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Himachal Pradesh High Court · body

2015 DIGILAW 613 (HP)

Manbir Singh v. Suresh Bansal

2015-05-28

TARLOK SINGH CHAUHAN

body2015
Judgment : Tarlok Singh Chauhan, Judge. This revision petition under Section 24(5) of the H.P. Urban Rent Control Act (for short the ‘Act’) is directed against the order passed by the learned appellate authority in a rent appeal whereby the petitioner/tenant has been ordered to be evicted from the premises in dispute and the order to the contrary as passed by the learned Rent Controller has been ordered to be set aside. The facts, in brief, may be noticed thus. 2. The premises i.e. Shop No.5 situate in Ward No.8, Solan had been let out to the tenant (petitioner herein) for non residential purposes on a monthly rent of Rs.404.25 since 01.04.1994. The tenant had been running business of arms and ammunition in the premises. The premises was alleged to have been sub let by him firstly to M/s Desk to Desk Couriers Service and thereafter to M/s Blaze Flash Couriers Pvt. Ltd. The tenant was also alleged to be in arrears of rent and also to have changed the user of the premises and he was also alleged to be causing nuisance by testing and firing the air guns in the area affecting the passage to the Hotel. Eviction of the tenant was sought on the grounds stated above. 3. The petition was contested by the respondent/tenant by controverting the allegations. The tenant claimed to be Franchisee/Commission agent of respondent No.2. He denied having sublet the premises either to M/s Desk and Desk Couriers or M/s Blaze Flash Couriers Pvt. Ltd. It was averred that no rent was charged from the said Company. It was admitted that he was in arrears of rent but denied change of user or impairing the value and utility of the premises and causing nuisance. 4. During the pendency of the petition, the unpaid rent due to petitioners was paid by the tenant. The eviction of the tenant on this ground was not pressed before the appellate authority. 5. On 19.12.2002 the learned Rent Controller framed the following issues:- 1. Whether the respondent No.1 has sub let the premises, in question to respondent No.2, without the consent of landlord/petitioners, as alleged? OPP. 2. Whether the respondent has changed the user of the premises, as alleged? OPP 3. Whether the respondent had materially impaired the value and utility of the premises as alleged? OPP. 4. Relief. 6. Whether the respondent No.1 has sub let the premises, in question to respondent No.2, without the consent of landlord/petitioners, as alleged? OPP. 2. Whether the respondent has changed the user of the premises, as alleged? OPP 3. Whether the respondent had materially impaired the value and utility of the premises as alleged? OPP. 4. Relief. 6. The learned Rent Controller after recording the evidence and evaluating the same dismissed the petition. However, the landlords filed rent appeal before the appellate authority, who allowed the same and this is how the matter is before this Court in revision petition. 7. Shri R.K.Bawa, Senior Advocate, assisted by Shri Jeevesh Sharma, Advocate, has vehemently argued that the appellate authority has misread and misconstrued the pleadings/grounds of petition filed by the landlords, a perusal whereof would show that the same was selfcontradictory and self-destructive. On one hand, the landlords have maintained that nuisance is being caused by the tenant in the area wherein the tenanted premises are situated whereas, on the other hand, the landlords have made an averment that the original tenant had left the premises after letting out the same to the proforma respondent. It is further contended that the learned appellate authority has failed to appreciate that it had not at all been proved on record that the premises in question was not with the tenant. It otherwise had not recorded any findings that it was the proforma respondent, who was in exclusive possession of the property. 8. On the other hand, Shri Bhupender Gupta, Senior Advocate, assisted by Shri Neeraj Gupta, Advocate, has supported the findings of the learned lower appellate Court. I have heard the learned counsel for the parties and have gone through the records of the case. 9. It is the case of the tenant himself that he is no longer carrying on the business of arms and ammunition at Solan after the cancellation of licence in 1983. If that be so, then even if the landlords had sought eviction against the respondent on the ground of nuisance being caused by testing and firing air guns in the area, the same too would be of no avail. It has specifically come in the statement of RW -3 that the respondent is not having arms and ammunition licence after 1996. The licence belonged to his brother Narbir Singh after it was transferred in his name in 1996. It has specifically come in the statement of RW -3 that the respondent is not having arms and ammunition licence after 1996. The licence belonged to his brother Narbir Singh after it was transferred in his name in 1996. He further states that Solan Arms and Ammunition is partnership firm. To similar effect is the statement of RW-4. 10. Now in case the tenant does not have the licence to deal with arms and ammunition, then the allegation of the landlords that respondent was indulging in creating nuisance by testing and firing the arms appears to be an exaggeration. But, then the tenant cannot be permitted to take any advantage, especially, in light of the other facts which have come on record. 11. The tenant has taken a specific plea of being a franchisee on behalf of respondent No.2, a Courier Company, but then he has failed to place on record any document whereby he has been appointed as franchisee. Though a certificate Annexure A issued by Harinder Mohan Singh, General Manager, for M/s Blaze Flash Courier Pvt. Ltd. mentioning therein that M/s Solan Arms and Ammunitions is authorized franchisee to generate the courier business has been placed on record, but the same has not been proved in accordance with law. Therefore, there being no authorization proved on record, it is difficult to hold that the tenant has been appointed as franchisee of respondent No.2. 12. Shri Bawa has taken me through the statements of RW-2 Lokesh Kumar and RW-3 O.N.Bali to try and establish that they are the employees of the tenant, but the tenant cannot derive any benefit from their statements because none of these persons could prove that they were infact the employees of tenant. These witnesses failed to produce any documentary proof in the form of appointment letter, payment of salary etc. etc. whereby there could, prima facie, appear to be an employer/employee relationship between tenant and these two witnesses. 13. The learned lower appellate authority has rightly held that once the provisions of the H.P. Shop Act are applicable, then it is incumbent upon the tenant of the shop to furnish to the Shop Inspector number and names of the employees employed in his shop to carry on the business. He was also required to maintain the records of such employees. But then, as observed the tenant has placed no material whatsoever on record. He was also required to maintain the records of such employees. But then, as observed the tenant has placed no material whatsoever on record. Another factor which cannot be lost sight of is that the Blaze Flash Courier is a private company and can only speak through resolutions, then why no resolution has been placed on record, is not forthcoming. 14. At this stage, it would be relevant to note that RW -3 had initially admitted that he was paid salary by the Courier Company, but then he changed the statement and said that tenant was making the payment. He further stated that the payment was being made by cheque. This witness failed to produce on record statement of accounts of the concerned bank which could have supported the stand of this witness. The tenant as observed earlier had not at all cared to produce any documentary evidence including his cheque book which could have supported version of RW-3 with regard to payment of salary. On similar grounds is the statement of RW-4 and for this very reason the statement of RW-4 can safely be discarded. Therefore, this Court in such circumstances is left with no other option but to draw an adverse inference against the tenant for withholding the best evidence. 15. The learned counsel for the respondent is perfectly justified when he contends that the petitioner is required to stand on his own legs and not to take advantage of the weaknesses of the case of the opposite party. The onus to prove that the petitioner is a tenant and is still in possession of the premises solely rests upon the tenant. Though the tenant claims to be a franchisee of the respondent No.2, yet tenant does not even know the Managing Director of the company. 16. It is more than settled that it is difficult to produce direct evidence of subletting and is, therefore, to be inferred from the facts and circumstances of the case. 17. The learned counsel for the petitioner has placed reliance upon the judgment of the Hon’ble Supreme Court in Parvinder Singh versus Renu Gautam and others (2004) 4 SCC 794 to contend that once the tenant is actively associated with the business and retains the use and control over the tenanted premises with him may be alongwith the partners, the tenant cannot be said to have parted with possession. It is relevant to reproduce the following observations:- “8. The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is subletting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant. 9. A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against subletting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sublets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. Tyagaraja Vs. Vedathanni, AIR 1936 PC 70 is an authority for the proposition that oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different. A lease of immovable property is transfer of a right to enjoy such property. Parting with possession or control over the tenancy premises by tenant in favour of a third person would amount to the tenant having 'transferred his rights under the lease' within the meaning of Section 14(2)(ii)(a) of the Act.” 18. A lease of immovable property is transfer of a right to enjoy such property. Parting with possession or control over the tenancy premises by tenant in favour of a third person would amount to the tenant having 'transferred his rights under the lease' within the meaning of Section 14(2)(ii)(a) of the Act.” 18. He further relied upon the judgment of the Hon’ble Supreme Court in Amar Nath Agarwalla versus Dhillon Transport Agency (2007) 4 SCC 306 to contend that the mere fact that another person is also allowed to use the premises would not amount to subletting. He in particular relied upon the following observations:- “8. In Murli Dhar v. Chuni Lal and Ors.,1969 Ren CR 563 this Court had repelled the contention that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm was occupation by the legal entity other than the original tenant and such occupation proved sub-letting. Repelling the contention this Court held:- "This contention is entirely without substance. A firm, unless expressly provided for the purpose of any statute which is not the case here, is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants." 9. In Mohammedkasam Haji Gulambhai v. Bakerali Fatehali (1998) 7 SCC 608 this Court observed: (SCC p.618, para 13) "There is absolute prohibition on the tenant from subletting, assigning or transferring in any other manner his interest in the tenanted premises. There appears to be no way around this subject of course if there is any contract to the contrary between the landlord and the tenant. In a partnership where the tenant is a partner, he retains legal possession of the premises as a partnership is a compendium of the names of all the partners. In a partnership, the tenant does not divest himself of his right in the premises. On the question of sub-letting etc. the law is now very explicit. There is prohibition in absolute terms on the tenant from sub- letting, assignment or disposition of his interest in the tenanted premises." 10. In a partnership, the tenant does not divest himself of his right in the premises. On the question of sub-letting etc. the law is now very explicit. There is prohibition in absolute terms on the tenant from sub- letting, assignment or disposition of his interest in the tenanted premises." 10. The same principle was reiterated by this Court in Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, (2005) 1 SCC 481 wherein this Court held: (SCC p.492, para 16) "The mere fact that another person is allowed to use the premises while the lesses retains the legal possession is not enough to create a sub lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh v. Renu Gautam (2004) 4 SCC 794 a three-Judge Bench of this Court devised the test in these terms: (SCC P. 799, Para 8) "If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant." 11. Applying these principle to the instant case, it is patent that one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm. Thus the legal possession is retained by a partner who was one of the original tenants. In these circumstances, we find no fault with the finding of the High Court there was no sub-letting of the premises and hence the suit for eviction deserved to be dismissed.” 19. Thus the legal possession is retained by a partner who was one of the original tenants. In these circumstances, we find no fault with the finding of the High Court there was no sub-letting of the premises and hence the suit for eviction deserved to be dismissed.” 19. To similar effect is the judgment of the Hon’ble Supreme Court in Celina Coelho Pereira (Ms) and others versus Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 wherein the legal position regarding subletting was summarized as follows:- “25. The legal position that emerges from the aforesaid decisions can be summarized thus: (i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv)If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.” 20. There can be no quarrel with the aforesaid propositions. But the question is as to whether the petitioner is still occupying the disputed premises or even part thereof. It has come on record that the tenant is no longer residing at Solan and is no longer carrying on the business of arms and ammunition from the premises. It has also been proved that he is not paying salary to the employees of respondent No.2 and is also not paying any taxes to the authorities. 21. This Court in exercise of its revisional jurisdiction cannot interfere with the findings of fact recorded by the first appellate Court/first appellate authority because on reappreciation of the evidence, the Rent Act as applicable to the State does not entitle this Court to interfere with the findings of fact recorded by the first appellate authority merely because on reappreciation of the evidence, its views may be different from the authority below. 22. The legal position has been summed up by the Hon’ble Supreme Court in a Constitution Bench decision in Hindustan Petroleum Corporation Limited versus Dilbahar Singh (2014) 9 SCC 78 wherein it was observed as under:- “43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 23. As observed earlier, sub-tenancy is often created in a clandestine manner and, therefore, subletting can be proved on the basis of legitimate inferences. It shall be apt to reproduce the following observations of Hon’ble Supreme Court in S.F. Engineer versus Metal Box India Limited and Another (2014) 6 SCC 780 wherein it has been held as under:- “19. In Smt. Rajbir Kaur and another v. S. Chokesiri and Co. (1989) 1 SCC 19 , after referring to the decision in Dipak Banerjee v. Smt. Lilabati Chakraborty (1987) 4 SCC 161 and other decisions the Court opined that (Rajbir Kaur case, SCC p.43, para 59) “59……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 has been further observed that: (Rajbir Kaur case, SCC p.43, para 59) “59…..Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the subtenant and there cannot be direct evidence got and it is not, unoften, a matter for legitimate inference.” Dealing with the issue of burden it held that:(Rajbir Kaur case, SCC p.43, para 59) “59…..The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the party’s 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.” 20. In this context, reference to a two-Judge Bench decision in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (1988) 1 SCC 383 would be apposite. In the said case the tenant had permanently shifted his residence elsewhere leaving the rooms completely to his brother for his occupation without obtaining the landlord’s permission. In that context, the Court observed thus: (SCC pp. 387-88, para 5) “5. Now coming to the question of sub-letting, once again we find that the courts below had adequate material to conclude that the respondent had sub-let the premises, albeit to his own brother and quit the place and the subletting was without the consent of the appellant. Admittedly, the respondent was living elsewhere and it is his brother Manadhir who was in occupation of the rooms taken on lease by the respondent. The High Court has taken the view that because Manadhir is the brother of the respondent, he will only be a licensee and not a subtenant. There is absolutely no warrant for this reasoning. It is not as if the respondent is still occupying the rooms and he has permitted his brother also to reside with him in the rooms. On the contrary, the respondent has permanently shifted his residence to another place and left the rooms completely to his brother for his occupation without obtaining the consent of the appellant. There is therefore no question of the respondent’s brother being only a licensee and not a sub-tenant.” 21. In M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and others (1988) 1 SCC 70 while dealing with parting of legal possession, the two-Judge Bench observed that:(SCC p.78, para 17) “17…..There is no dispute in the legal proposition that there must be parting of the legal possession. Parting to the legal possession means possession with the right to include and also right to exclude others.” 22. Parting to the legal possession means possession with the right to include and also right to exclude others.” 22. In United Bank of India v. Cooks and Kelvey Properties (P) Limited (1994) 5 SCC 9 the question arose whether the appellant- Bank had sublet the premises to the union. This Court set aside the order of eviction on the ground that : (SCC pp. 13-14, para 10) “10....though the appellant had inducted the trade union into the premises for carrying on the trade union activities, the bank has not received any monetary consideration from the trade union, which was permitted to use and enjoy it for its trade union activities. It is elicited in the cross-examination of the President of the trade union that the bank had retained its power to call upon the union to vacate the premises at any time and they had undertaken to vacate the premises. It is also elicited in the cross-examination that the bank has been maintaining the premises at its own expenses and also paying the electricity charges consumed by the trade union for using the demised premises. Under these circumstances, the inference that could be drawn is that the appellant had retained its legal control of the possession and let the trade union to occupy the premises for its trade union activities. Therefore, the only conclusion that could be reached is that though exclusive possession of the demised premises was given to the trade union, the possession must be deemed to be constructive possession held by it on behalf of the bank for using the premises for trade union activities so long as the union used the premises for trade union activities. The bank retains its control over the trade union whose membership is only confined to the employees of the bank. Under these circumstances, the inevitable conclusion is, that there is no transfer of right to enjoy the premises by the trade union exclusively, for consideration.” 23. In this context we may fruitfully refer to the decision in Joginder Singh Sodhi (supra) wherein the Court, dealing with the concept of subletting, has observed that to establish a plea of subletting two ingredients, namely, parting with possession and monetary consideration, therefor have to be established. In the said case reliance was placed on Shama Prashant Raje v. Ganpatrao (2000) 7 SCC 522 and Smt. Rajbir Kaur (supra). In the said case reliance was placed on Shama Prashant Raje v. Ganpatrao (2000) 7 SCC 522 and Smt. Rajbir Kaur (supra). The Court also extensively referred to the principle stated in Bharat Sales Ltd. (supra) wherein it has been observed that it would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Though payment of rent, undoubtedly, is an essential element of lease or sub-lease, yet it may be paid in cash or in kind or may have been paid or promised to be paid, or it may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. The Court further observed that since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let. 24. In this regard reference to Celina Coelho Pereira (Ms) and others v. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 would be pertinent. In the said case a two-Judge Bench, after referring to number of authorities and the rent legislation, summarized the legal position relating to issue of sub-letting or creation of sub-tenancy. The two aspects which are of relevance to the present case are: (SCC p.231, para 25) “(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established: (i) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii)-(iv) * * * (v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.” 25. In Vinaykishore Punamchand Mundhada and another v. Shri Bhumi Kalpataru and others (2010) 9 SCC 129 it has been held that : (SCC. 136, para 18) “18. it is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of the scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements takes place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord and that the tenant has put some other person into possession of the tenanted property.” It has been further observed that (SCC pp.136-37, para 19) “19….It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant and such an arrangement cannot be proved by affirmative evidence and in such circumstances the court is required to draw its own inference upon the facts of the case proved at the enquiry.” 24. After taking into consideration all the aforesaid judgments, it was held as under:- “26. We have referred to the aforesaid decisions only to reaffirm the proposition that the Court under certain circumstances can draw its own inference on the basis of materials brought at the trial to arrive at the conclusion that there has been parting with the legal possession and acceptance of monetary consideration either in cash or in kind or having some kind of arrangement. The aforesaid authorities make it further spectacularly clear that the transaction of subletting can be proved by legitimate inference though the burden is on the person seeking eviction. The materials brought out in evidence can be gathered together for arriving at the conclusion that a plea of subletting is established. The constructive possession of the tenant by retention of control like in Cooks and Kelvey Properties (P) Limited (supra) would not make it parting with possession as it has to be parting with legal possession. Sometimes emphasis has been laid on the fact that the sub-tenancy is created in a clandestine manner and there may not be direct proof on the part of a landlord to prove it but definitely it can bring materials on record from which such inference can be drawn.” 25. The tenant has failed to establish that he was a franchisee of respondent No.2 and even his plea that he was a booking agent on behalf of respondent No.2 could not be proved as the documents Ex. P-1 to P-109 were admittedly not executed by the respondent in his own hand. In case the tenant would have been carrying out the business from the rented premises, he could have conveniently produced his books of accounts, bank accounts, income tax, sales tax, VAT returns and number of other documents. Having failed to do so, it can conveniently be held that the tenant has walked out of the premises and exclusive possession of the property has been given to a subtenant, who is running business or Courier Services from the premises. 26. The findings recorded by the first appellate authority can in no manner be termed to be perverse or said to have been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice. There is no illegality or impropriety in the order passed by the appellate authority. 27. There is no merit in this petition and the same is accordingly dismissed leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.