be assumed, the Act does not require the Court to assume a subtenancy merely from the fact of presence of an outsider…………………” .(ii) Shalimar Tar Products Ltd. v. H.C. Sharma and Others AIR 1988 SC 145 : (1988) 1 SCC 70 . An excerpt from it would run thus: “19. ………………….In the instant case, exclusive possession was given to the sub-lessee and the tenant had transferred the right to possess in that portion. It is clear that sub-letting was done without the consent in writing of the landlord. If that is so, there was inevitably breach of the covenant.” (iii) Rajbir Kaur and Another v. S. Chokesiri and Co. AIR 1988 SC 1845 : (1989) 1 SCC 19 . Certain excerpts from it wolild run thus: “22. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of ‘lease’ in Section 105 of the Transfer of Property Act,, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a ‘licence’ under Section 52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise, amounts to an “easement” or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called ‘Possessory Licences’ which confer a right of exclusive possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence “turns on the operative intention of the parties” and that there is no single, simple litmus test to distinguish one from the other. The “solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties”. 24. In Associated Hotels of India v. R.N.Kapoor this Court referring to the classic distinction between a lease and a licence said: There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore, a transfer of an interest in land. The interest transferred is called the lease-hold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. 28. A lease is therefore, a transfer of an interest in land. The interest transferred is called the lease-hold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. 28. In Dipak Banerjee v. Smt. Lilabati Chakraborty SABYASCAHI MUKHARJI, J., observed: But in order to prove tenancy or subtenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent 33. In B.M. Lall case, this Court observed: The question is not of words but of sub-stance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not decisive …. though it is a very important indication in favour of tenancy.” (iv) S.K. Raffuddin and Others v. N.Yeswantha Rao and Others (1997) 1 MLJ 581 at p. 584 of MLJ: “18. It is settled law that to prove sub-lease, initially the landlord will have to prove that the tenant is parted with legal possession and a stranger is in exclusive possession of the building. So long as the exclusive possession is not even spoken to by P.W.1, there cannot be any question of sub-lease. Both the authorities below have not entered a finding that the second respondent, Jaleel, is in exclusive possession of any portion of the building. Both the authorities below have come to the conclusion that Jaleel might be in possession on the ground that he is having independent business. According to the Authorities below, from his presence in the premises, such an inference can be had. 19. I do not think, law goes to the extent of saying that a mere presence of a person in a shop will amount to sub-lease. 21. What is sub-letting is also defined by the Supreme Court in the decision in Shalimar Tar Products Ltd. v. H.C. Sharma and Others (1988) 1 SCC 70 . In paragraph 17 of that judgment (at page 78), their Lordships said thus: “…………………………..parting to the legal possession means possession with the right to include and also right to exclude others. 21. What is sub-letting is also defined by the Supreme Court in the decision in Shalimar Tar Products Ltd. v. H.C. Sharma and Others (1988) 1 SCC 70 . In paragraph 17 of that judgment (at page 78), their Lordships said thus: “…………………………..parting to the legal possession means possession with the right to include and also right to exclude others. That in our opinion, is the matter of fact………” So, the alleged sub-tenant must be in a position to exclude others from interfering with his enjoyment of the building. The entire premises must be under his control and only under him the other person can be included within the premises. Evidence in this regard is absolutely lacking in this case. 22. InDev Kumar v. Swaran Lata (1996) 1 SCC 25 , the only evidence that was let in was, a Commissioner’s Report……………………Apart from the Commissioner’s report, a cash bill under the so-called name of the sub-tenant was also produced. Considering these two evidence, their Lordships of the Supreme Court said thus: “……………………..At the most, the conclusion can be that while the tenant was continuing his own business as well as a business of Commission Agent of Ram Saran Bhola Nath, respondents 2 to 4 have also been permitted to continue their business in the name of Ram Saran Rattan Chand. But that does not establish either the exclusive possession of respondents 2 to 4 or that the tenant has parted with his possession. The exclusive possession of the premises being the first criterion for establishing sub-letting and the same not being established, the conclusion of the High Court about sub-letting is vitiated. In our considered opinion the landlady/respondent No.1 has utterly failed to establish the plea of sub-letting………” In paragraph 9 of the judgment, their Lordships said thus: “………the conclusion on the question of subletting is a conclusion on a question of law derived from the finding on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration………..” 23. Similar is the casein Rajbir Kaur v. S. Chokesiri and Co., (1989) 1 SCC 19 , wherein also, their Lordships reiterated that “if, exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case as in the present 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 vary nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. It is not, unoften, a matter for legitimate inference.” The burden of making good a case of subletting and establishing facts and contentions which support the party’s case is on the party who takes the risk of non-persuasion, viz., the landlord. 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.” 24. So, the basic ingredient to prove the case of sub-lease is ‘parting with possession’. The alleged sublessee must have the right to include and exclude others. If evidence on that aspect is lacking, as held in the decisions cited supra, a finding on subletting can only be considered as illegal. Since the conclusion on sub-letting is a question of law, even though the finding of the authorities below is concurrent, this Court is competent to reverse that finding. It is proper on the part of the Courts below to consider those decisions, which highlight the distinction referred to supra. 16. On the side of respondents, they cited jointly the following decision rendered by this Court in MANU/TN/9633/2006 J.P. Vijayakumar and Another v. S. Ranjan and Another (2006) 4 MLJ 404 . Certain excerpt from it would run thus at p.411 of MLJ: “19. I have gone through the copy of the franchisee agreement dated 24. 2000. 16. On the side of respondents, they cited jointly the following decision rendered by this Court in MANU/TN/9633/2006 J.P. Vijayakumar and Another v. S. Ranjan and Another (2006) 4 MLJ 404 . Certain excerpt from it would run thus at p.411 of MLJ: “19. I have gone through the copy of the franchisee agreement dated 24. 2000. It is stated in the agreement that the partnership Firm ‘Noble Enterprises’ agreed to allow the 2nd respondent company to use the entire premises for displaying, stocking and selling NIKE branded products by the 2nd respondent under their management and control and an office room in the 1st floor will be retained by the 1st respondent. It was further agreed that the 2nd respondent was allowed to utilise the entire premises and all its internal walls for display purpose etc. A separate electric meter was agreed to be provided for the exclusive use of the 2nd respondent. 20. Even though, it was specifically mentioned in the agreement that the 2nd respondent will not be a subtenant, I am of the opinion that this agreement dated 24. 2000 is only a cloak to suppress the fact that the property was sub-let to the 2nd respondent. Even otherwise, a tenant is not supposed to enter into a franchisee agreement with another person, allowing the other person to use and utilise the entire premises for a commission as the same will amount to putting the other person in possession of the leased property giving full power of control and management over the same (leased property)…………….” 17. In this factual circumstances, what I would like to observe is that in the absence of any evidence on the aforesaid line and even though as stated by both sides, they are in possession of evidence and they have not placed before the Court, it is just and necessary to remit the matter back to the appellate authority to take additional evidence at the instance of both sides, so to say, both oral and documentary additional evidence and hear them and decide the case with reference to the decisions cited supra and also the law points observed and highlighted by me in this order. 18. 18. With this observation, the orders of both the Courts below are set aside and the matter is remitted back to the appellate authority for taking additional evidence both oral and documentary and decide the matter after hearing both sides and dispose of the appeal on or before 38. 2010. 19. Incidentally, I would like to highlight that the Courts below and the parties were guilty of laches in not taking steps to see that the alleged sub-tenant Centwin was described in the long and short cause title properly and legally. 20. Accordingly, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed. Petition disposed of.