The civil revision petition is directed against the Judgment and Decree, dated 18.12.2009, passed in R.C.A.No.58 of 2006, on the file of the Principal Subordinate Court-cum-Rent Control Appellate Authority, Madurai, reversing the fair and decreetal orders, dated 04.07.2006, passed in R.C.O.P.No.29 of 2003, on the file of the Additional District Munsif Court-cum-Rent Controller, Madurai Town.
2. For the sake of convenience, the parties are referred to as per their rankings in the rent control original petition.
http://www.judis.nic.in 3
3. It is not in dispute that the petitioner is the landlord and the first respondent is the tenant under the petitioner in respect of the petition property and it is noted that the petitioner has laid the eviction petition against the first respondent as well as the second respondent on three grounds, namely, different user, act of waste and sub-lease. In respect of the grounds putforth by the petitioner for evicting the first respondent in particular from the petition property, on the ground of different user and act of waste, the same had been negatived by the Rent Controller. As against the same, it is noted that the petitioner has not preferred any challenge before the Rent Control Appellate Authority. However, the Rent Controller was pleased to order the eviction of the respondents from the petition property on the ground of sub-lease. Challenging the same, it is noted that the aggrieved first respondent had preferred the appeal before the Rent Control Appellate Authority and the Rent Control Appellate Authority was pleased to set aside the order of the eviction passed by the Rent Controller on the ground of sub- lease. Impugning the same, the present civil revision petition has been preferred.
4. The case of the petitioner, in brief, insofar as the ground of sub-lease projected by him for evicting the respondents from the petition property is that the first respondent is the tenant under him in respect of the petition property http://www.judis.nic.in 4 and the tenancy has been entered into on the basis of the unregistered lease deed, dated 01.06.2002 and the first respondent took the petition property on lease only for the specific purpose of running a hotel business on a monthly rent of Rs.1,350/-. However, the first respondent has been using the petition property for the purpose of running a dry cleaning shop under the name and style of “Naaz Dry Cleaners”, without obtaining any oral or written consent from the petitioner and further, stated that the name board newly fixed in the front portion of the petition property shows that “Naaz Dry Cleaners – Proprietor : M.S.Allaudeen”. However, the petitioner learnt that it is only the second respondent, who is the original owner of Naaz Dry Cleaners and also the second respondent is running another Naaz Dry Cleaners Shop at Door No.41/20, Yanaikal, Madurai and thus, it is evident that the first respondent has sub-let the petition property unauthorizedly without the knowledge or consent of the petitioner, to the second respondent and even though the name board shows the first respondent as the proprietor of Naaz Dry Cleaners, it is only a benami name and the real owner of the abovesaid concern is only the second respondent and accordingly, contended that the first respondent is liable to be evicted from the petition property on the ground of sub-letting the premises to the second respondent, without the oral or the written consent of the petitioner.
http://www.judis.nic.in 5
5. As regards the abovesaid case putforth by the petitioner, the first respondent resisted the same, on the footing that the case of the petitioner that the petition property had been leased out only for the purpose of running a hotel business is false and on the other hand, according to him, the petition property has been taken on lease for the non-residential purpose and he never accepted and agreed to run a particular business in the petition property and according to him, he has been doing the agency business of dry cleaners and bunk stall and the petitioner has falsely pleaded that he has sub-let the premises to the second respondent and on the other hand, from the date of the inception of the tenancy, the first respondent has been acting as the agent of Naaz Dry Cleaners and getting income on commission basis and the petitioner knowing the abovesaid facts fully well, had come forward with the false case to evict the first respondent from the petition property with a view to let out the petition property for a higher rent and as the first respondent had acted as the agent of Naaz Dry Cleaners, the head office had denoted the petition property as the branch office and therefore, disputed the case of the petitioner that he has let out the petition property to the second respondent as putforth in the petition and prayed for the dismissal of the eviction petition. http://www.judis.nic.in 6
6. On the basis of the abovesaid pleadings, the parties went for trial and it is noted that in respect of the petitioner's case, P.W.1 was examined and Exs.P1 and P2 were marked and on the side of the respondents, R.W.1 was examined and no document was exhibited.
7. As above noted, considering the rival contentions putforth by the respective parties and the submissions made and on the assessment of the materials placed on record, the Rent Controller was pleased to entertain the eviction petition preferred by the petitioner / landlord on the ground of sub- lease. As regards the case putforth by the petitioner for evicting the first respondent on the ground of act of waste and different user, the Rent Controller had rejected the petitioner's case. Challenging the order of the Rent Controller, directing him to vacate the petition property on the ground of sub- lease, the first respondent has preferred the appeal and the Rent Control Appellate Authority was pleased to set aside the eviction order of the Rent Controller. Challenging the same, the present civil revision petition has been preferred.
8. It is not in dispute that the petition property belonged to the petitioner. It is also not in dispute that the first respondent had taken the http://www.judis.nic.in 7 petition property on lease from the petitioner for the non-residential purpose. Though it is pleaded by the petitioner that the petition property had been leased out to the first respondent only for the specific purpose of running a hotel business, however, despite the resistance putforth to the abovesaid case of the petitioner, the petitioner has not placed any material worth acceptance to establish that the petition property had been leased out to the first respondent only for the specific purpose of running a hotel business. On the other hand, it is the specific case of the first respondent that he had been utilizing the petition property on lease for running various business, including the business of dry cleaners from the inception of the tenancy and despite the knowledge of the same, the petitioner has come forward with the false case that the petition property had been let out only for a specific purpose. On the basis of the materials placed on record, it is evident that the petition property had not been leased out to the first respondent for a specific purpose and on the other hand, it is seen that the petition property had been leased out to the first respondent for the non-residential purpose and accordingly, it is noted that the first respondent had been carrying on various business in the petition property as putforth by him.
9. As regards the ground of sub-lease, it is stated by the petitioner that the first respondent had sub-let the petition property to the second http://www.judis.nic.in 8 respondent for the purpose of running Naaz Dry Cleaners, without his consent and permission and therefore, the first respondent as well as the second respondent are liable to be evicted from the petition property. The second respondent has remained ex parte. However, the first respondent has vehemently resisted the abovesaid ground putforth by the petitioner for evicting him from the petition property and contended that right from the inception of the tenancy, he has been carrying on the dry cleaners business in the petition property under the name and style of “Naaz Dry Cleaners” by taking its agency and the second respondent has nothing to do with the abovesaid dry cleaners business being run in the petition property by the first respondent and therefore, the ground of sub-lease putforth by the petitioner is a myth and falsely projected only with a view to evict the first respondent from the petition property for the purpose of letting out the petition property on a higher rent.
10. In the light of the abovesaid rival contentions putforth by the respective parties, particularly, the resistance putforth by the first respondent as regards the case of sub-lease projected by the petitioner, it is evident that it is for the petitioner to establish the case of sub-lease putforth by him. As regards the abovesaid case of the petitioner, it is seen that the petitioner is only relying upon the photographs marked as Ex.P2 series and from the http://www.judis.nic.in 9 materials available on record, it is seen that there is a name board fixed in the front portion of the petition property showing the running of the dry cleaners business under the name and style of “Naaz Dry Cleaners – Proprietor : M.S.Allaudeen”. On that footing, the petitioner would contend that the first respondent, for the purpose of running the abovesaid dry cleaners business, had created a division of the petition property and let out one portion to the second respondent on sub-lease for running the dry cleaners business and retaining the other portion, has been running the bunk stall and on that footing, contended that the case of the sub-lease has been established. Furthermore, it is also putforth by the petitioner that a similar name board has been fixed in the shop of Naaz Dry Cleaners being run at Door No.41/20, Yanaikal, Maduai and when the same has not been disputed by the first respondent, as such, accordingly, it is contended that the abovesaid business had been carried on only by the second respondent in the petition property and not by the first respondent as putforth by him and on the basis of the abovesaid materials, contended that the act of sub-lease committed by the first respondent being a secret act in favour of the second respondent, the petitioner cannot be expected to produce the direct evidence with reference to the same and the abovesaid case of the petitioner could only be inferred on the basis of the materials placed by the petitioner on record and accordingly, contended that on the basis of the abovesaid materials, the Rent Controller http://www.judis.nic.in 10 has rightly accepted the petitioner's case and on the other hand, the Appellate Authority, without any basis, had refused to entertain the same and accordingly, prayed for the reversal of the order of the Rent Control Appellate Authority.
11. Per contra, it is contended by the first respondent's counsel that merely because the name board is available in the petition property showing the running of the dry cleaners business under the name and style of “Naaz Dry Cleaners”, it cannot be inferred that it is only the second respondent, who had been carrying on the business and contended that the said dry cleaners business is shown to be carried on only by the first respondent and further contended that merely because the dry cleaners business under the name and style of “Naaz Dry Cleaners” had been carried on elsewhere as putforth by the petitioner, it cannot be construed blindly that the said business is only run by the second respondent and therefore, on that footing the similar business could also have been only run by the second respondent in the petition property and not by the first respondent accordingly, contended that the ground of eviction of sub-lease projected by the first respondent is without any foundation and material and prays for the dismissal of the eviction petition. http://www.judis.nic.in 11
12. In the light of the above case projected by the petitioner for the eviction of the respondents from the petition property on the ground of sub- lease, it is settled law that to prove the case of sub-lease, initially the landlord will have to prove that the tenant has parted with the legal possession and a stranger is in the exclusive possession of the petition property. Merely because, the presence of a person is noted in a shop, that cannot be construed or amount to sub-lease and further, the position of law is that parting of the legal possession means possession with the right to include and also the right to exclude others and accordingly, it is noted that in the case of seeking eviction on the ground of sub-lease, the landlord must establish that the alleged sub-tenant is 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 persons can be included or accomodated within the premises. Resultantly, it is seen that the basic ingredient to prove the case of sub-lease is “parting with possession”. The alleged sub-lessee must have the right to include and exclude the others. If the evidence on the abovesaid aspect is lacking, the finding of sub-letting can only be considered as illegal. It could also be seen that though the arrangement between the tenant and the sub-tenant is a secret arrangement, still the burden is only upon the landlord to discharge that other than the lawful tenant, the stranger, http://www.judis.nic.in 12 namely, the sub-lessee is in the exclusive possession and enjoyment of the petition property and only on the same being established by the landlord, the burden shifts upon the tenant to disprove the same and the abovesaid position of law could be gathered from the decision relied upon by the first respondent's counsel in S.K.Raffudin and others vs. N.Yeswantha Rao and others, reported in (1997) 2 LW 66 as well as the decision relied upon by the petitioner's counsel in Mallika vs. A.P.Kathija Beevi and others, reported in 1998-1-L.W.44 as well as the decisions of the Apex Court and the other High Courts referred to in the abovecited decisions.
13. Applying the abovesaid position of law to the facts and circumstances of the present case, it has to be seen whether the petitioner has made out the ground of sub-lease for evicting the respondents from the petition property. As above noted, the petitioner mainly relies upon the photographs for sustaining his case. No doubt, the name board showing the running of the dry cleaners business is found in the petition property under the name and style of “Naaz Dry Cleaners – Proprietor : M.S.Allaudeen”. Thus, it is noted that the said dry cleaners business is not shown to be run by the second respondent and on the other hand, it is shown to be run only by the first respondent. When the first respondent is entitled to carry on any other business in the petition property, including the dry cleaners business and http://www.judis.nic.in 13 when according to him, it is only he, who had been carrying on the business on agency basis and receiving commission with reference to the same, in such view of the matter, the presence of the aboveaid name board in the petition property, by itself and in isolation, cannot be construed that the dry cleaners business had been run only by the second respondent and not by the first respondent. Apart from the abovesaid name board hanging in the petition property, there is no other material placed on the part of the petitioner to show that the abovesaid business has been run exclusively by the second respondent and consequently, it is only the second respondent, who is in the exclusive possession and enjoyment of the petition property, particularly, the portion where the dry cleaners business is being carried on. Similarly, merely because a similar business is being run under the name and style of “Naaz Dry Cleaners” at Door No.41/20, Yanaikal, Madurai, on the basis of the same, in isolation, without any material to hold that the said business is being run by the second respondent, it cannot be construed that it is only the second respondent, who is carrying on the said business in the petition property and only to mislead the petitioner, the name board has been fixed as if the first respondent is carrying on the said business. When there is no material placed on record worth acceptance on the part of the petitioner to show that the second respondent is carrying on the dry cleaners business either in the petition property or elsewhere, the similar name board of dry cleaners http://www.judis.nic.in 14 business elsewhere, by itself, cannot be taken as the basis for holding that it is only the second respondent, who is carrying on the said business. When from the materials placed on record, it is noted that it is only the first respondent, who is doing the dry cleaners business on agency basis, on the basis of the name board depicting the carrying on the said business, by itself, could not be taken for holding that the said business is being run by the second respondent and not by the first respondent without any basis as putforth by the petitioner. That apart, there is no material placed on the part of the petitioner to safely conclude that the second respondent is in the exclusive possession of the entire petition property or the portion of the petition property, where the dry cleaners business is being carried on and on that ground alone, it is found that the petitioner is not entitled to maintain the ground of eviction on sub-lease. In this connection, the petitioner examined as P.W.1, during the course of his cross-examination, has deposed that he has no document to show that the first respondent had taken the petition property on lease only for running the hotel business and though he has claimed that he could produce such documents, however, it is found that no such document has been placed by the petitioner. Furthermore, he has also deposed that in the western portion of the petition property, a shop under the name and style of Naaz Dry Cleaners is being run and in the eastern side, the first respondent is running the evening mutton stall and admitted that he http://www.judis.nic.in 15 does not know whether the first respondent is the agent of Naaz Dry Cleaners Company and further admitted that name board showing the carrying on the business of Naaz Dry Cleaners is only in the name of the first respondent. Therefore, when the petitioner has not placed any material to hold that the abovesaid business of dry cleaners carried on in the petition property is run only by the second respondent and on the other hand, when it is seen that the said business is carried on by the first respondent and the name board hanging therein also depicts the carrying on the abovesaid business only by the first respondent, in all, it is found that the petitioner has miserably failed to establish the plea of sub-lease putforth by him.
14. It is noted that the Rent Controller seems to have accepted the petitioner's case, on the footing that the first respondent has failed to establish the carrying on the agency business of Naaz Dry Cleaners by placing acceptable materials and furthermore, on the basis of the contradictions in the case projected by the first respondent that though he had pleaded that he had been carrying on the said business from the inception of the tenancy, however, during the course of his evidence, he has admitted that he had started the abovesaid business only two months ago, on that basis, proceeded to accept the petitioner's case. The abovesaid approach of the Rent Controller seems unacceptable. When the petitioner has come forward with the case of http://www.judis.nic.in 16 sub-lease for evicting the respondents from the petition property, in the light of the principles of law enunciated in the abovesaid decisions, when the initial burden is only upon the petitioner to establish his case, other than the name board hanging in the petition property and the photographs, the petitioner has not placed any other material to uphold his case and furthermore, when the petitioner has failed to establish that the abovesaid dry cleaners business carried on in the petition property is being run only by the second respondent by placing valid materials and when with reference to the same, other than the ipse dixit testimony of the petitioner, there is no other material, other than the photographs and when there is no proof to safely hold that the second respondent is put in the exclusive possession of the entire petition property or a portion of the petition property, where the dry clearers business is being carried on and thereby, the second respondent has been in the complete control of the said portion of the petition property excluding others, in such view of the matter, the Rent Controller seems to have shifted the burden upon the first respondent for upholding the petitioner's case, without any basis. No doubt, there is a contradiction in the case projected by the first respondent as regards the period during which, he has been carrying on the dry cleaners business. However, the fact remains that the dry cleaners business is being carried on only by the first respondent and there is no material contra placed by the petitioner to disbelieve the same. Similarly, merely because the name http://www.judis.nic.in 17 board describes the first respondent as the Proprietor and whereas, he has putforth the case that he has been carrying on the business on the basis of the commission agent, that inconsistency by itself, would not in any manner be sufficient to conclude that the first respondent is not carrying on the said business in the petition property and that it is only the second respondent, who is carrying on the said business in the petition property. Considering the evidence adduced by the first respondent in toto, the only inference that could be drawn is that the business of dry cleaners carried on in the petition property is being undertaken only by the first respondent and not by the second respondent and merely because the act of sub-lease is a secret arrangement made by the tenant in favour of the sub-tenant, that by itself, would not absolve the petitioner from establishing the case of sub-lease by placing acceptable and reliable evidence, at least prima facie. When as above seen the petitioner mainly relies upon the name board hanging in the petition property and the photographs in support of his case, when the abovesaid materials do not at all lend support to the case of sub-lease as above discussed, when the initial burden placed upon the petitioner had not been discharged by him in any manner whatsoever, it is noted that the Rent Controller, on an erroneous appreciation of the facts and circumstances of the case as well as the position of law as regards the case of sub-lease, shifted the burden upon the first respondent and ordered the eviction of the respondents, http://www.judis.nic.in 18 which cannot be legally sustained. Thus, it is found that the Rent Control Appellate Authority had rightly disallowed the ground of eviction putforth by the petitioner for evicting the respondents on the ground of sub-lease and in the light of the above discussions, the said determination of the Appellate Authority do not warrant any interference.
15. The petitioner's counsel, in support of his contentions, also placed reliance upon the decisions in M.R.Devarajan vs. M.Palani and another, reported in 1998 (II) CTC 415 and V.T.Asokan and another vs. Bowjiya Begam, reported in 1998-3-L.W.661. The principles of law outlined in the abovecited decisions are taken into consideration and followed as applicable to the case at hand.
16. In conclusion, the civil revision petition is dismissed with costs.