Muhammed Mustaque, J.
The tenant is the revision petitioner. This Revision is filed challenging the concurrent finding under Sections 11(2)(b) and 11(4)
(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act').
2. Though a challenge is made under Section 11(2)(b) of the Act before this Court in Revision, the learned counsel for the tenant was unable to assail the said finding. We have gone through the judgment and order passed by the courts below. We do not find any reason to interfere with the finding under Section 11(2)(b) of the Act. Accordingly, we confirm the order of eviction passed under Section 11(2)(b) of the Act.
3. The landlord, a private limited company, is the owner of the petition schedule building which is one of the rooms in a larger multi storeyed complex in Calicut. The first respondent in the Rent Control Petition, who is the revision petitioner herein, was inducted into possession of the petition schedule shop room on lease with effect from 5.10.2004, on a monthly rent of ₹2,200/-. The rent was subsequently enhanced to ₹2,640/- per month, with effect from 1.4.2007. The case of the landlord is that the first respondent/tenant created a sublease in favour of the second respondent and the second respondent is in possession of the petition schedule shop room. Both the courts below concurrently found in favour of the landlord and held that the tenant is liable to be evicted under Section 11(4)(i) of the Act.
4. Challenging the said concurrent finding by the courts below, the learned senior counsel Smt.Sumathi Dandapani argued that there is no pleading in the Rent Control Petition to the effect that the tenant has transferred possession of the building in favour of the second respondent for a consideration. It is also argued by the learned senior counsel that the landlord miserably failed to discharge the initial burden to prove exclusive transfer of possession in favour of the second respondent. Therefore, it is submitted that in the absence of any finding that the first respondent has transferred exclusive possession of the building in favour of the second respondent for a consideration, the finding rendered by the courts below is erroneous, improper and is liable to be interfered with by exercising the power of this Court under Section 20 of the Act.
5. On the other hand, the learned counsel for the landlord submits that they have specifically pleaded about transfer of possession in the notice as well as in the Rent Control Petition. He also submits that the Commission report and other evidence adduced in the case would show that the second respondent was in possession of the petition schedule shop room as first respondent has parted possession.
6. The Rent Control Court and the Rent Control Appellate Authority relied on various circumstances to conclude that first respondent has transferred possession of the petition schedule building to the second respondent. One among such evidence is that of the Commissioner. The Commissioner inspected the petition schedule building on 4.8.2011. On the first day of inspection, the petition schedule building was in closed condition. Since it was an exparte commission, the Commissioner again attempted to inspect the petition schedule building by a second time on 11.8.2011 by giving notice to the first and second respondents. At that time also, first respondent was not there in the petition schedule shop room. However, the petition schedule shop room was seen partly opened. The second respondent, the alleged sublessee, was there in the nearby shop by name Bright Electricals. Hence the Commissioner attempted to serve notice to the second respondent. However, he refused to accept the same. Thereafter, the Commissioner inspected the shop room and found therein the boxes containing CFLs of Havels company and Surya Electricals. The Commissioner also noted inscription by name 'Bright' on the frame of the glass door. The Commissioner also noted a dealership certificate in the name of Bright Enterprises. It appears that the second respondent, the alleged sublessee, informed the Commissioner that some boxes belonged to him were kept in the petition schedule building based on an understanding with the first respondent, who is the tenant. The courts below noticed the fact that when notice was sent to the first respondent in the address of the petition schedule building, the same was returned as unclaimed. However, when the same notice was addressed in the residential address of the first respondent, it was received by him. The courts below also noted the admission made by RW2, the alleged sublessee, that his father is having a business by name Bright Enterprises, in which, he is also a partner. It is also admitted that there is a shop by name Bright Electricals owned his father near to the petition schedule building. The courts below assessed the evidence in the light of the objection raised by the tenant in the counter. The tenant totally denied the allegation in the Rent Control Petition that possession of the building has been transferred to the second respondent. He also claimed that he is dealing with storing old, damaged and defective electrical goods purchased from other electrical shops. He also contended that the second respondent and the petitioner/landlord are colluding to evict him. The courts below, based on the evidence as assessed above, entered into a finding that the first respondent parted possession of the petition schedule building. It is to be noted that first respondent did not produce any licence issued by Calicut Corporation to run any business. It is also to be noted that no records have been produced by the first respondent before the courts below to show that he is running any business. On the other hand, his claim that he is dealing with storing old, damaged and defective electrical goods is belied by the Commission report. In the Commission report it is specifically stated that boxes containing CFL bearing the brand name of Havels and Surya Lights were seen kept in the petition schedule building. There is no explanation by the tenant about the goods found in the petition schedule building at the time of inspection by the Commissioner. The objection filed by the tenant is after the Commission report. Necessarily, he had an opportunity to explain about the goods found by the Commissioner at the time of inspection. Having found no valid explanation, the courts below concluded that the first respondent parted possession of the building. This is essentially a finding entered on facts and on appreciation of evidence.
7. The next question is whether the courts below were misdirected in appreciation of evidence in the light of the decisions of the Honourable Supreme Court in Dipak Banerjee v. Lilabati Chakraborty ((1987) 4 SCC 161) and Shama Prashant Raje v.
Ganpatrao and others ((2000) 7 SCC 522) and the decision of this Court in Karshaka Union v. Bahuleyan (1996 (2) KLT 747) as argued by the learned senior counsel. Relying on Dipak Banerjee's case, the learned senior counsel submits that the landlord must establish that subtenancy is created for a consideration. It is also argued that in order to prove the tenancy or subtenancy, the first ingredient that has to be established is that the alleged subtenant is in exclusive possession of the premises and the tenant retains no control over that part of the premises. The second ingredient that has to be established to prove the tenancy or subtenancy is that the right to occupy the premises must be in lieu of payment of some compensation or rent.
8. In Shama Prashant Raje's case also, the Supreme Court, while interpreting the provisions of subletting under Clauses 13(3)(ii), (iii) and (vi) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, held that there is no dispute with the preposition that the two ingredients, namely, parting with possession and some consideration therefor, had to be established. This Court in Karshaka Union's case held that in order to prove a sublease, there must be transfer of an exclusive right to enjoy the property and there must be parting of legal possession. In Delhi Stationers and Printers v. Rajendra Kumar ((1990) 2 SCC 331, the Honourable Supreme Court held that subletting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Based on this decision, the learned senior counsel argues that the courts below were misdirected in appreciating the evidence and pleadings and without having there been a transfer of exclusive possession and also failure to establish that subletting was for a consideration, the finding entered by the courts below is erroneous and unsustainable.
9. The question to be considered is whether the dictum rendered in the judgment as above have been overlooked by the courts below or not. When landlord is able to establish that the tenant is not in possession of the building while discharging his initial burden to prove presence of third party in the building, necessarily it has to be presumed that tenant has transferred possession of the building to the third party on a consideration. No doubt, the landlord has to prove his case that there is a sublease created by the tenant. The initial burden to establish this is by proving presence of persons other than the tenant in the petition schedule building. Since matters regarding relationship with the third party or nature of subletting are exclusively within the knowledge of the tenant, the burden is on the tenant to establish that transfer was not made for any consideration or to prove that there is no parting of exclusive possession. There cannot be any doubt as to the principles laid down in the judgments referred as above. The question in this case is only with regard to the burden of proof. The Rent Control Court concurrently found, by appreciating the evidence adduced and also with reference to the pleadings, that the first respondent/tenant is not in possession of the petition schedule building and he has parted the possession. Therefore, in the absence of any valid explanation by the tenant, necessarily it has to be presumed that parting of possession is exclusive and sublease is created for a consideration. The tenant instead of having an explanation of his relationship with the subtenant, went for a total denial of his relationship with the subtenant. The denial is found by the court is unsustainable.
Therefore, the initial burden of proving possession with someone other than the tenant has been discharged by the landlord. It is in the absence of any explanation by the tenant, the courts below entered into a concurrent finding that the landlord is entitled for eviction as tenant has transferred exclusive possession of the building. Therefore, even going by the decisions relied on by the learned senior counsel, we are of the view that the tenant has transferred exclusive possession of the tenanted premises and that the tenant failed to discharge the burden to prove that it was not by accepting any consideration from the second respondent. If it is shown that person other than the original tenant is in exclusive possession, the burden is on the tenant to disprove the prima facie case of subletting alleged by the landlord. The burden of proof is not on the landlord to prove that lessee has parted with legal possession. What is protected under Section 11(4)(i) is the authority of the landlord to deal with the tenanted premises. That is the reason why a tenant is given an opportunity to terminate his illegal activities by giving him a mandatory notice under the proviso to Section 11(4)(i) of the Act. Only on the failure of the tenant to terminate the objectionable part of the lease, the landlord is entitled for eviction. Therefore, the landlord need only to establish before the Rent Control Court that his authority has been infringed by the lessee by transferring his right under the lease, which he has no right to do. It was clearly found out by the courts below that the tenant had parted possession of the building and the landlord was able to establish his objectionable part of creating a sublease in terms of Section 11(4)(i) of the Act.
We do not find any merit in the Rent Control Revision. Accordingly, we dismiss the Rent Control Revision. Since this Revision arise out of eviction on the ground of sublease, we are not inclined to grant time to surrender.
(K.T.SANKARAN) Judge ahz/ (A.MUHAMED MUSTAQUE) Judge