NirMal
Kanta (Dead) through LRS. Vs. Ashok Kumar & ANR. [2008] INSC 531 (28 March 2008)
C.K. THAKKER & ALTAMAS KABIR Altamas Kabir,J.
1. This appeal by special leave is directed against the judgment and order
dated 7th January, 2002, passed by the High Court of Punjab & Haryana at
Chandigarh in Civil Revision No. 2250 of 1984 filed under Section 15 of the
East Punjab Rent Restriction Act, 1949, (hereinafter called the 1949
Act). By the said judgment, the High Court set aside the order dated 25th
October, 1983, passed by the Appellate Authority and restored the order dated
13th August, 1983, passed by the Rent Controller dismissing the
appellant-landlords petition for eviction of the respondents under Section
13 of the 1949 Act. The facts relating to the filing of the eviction petition
are set out in brief hereinbelow.
2. One Smt. Nirmal Kanta, wife of Shri T.R.Bhandari, filed the
above-mentioned petition under Section 13 of the 1949 Act seeking ejectment of
the respondents herein from the shop-room in question. Ejectment was sought on
the ground that the tenant had not paid the rents for the tenanted shop-room
from 2nd March, 1982, till 15th June, 1982, when the eviction petition was
filed. It was also alleged that the conduct of the tenant was a constant nuisance
not only to the landlord but also to the neighbours as well and that the
landlord wanted to construct a first floor on the demised premises, which was
being obstructed by the tenant. A separate ground as to creation of sub-tenancy was also pleaded along with
some other grounds relating to installation of electric meter and an attempt
being made by the tenant to establish his own title to the suit property. The
Rent Controller dismissed the application on 13.8.1983 and against such order
of dismissal of his petition the appellant filed an appeal before the Appellate
Authority. The Appellate Authority allowed the appeal and set aside the order
of the Rent Controller by its judgment dated 14th June, 1984. The tenant, the respondent No.1 herein, was directed to put the
landlord/appellant in possession of the tenanted premises within three months.
The respondent No.1/tenant filed Civil Revision No. 2250 of 1984 before the
High Court against the order of the Appellate Authority and the same was
allowed on the finding that by allowing a tailor, even on payment, to sit in a
part of the shop-room with his sewing machine, while retaining his possession
and rights as a tenant over the premises leased to him, the respondent
No.1/tenant did not create a sub-lease and the tailor could at best be said to
be a licensee. The High Court held that the appellant landlord had failed to
discharge his burden that there was a sub-letting of the demised premises.
3. None of the other grounds appear to have been urged on behalf of the
appellant-landlord before the High Court, which set aside the judgment of the
Appellate Authority only on the ground of alleged sub-letting. It is against
the said order of the High Court that the present Special Leave Petition has
been filed.
4. At this juncture, it may be mentioned that the sole petitioner before the
Rent Controller died during the pendency of this appeal and she was substituted
by her legal heirs in the appeal. The appellant No.1, Tilak Raj Bhandari, the
husband of the deceased Nirmal Kanta, who is an advocate, has appeared in
person in support of the appeal.
5. He urged that the High Court had erred in reversing the well-considered
judgment and order of the Appellate Authority on a wrong understanding of the
law relating to creation of sub-tenancies by holding that even if it was
established that the respondent No.1-tenant had allowed the respondent No.2, a
tailor, to sit inside a part of the demised premises with his sewing machine
for the purpose of stitching, the same would not amount to creation of a
sub-tenancy or a sub-lease. It was urged that by allowing the respondent No.2
to use a portion of the demised premises, the respondent No.1, had parted with
the exclusive possession of the said portion of the demised premises, thereby,
in fact, creating a sub-tenancy.
6. The appellant No.1 urged that during the hearing of the application filed
before the Rent Controller under Section 13 of the 1949 Act, the Rent
Controller had appointed a Local Commissioner on 15th June, 1982, to visit the
locale and to report the factual position regarding the use of the portion of
the demised premises by Lachman Singh working as a tailor and as to whether, he
had affixed his sewing machine, plied by feet, on the floor at a particular
point in the site plan. It was pointed out that the Local Commissioner had
reported that on his inspection in the presence of the parties, he found that
the tailor Master Lachman Singh was operating as a tailor from the point shown
in the site plan of the shop-room and that he had got a sewing machine plied by
feet fixed to the said spot.
7. The appellant No.1 submitted that the report of the local commissioner
had been wrongly interpreted by the High Court, inasmuch as, it amply proved
that a portion of the shop-room had been sublet to Lachhman Singh. He also
submitted that the Appellate Authority had correctly held that the
respondent-tenant was liable to be evicted on account of such sub-letting and
the High Court had erred in reversing the said finding upon holding that the
fact that the alleged sub-tenant was found sitting inside the shop-room would
not alone establish the sub-tenancy and that if any person sits in the
shop-room for augmentation of the business of the tenant the plea of
sub-tenancy could not be accepted. The High Court further observed that the
Rent Controller had arrived at the correct finding that at best Lachman Singh
was a licensee under the tenant and not a sub-tenant as alleged by the
appellant herein. The appellant submitted that the judgment of the High Court
was contrary to the law relating to licence and sub- tenancy and was liable to
be set aside and that of the Appellate Authority was liable to be restored.
8. On behalf of the respondents it was contended that in order to constitute
a sub-tenancy, one of the basic ingredients is that the tenant was required to
part with possession of the whole premises let out to him and that by allowing
a person to sit in a portion of the shop-room even if on payment of rent do not
amount to sub-letting but at best could have created a licence. It was urged
that from the evidence on record it would be amply clear that the respondent
No.1 had not parted with exclusive possession of the shoproom and had only
allowed the alleged sub-tenant to operate his sewing-machine from a portion of
the shop-room and that too for the purpose of assisting the respondent No.1 in
his cloth business.
9. It was submitted that Lachhman Singh, the alleged sub-tenant, had been
allowed to sit in the shop-room to facilitate customers in taking measurements
for the purpose of buying cloth and as a master tailor, Lachhman Singhs
job was to assist the customer to assess the amount of cloth required for a
particular purpose.
10. It was urged that even if the report of the local commissioner showed
that a sewing-machine had been affixed to the floor in a portion of the shop-
room, that was not in the nature of a sub-tenancy as alleged on behalf of the
appellant, but in order to assist the respondent No.1 in his business. It was
submitted that the Rent Controller, as also the High Court, had very correctly
assessed the situation in holding that at best it could be said that a licence
had been created by the respondent No.1 in favour of Lachman Singh in that
portion of the shop-room where the sewing-machine had been affixed and from
where Lachman Singh was operating.
11. In support of his submission learned counsel firstly relied upon the
decision of this Court in Delhi Stationers and Printers vs. Rajendra Kumar
[(1990) 2 SCC 331] wherein the meaning of sub- letting had been explained to
mean transfer of an exclusive right to enjoy the property in favour of a third
party in lieu of payment of some compensation or rent. It was observed that
parting with legal possession meant parting with possession with the right to
include and to exclude others and that mere occupation is not sufficient to
infer either sub-tenancy or parting with possession.
12. Reliance was also placed on the decision of this Court in Bharat Sales
Limited v. Life Insurance Corporation of India [(1998) 3 SCC 1] in which it was
held that sub-tenancy or sub-letting comes into existence when the tenant gives
up possession of the tenanted accommodation wholly or in part and puts another
person in exclusive possession thereof in such process. Rather, the scene is
enacted behind the back of the landlord, concealing the overt acts and
transferring possession clandestinely to a person who is an utter stranger to
the landlord. It was further observed that it is the actual, physical and exclusive
possession of that person, instead of the tenant, which ultimately reveals to
the landlord that the tenant to whom the property was let out has put some
other person into possession of that property.
13. The learned counsel for the respondent also referred to the decision of
this Court in Joginder Singh Sodhi vs. Amar Kaur [ (2005) 1 SCC 31], in which,
while dismissing the special leave petition filed by the landlord this Court
observed that as far as sub-letting was concerned, two ingredients, namely,
parting with possession and monetary consideration therefor have to be
established. It was submitted that neither of the two ingredients had been
proved in the instant case and all that was relied upon by the Appellate
Authority was the report of the local commissioner which indicated that
Lachhman Singh was operating from a portion of the shop-room where he had fixed
a feet-driven sewing machine. Regarding parting with exclusive possession
learned counsel submitted that the respondent No.1 was always in possession of
the entire shop-room and the key of the shop-room was retained by him and till
he opened the shop-room no one had access thereto. Various other decisions were
also referred to on behalf of the respondents, which need not detain us.
14. The learned counsel submitted that there was no merit in the appeal and
both the Rent Controller and the High Court had correctly dismissed the
eviction petition filed by the appellant/landlord.
15. What constitutes sub-letting has repeatedly fallen for the consideration
of this Court in various cases and it is now well-established that a
sub-tenancy or a sub-letting comes into existence when the tenant inducts a
third party/stranger to the landlord into the tenanted accommodation and parts
with possession thereof wholly or in part in favour of such third party and
puts him in exclusive possession thereof. The lessor and/or a landlord seeking
eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove
such allegation by producing proper evidence to that effect. Once it is proved
that the lessee and/or tenant has parted with exclusive possession of the
demised premises for a monetary consideration, the creation of a sub-tenancy
and/or the allegation of sub-letting stands established.
16. All the different cases cited on behalf of the parties are ad-idem on
this interpretation of the law relating to the creation of a sub-tenancy or
sub-letting. As was observed by this Court in the case of Bharat Sales Limited
(supra) the arrangement regarding the creation of a sub-tenancy or grant of a
sub-lease without the permission of the landlord has obviously to be done
behind the scene to prevent the landlord from coming to learn of such
arrangement and it is only after the landlord finds that stranger or a third
party, other than the tenant, was occupying the tenanted premises, does he
become aware of the creation of such sub-tenancy or granting of such sub-lease.
In the instant case, from the report of the Local Commissioner appointed by the
Court it stands established that the respondent No.2, Lachhman Singh, was, in
fact, operating a feet-driven sewing machine from inside the shop-room
comprising the tenanted premises. The same has been interpreted in different
ways by the Rent Controller, the Appellate Authority and thereafter by the High
Court. From the evidence that has come on record, it appears that the
respondent No.2 had been accommodated by the respondent No.1 to assist him in
his cloth business by helping customers to assess the amount of cloth required
for their particular purposes. The said activity did not give the respondent
No.2 exclusive possession for that part of the shop room from where he was
operating and where his sewing machine had been affixed. The aforesaid issue
has been correctly decided both by the Rent Controller as also the High Court.
In our view, the learned Appellate Authority has mis-construed the principles
relating to parting with exclusive possession which is one of the key
ingredients for arriving at a finding regarding the creation of a sub-tenancy
or grant of a sub-lease. Since from the report of the Local Commissioner it
only appears that the respondent No.2 was operating from a portion of the
shop-room, it is quite clear that the respondent No.1 had not parted with exclusive
possession of the tenanted premises as had been found both by the Rent
Controller and the High Court. The main ingredient of the creation of a
sub-tenancy and/or grant of a sub-lease not having been established, it may at
best be said that the respondent No.2 was a licensee under respondent No.1
which would not entitle the appellant-landlord to obtain a decree for eviction
against the respondent No.1-tenant on the ground of sub-letting.
17. Since none of the other points appear to have been urged before either
the Appellate Authority or the High Court, we are not called upon to deal with
the same.
18. The appeal accordingly fails and is dismissed.
19. There will be no order as to costs.
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