Supreme Court of India
RAM MURTI DEVIversusPUSHPA DEVI AND OTHERS
- Citation
- 2017 INSC 604
- Decided
- 11 July 2017
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
In an eviction suit on the ground of sub‑letting, the landlord bears the burden of proving exclusive possession by a third party and monetary consideration; once proved, the burden shifts to the tenant, and here the landlord satisfied that burden, justifying eviction.
Summary
The landlord let a ground‑floor shop to the tenant and later terminated the tenancy, suing for eviction on the grounds of rent arrears and alleged sub‑letting. The landlord claimed the tenant had allowed Mohd. Ezaj Khan to occupy part of the shop and charge Rs.50 per day for watch‑repair work, while the tenant asserted that Ezaj was merely a worker. The trial court found that Ezaj was a sub‑tenant, ordered eviction and damages; the High Court reversed, holding that the landlord had not proved sub‑letting. The Supreme Court held that in an eviction suit on sub‑letting the landlord must prove exclusive possession by a third party and monetary consideration, and once that is established the burden shifts to the tenant to explain; the landlord satisfied this burden and the tenant failed to produce statutory registration evidence of Ezaj as an employee. Consequently, the Supreme Court set aside the High Court judgment, restored the trial court order, and allowed the landlord’s eviction claim, subject to a one‑year stay on the tenant’s possession upon undertaking.
Issues considered
- The landlord must prove that a third party was in exclusive possession of the premises and that possession was transferred for monetary consideration.
- Whether the tenant’s contention that the third party was a worker, not a sub‑tenant, defeats the landlord’s claim of sub‑letting.
- Whether the failure to produce registration under the Uttar Pradesh Shops and Commercial Establishments Act, 1962, creates an adverse inference that the third party was not an employee.
- The scope of Section 25 of the Provincial Small Cause Courts Act, 1887, in revisional jurisdiction.
Legislation cited
Subjects
sub‑lettingevictionburden of prooflandlord‑tenantUttar Pradesh Shops Actregistration requirementexclusive possessionrent control
Judgment
[2017] 7 S.C.R. 872
A RAM MURTI DEVI
v.
PUSHPA DEVI AND OTHERS
(Civil Appeal No. 8954 of 2017)
B JULYll,2017
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.)
Rent Control and Eviction:
Subletting - Of shop - Alleged and eviction sought - Trial
C court directed eviction holding that the tenant had sub-let partial
portion of shop to third person - In Revision, High Court set aside
judgment of trial court holding that shop was not sub-let - On
appeal, held: In a suit for eviction on the ground of sub-letting,
landlord has to prove that a third party was found in exclusive
D possession of the whole or part of rented property and that parting
of possession was for monetary consideration - The onus to prove
sub-letting is on the land-lord and if he establishes parting of
possession, the onus would shift to the tenant to explain - In the
present case, the landlord has proved that the tenant had parted
with the possession of tenanted premises partly - On the other hand
E the tenant failed to prove that the third party alleged to be in
possession of the tenanted premises was his worker - Therefore.
the tenant is liable to be evicted on the ground of sub-letting.
Allowing the appeal, the Court
HELD: 1. In a suit by the landlord for eviction of the tenant
F on the ground of sub-letting, the landlord has to prove by leading
evidence that (a) A third party was found to be in exclusive
possession of the whole or part of rented property. (b) Parting of
possession thereof was for monetary consideration. The onus to
prove sub-letting is on the landlord and if he has established
G parting of possession in favour of a third party either wholly or
partly, the onus would shift to the tenant to explain. In the event,
possession of the tenant wholly or partly is proved and the
particulars and the instances of the transactions are found
acceptable, in particular facts and circumstances of the case, it is
not impermissible for the Court to draw an inference that the
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872
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 873
transaction was entered with monetary consideration. It may not A
be possible always to give direct evidence of monetary
consideration since such transaction of sub-letting are made
between tenant and the sub-tenant behind the back of the
landlord. \Vhether, in particular facts and circumstances, landlord
has successfully discharged the burden of proving sub-tenancy B
depends on pleading and evidence in each case? [Paras 23, 24)
[886-E-H; 887-B)
2. In the present case, when the appellant pleaded that
tenant had allowed one person 'E' .to stay in a portion of the
· establishment and was realising a handsome amount of Rs. 50/-
per day, it cannot be said that there was no pleading of parting of C
possession wholly or partly as observed by the High Court.
Appellant further has clearly pleaded that the said person was
carrying a business of repairing watches, more so, when the
defendant-tenant himself admitted that 'E' was working in the
shop, lack of pleading of parting of possession as found by High D
Court is misplaced. [Para 26) [887-G]
3. The Trial Court had referred to deposition of PW.I who
had mentioned and proved that 'E' undertook the repair work of
music systems and watches and was paying at the rate of Rs. 50/
- per day. Thus, the ingredients of pleading that tenant had parted E
with the possession of shop partly, is fully proved. [Para 27] [888-
A]
4. As is evident from the judgment of the trial court, High
Court was also not right in stating that trial court had nowhere
recorded any finding that 'E' had the exclusive control or F
possession, wholly or partly, of tenanted accommodation. [Para
28] [888-B]
5. Present is not a case where trial court had considered
any irrelevant factor or has ignored any relevant factor. Trial court
had also held that although defendants-tenants claimed that 'E' G
was their worker, but they had not brought on record any evidence
to prove the same. Requisite proof of the intimation of name of
'E' had not been given, as required by statutory provisions of
Uttar Pradesh Shops & Commercial Establishments Act, 1962.
[Para 32] [890-E-F]
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874 SUPREME COURT REPORTS [2017] 7 S.C.R.
A 6. Registration under the Uttar Pradesh Shops and
Commercial Establishments Act, 1962 is a mandatory requirement
and in the Form to be submitted for registration, the name of the
employee of the shop has to be mentioned. The trial court has
observed that no document has been produced by the tenant to
B prove that the name of 'E' is intimated as employee of the shop
which is required as per above statutory requirement. The trial
court did not commit any error in drawing adverse inference
against the tenant to the effect that 'E' was not the employee of
the tenant, in view of the non-producing of any relevant document
which could have been produced by the tenant had 'E' been an
C employee of the shop. This was a valid consideration on which
trial court based its decision. Therefore, the judgment of the High
Court deserves to be set aside and that the judgment of Judge
Small Causes Court is to be restored. [Paras 37-39) (892-D-G]
7. On necessary undertaking being filed by the respondents
D before the trial court within four weeks from the date of the
judgment, the tenants shall be allowed to remain in possession
for the period of one year from the date of the judgment. [Para
40] [893-A)
Dipak Banerjee v. Lilabati Chakraborty (1987) 4 SCC
E 161 : [1987) 3 SCR 680; Smt. Rajbir Kaur and Am: v.
Mis S. Chokesiri and Co. (1989) 1 SCC 19 : [1988) 2
Suppl. SCR 310; Kala and Anr. v. Madho Parshad
Vaidya (1998) 6 SCC 573 : (1998) 1 Suppl. SCR 149;
Joginder Singh Sodhi v. Amar Kaur (2005) 1 SCC 31 :
(2004] 5 Suppl. SCR 303; Mahendra Saree
F Emporium(l/) v. G. V. Srinivasa Murthy (2005) 1 SCC
481 : [2004) 3 Suppl. SCR 931 - relied on.
Jagdish Prasad v. Smt. Angoori Devi (1984) 2 SCC
590 : [1984) 3 SCR 216; Mundri Lal v. Sushi/a
Rani(Smt) and Am: (2007) 8 SCC 609 : [2007) 10 SCR
G 99 - distinguished.
Associated Hotels of India Ltd. v. S. B. Sardar Ranjit
Singh AIR 1968 SC 933 : (1968) SCR 548; Hari
Shankar and Ors. v. Rao Girdhari Lal Chowdhury AIR
1963 SC 698 : [1962) Suppl. SCR 933 - referred to.
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 875
Case Law Reference A
[1968) SCR 548 referred to Para 15
(1984) 3 SCR 216 distinguished Para 16
(1987) 3 SCR 680 relied on Para 17
[1988) 2 Suppl. SCR 310 relied on Para 18 B
[1998) 1 Suppl. SCR 149 relied on Para 20
(2004) 5 Suppl. SCR 303 relied on Para 21
(2004) 3 Suppl. SCR 931 relied on Para 22
[1962) Suppl. SCR 933 referred to Para 30 c
(2007) 10 SCR 99 distinguishing Para 31
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8954
of2017.
From the Judgment and Order dated 08.04.2013 of the High Court D
ofJudicature at Allahabad in Civil Revision No. 134 of2013.
Ms. Aruna Gupta, Anish Maheshwari, Zain Ali Khan, Prashant
Chaudhary, Advs. for the Appellant.
S. R. Singh, Sr. Adv., Mai1gal Prasad, Mohd. Muztaba, Ms.
E
Shweta Yadav, Ms. Asha Gopalan Nair, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. This appeal has been filed against judgment of Allahabad High
Court dated 08.04.2013 by which judgment High Court while allowing F
the revision filed by the tenant set aside the order passed by Judge Small
Causes Court directing the tenant to hand over the possession of the
disputed shop to the landlord and to pay rent and damages.
3. The brief facts of the case, giving rise to this appeal are:
G
The appellant in this appeal is landlord who let out a shop situated
at ground floor of the house to tenant named Amar Nath( since deceased).
Landlord issued a notice terminating the tenancy of the tenant. Landlord
filed suit in the Court of Judge Small Causes Court praying for decree of
eviction of the tenant on the grounds of arrears of rent as well as
H
876 SUPREME COURT REPORTS [2017] 7 S.C.R.
A subletting. Appellant claimed that monthly rent was Rs. 950 per month
along with house tax and water charges. The tenant is in default of the
rent since 01.01.1995. It was further pleaded that defendant-tenant had
kept another person, namely, Mohd. Ezaj Khan, S/o Mohd. Zafar as
sub-tenant in one portion of the shop and rent is being taken at the rate
of Rs. 50 per day from him. The Ezaj Khan was undertaking the repair
B
work of the watches in the above shop. Defendant-tenant had rebutted
the averments made in the plaint, it was pleaded that rate of monthly
rent is Rs. 710/-. It was denied that tenant is in arrears of rent. It was
also mentioned in written statement that defendant-tenant had never
kept Moh. Ezaj as sub-tenant and in fact he was a worker in the shop of
C the defendant-tenant.
4. Appellant-plaintiffhad filed various documentary evidence and
in oral evidence Ram Murthi Devi PW. I, PW.2 Vineet Kumar, Pratap
Singh PW.3 and Zalim Singh PW.4 were examined. On behalf of the
defendants-tenants certain documentary evidence were filed and Kishan
D Kumar appeared as DW.1 and Dilip Kumar appeared as DW.2. Trial
Court framed several issues. Issue No. 4 was with regard to sub-tenancy,
which was to the following effect:
"4. Whether defendants have kept Shri Moh. Ezaj as a sub-
tenant at the shop in question for Rs. 50 per day or for
E consideration of some other amount. If so, its effect?"
5. Trial Court after considering the evidence on record held that
tenants were in arrears of rent and were not entitled to the benefit under
Section 20(4) of the U. P. Urban Building(Regulation of Letting, Rent
and Eviction)Act 1972 (hereinafter referred to as' Act 1972'). On Issue
F No. 4, it was held that Moh. Ezaj had been kept as sub-tenant, who was
held to be in partial possession of the shop. The suit was decreed directing
the defendant-tenant to hand over the vacant possession. The defendant-
tenant was also held liable to pay rent and damages.
6. Aggrieved by the judgment dated 21.02.2013 of Judge Small
G Causes Court, a Revision m1der Section 25 of Provincial Small Cause
Act, 1887 (hereinafter referred to as 'Act l 887')was filed by the tenant
in the High Court. The High Court vi de its impugned judgment has set
aside the judgment of the Trial Court. High Court held that tenant was
not in arrears of rent and the Trial Court committed an error in accepting
the case of the appellant that tenant had sublet to Moh. Ezaj sub-tenant.
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 877
[ASHOK BHUSHAN, J.]
7. Aggrieved by the the judgment of the High Court appellant has A
come up in this appeal. We have heard Miss Aruna Gupta, learned counsel
for the appellant and Shri S. R. Singh, learned senior counsel, assisted
by Shri Mangal Prasad Yadav for the respondents.
8. Learned counsel for the appellant has not seriously questioned
the finding of the High Court to the effact that tenant was not in arrears B
and had deposited the entire arrears of rent and damages and was entitled
to protection under Section 20(4) of the 'Act 13of1972'.
9. Learned counsel for the appellant, however, has challenged the
decision of the High Court, in so far as, the High Court held that sub-
tenancy was not proved by the landlord. It is submitted by the learned c
counsel for the appellant that there was a specific pleading regarding
sub-tenancy in favour of Moh. Ezaj and the defendants having come up
with the case that Moh. Ezaj was their worker, it was incumbent upon
them to prove that he was employed by them and was also paid salary in
which they miserably failed. It is contended that the sub-tenant was in
. possession, was a fact which was not denied. Burden lay on the tenant D
to prove that he was there in the shop not as sub-tenant but as an
employee.
10. Learned counsel for the respondents-tenants refuting the
submission of the learned counsel for the appellant contends that High
Court has rightly reversed the judgment of the Trial Court since Trial E
Court did not consider the evidence in correct perspective. There was
no proper pleading on behalfoflandlord owner. Landlord did not discharge
its burden of proving sub-tenancy in favour of Moh. Ezaj.
11. We have considered the submission oflearned counsel of the
parties and have perused the record. The statutory provisions which F
govern letting, rent and eviction in the State of U. P. is U.P. Urban
Building(Regulation of Letting, Rent and Eviction)Act 1972. Section
20(2)( e) and Section 25 which are relevant for the present case are as
follows:-
"Section 20(2)(e) reads as under: G
"20. Bar of suit for eviction of tenant except 011 specified
grounds- ......
(2) A suit for the eviction of a tenant from a building after the
determination of his tenancy may be instituted on one or more
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878 SUPREME COURT REPORTS [2017] 7 S.C.R.
A of the following grounds, namely
(e) that the tenant has sub-let, in contravention of the
provisions of Section 25, or as the case may be, of the old Act
the whole or any part of the building;
B
The above provision takes this Court lo Section 25 of Act,
1972 and it would be appropriate to notice Section 25 also,
which reads as under:
"25. Prohibition of sub-letting.-(1) No tenant shall sub-let
C the whole of the building under his tenancy.
(2) The tenant may, with the permission in writing of the
landlord and of the District Magistrate, sub-let a part of the
building.
Explanation.-For the purposes of this section-
D
(i) where the tenant ceases, within the meaning of clause (b)
of sub-section (1) or sub-section (2) of Section 12, to occupy
the building or any part thereof, he shall be deemed to have
sub-let that building or part;
(ii) lodging a person in a hotel or a lodging house shall not
E amount to sub-letting. " (emphasis added)"
12. Before we look into the judgment of the High Court, it is
necessary to refer to the evidence on record and findings returned by
Trial Court on the issue of sub-tenancy. The Trial Court have noted that
appellant had pleaded in the plaint that Moh. Ezaj had been kept as sub-
F tenant by the defendant-tenant at the rate of Rs. 501- per day. The
defendant-tenant in Para 18 of the written statement had denied the
above pleading and pleaded that Moh. Ezaj was not a sub-tenant but
was a worker of the tenant. DW. l in his deposition had admitted that
Moh. Ezaj was undertaking repair work of music systems and electronic
G watches in the shop as a worker, at the salary of Rs. 1500 per month
from the year 1995-96 to 2000, however, no accounts of salary etc.
were maintained.
13. The Trial Court after considering the pleadings of the parties
and evidence brought on record returned the findings that Moh. Ezaj
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 879
[ASHOK BHUSHAN, J.]
was proved to be a sub-tenant. It is useful to refer to the discussion of A
the Trial Court and findings:-
"lt is the specific averment of the Appellant that Shri Moh.
Ezaj had been kept as sub-tenant by the Defendants. In their
written statement, Defendants had written that the above
person was a worker in their above shop and not sub-tenant. B
It is the contention of the learned counsel for the Appellant
that as per Shop & Commercial Establishment Act or any other
enforcing Acts, Defendants had not produced any such
certificate to this effect that above Moh. Ezaj worked as
worker/skilled worker in their shop. Even it had not been C
mentioned by the Defendants in their written statement that
the above person had been working as a worker in their shop.
Suit had been filed in the year 1997 and about 15 years had
lapsed by that time, but the Defendants had not produced
any employment certificate of any worker under Shop &
Commercial Establishment Act. It is required in law that if D
presence of any person is possible as a sub-tenant on any
shop or landlord can make such a/legation, then it is
necessary for the tenant that he should get registered such
employee under the Evidence Act and make clear his bonafide.
In the present case, Defendants had failed to produce any
such evidence. Since, in the photograph, Moh. Ezaj had been E
shown sitting on the shop and the Defendants had admitted
his presence al the shop and therefore, this inference could
be drawn that he was present in the shop in the capacity of
the sub-tenant because Defendants had not proved that he is
their employee. Mere oral evidence of the Defendants had F
no significance in this regard because presence of Moh. Ezaj
should be supported by law. Defendant No. 1 had mentioned
in Para No. 11 of his examination in chief that Ezaj undertook
repairing work of music system and electronic watches and
he was a worker in the shop and he had quit the job and
gone away about 12 years before etc. In the cross- G
examination, he had stated that he used to pay the salary of
Rs. 15001- per month from the year 995-96 to 2000, but he
had not maintained the accounts of salary etc., he had not
paid income tax.
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880 SUPREME COURT REPORTS (2017] 7 S.C.R.
A Since any Salary Register or Attendance Register of Moh.
Ezaj had not been produced by the Defendant, therefore, in
my opinion, above statement of the Defendant No. 1 was not
supported by any admitted evidence and is not reliable.
Similarly, statement of the Defendant No. 2 is also not reliable.
It was not within the knowledge of the Defendant No. 2 that
B
they used to take how much money from Ezaj in respect of the
shop. Thus, this statement of the witness is insignificant. Thus,
statement of this witness is insignificant and Ezaj is proved to
be a sub-tenant."
14. High Court has reversed the judgment of the Trial Court,
c referring to the principles laid down by this Court in several judgments
regarding proof of sub-tenancy. High Court further held that the pleadings
on behalf of the plaintiff that tenant had parted away exclusive possession
of whole or part of tenanted premises is missing and further Trial cou1i
nowhere recorded any finding that Moh. Ezaj had the specific control or
D possession, wholly or partly, of the tenanted accommodation. High
Court in its judgment referred to various decisions of this Court. It is
sufficient to refer to few decisions of this Court to find out the ratio laid
down by this Court, in the context of sub-I etting and the burden ofproof,
and the manner of proving of such sub-letting.
E 15. This Court in Associated Hotels ofllldia Ltd. Vs. S. B.Sardar
Ranjit Singh, AIR 1968 SC 933 had occasion to consider a case,
wherein suit was filed by landlord for eviction of tenant from the hotel
building on the ground of sub-letting. In the above context, this Court in
Para 5 laid down the following:-
F "5 .... The onus to prove sub-letting was on the respondent.
The respondent discharged the onus by leading evidence
showing that the occupants were in exclusive possession of
the apartments for valuable consideration. The appe!!ant
chose not to rebut this prima facie evidence by proving and
exhibiting the relevant agreements. The documents formed
G part of the appellants case. The appellant had no right to
withhold them from the scrutiny of the Court. In the absence
of the best evidence of the grants, the Courts below properly
inferred sub-lettings from the other materials on the record. "
16. In Jagdish Prasad Vs. Smt. Angoori Devi, (1984) 2 SCC
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 881
[ASHOK BHUSHAN, J.]
590, which has also been referred by the High Court, this Court has A
held that merely from the presence of a person other than tenant in the
shop sub-letting cannot be presumed. Several instances in which a person
other than tenant may be found staying in the shop which does not amount
to sub-letting were enumerated. In Para 2 of the judgment following
was stated:-
B
"2 ..... Merely from the presence of a person other than the
tenant in the shop sub-letting cannot be presumed. There may
be several situations in which a person other than the tenant
may be found sitting in the shop; for instance, he may be a
customer waiting to be attended to; a distributor who may
have come to deliver his goods at the shop for sale; a creditor
c
coming for collection of the dues; a friend visiting for some
social purpose or the like. As long as control over the premises
is kept by the tenant and the business nm 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 D
does not require the Court to assume a subtenancy merely
from the fact of presence of an outsider. .... "
17. It is relevant to note that allegation of sub-letting to Moh. Ezaj
in the present case does not come in any of the examples as was
enumerated in the above case. Here allegation was that Moh. Ezaj was E
present in the shop and carrying on his own business for which, a rent of
. Rs. 50/- per day had been charged by the landlords. In Dipak Banerjee
versus Lilabati Chakraborty, (1987) 4 SCC 161, this Court has again
examined the question of proof of sub-letting. The ingredients which are
required to be proved for a sub-tenancy were pointed out in Para 6 of
the judgment which is to the following effect: F
'
"6 .... 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..... " G
18. In Smt. Rajbir Kaur and Another versus Mis S. Chokesiri
and Co., (1989) 1SCC19, while considering a case of eviction on the
ground of sub-letting, following pertinent observations were made in Para
59:
H
882 SUPREME COURT REPORTS [2017] 7 S.C.R.
A "59..... If exclusive possession is established, and the version
of the respondent as to the particular 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 is open to the respondent
B
to rebut this. Such transactions of subletting in the guise oflicences
are in their very nature , clandestine arrangements between the
tenant and the subtenant and there and there can not be direct
evidence got. It is not, unoften, a matter for legitimate inference.
The burden of making good a case of subletting is, of course, on
c 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
D
a party bearing the legal burden, shifts according as the weight of
the evidence adduced by the party during the trial... ... "
19. This Court held in the above case that transaction of sub-
letting in their very nature are clandestine arrangements between tenant
and sub-tenant and there cannot be any direct evidence and even it is a
E matter of legitimate inference. It was further held that burden of proof
of establishing fact although lays on the landlord but it may shift according
to the weight of evidence adduced by the party during the trial.
20. In Kala and Another versus ftfadho Parshad Vaidya,
(1998) 6 SCC 573, again the Court held that the onus of proof is on the
F landlord and ifhe establishes the parting of with the possession in favour
of third party, the onus would shift to the tenant to explain. In Para 16
following has been explained:
"16 .... The onus to prove sub-letting is on the landlord and if he
establishes parting of with the possession in favour of a third party,
G the onus would shift to the tenant to explain. In the instant case,
however, the landlord did not discharge the initial onus and although
it was not required, yet, the tenant explained how Appellant 2 had
the permissive possession of the shop as its Manager.... "
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 883
[ASHOK BHUSHAN, J.]
21. This Court in Joginder Singh Sodhi versus Amar Kaur, A
(2005) I SCC 31 had occasion to consider various aspects of sub-
letting. After noticing the various earlier judgments of this Court, this
Court reiterated the law in Para 13 to Para 17, which are to the following
effect:
"13. Regarding sub-letting, in our opinion, the law is well B
settled. It is observed in the leading case of Associated Hotels
of India Ltd. v. S.B. Sardar Ranjit Singh that in a suit by the
landlord for eviction of tenant on the ground of sub-letting,
the landlord has to prove by leading evidence that (i) a third
party was found to be in exclusive possession of the rented
property and (ii) parting of possession thereof was for C
monetary consideration.
14. The above principle was reiterated by this Court from
time to time. In Shama Prashant Raje v. Ganpatrao the Court
stated that on sub-letting, there is no dispute with the
proposition that the two ingredients, namely, parting with D
possession and monetary consideration therefor have to be
established.
15. Jn the instant case, a finding offact has been recorded by
the Rent Controller, confirmed by the Appellate Authority as
also by the High Court that the property was let out to E
deceased Mukand Singh and he was the tenant. A rent note
executed by the tenant also proves that fact. It was stated in
the rent note that the property was rented to him for his
business. The tenant had also given an undertaking that he
would neither part with possession of the property nor would F
permit anyone else to occupy it. A further finding was also
recorded that Respondent 2, appellant herein, was found in
exclusive possession of the property. The authorities have also
held that father and son were staying separate(v. In the light
of these facts, therefore, it can be concluded that it was proved
that the tenant had parted with possession in favour of his G
son who was found to be in exclusive possession though he
was staying separately.
16. The contention of the learned counsel for the appellant,
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884 SUPREME COURT REPORTS [2017] 7 S.C.R.
A however, is that even if it is assumed that one of the ingredients
of sub-letting was established, the second ingredient, namely,
parting of possession with "'monetary consideration" was not
established. The counsel urged that there is no evidence on
record that any amount was paid either in cash or in kind by
Respondent 2 to Respondent 1. In absence of such evidence
B
sub- tenancy cannot be said to be established and the landlady
was not entitled to get an order of eviction against the tenant.
17. We are unable to appreciate the contention. As observed
by this Court in Bharat Sales Ltd. v. Life Insu:ance
Corporation of India sub-tenancy or sub-letting comes into
c existence when the tenant gives up possession of the tenanted
accommodation, wholly or in part, and puts another person
in exclusive possession thereof This arrangement comes
about obviously under a mutual agreement or understanding
between the tenant and the person to whom the possession is
D so delivered. In this process, the landlord is kept out of the
scene .. 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, in the sense that the landlord had not let out
the premises to that person nor had he allowed or consented
E to his entering into possession of that person, instead of the
tenant, which ultimately reveals to the landlord that tenant to
whom the property was let out has put some other person into
possession of that property. In such a situation, it would be
difficult for the landlord to prove, by direct evidence, the
F contract or agreement or understanding between the tenant
and the sub-tenant. 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. Payment of rent, undoubtedly, is an essential
element of lease or sub-lease. It may be paid in cash or in
G kind or may have been paid or promised to be paid. 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. Since payment
of rent or monetary consideration may have been made
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 885
[ASHOK BHUSHAN, J.]
secretly, the law does not require such payment to be proved A
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. "
22. A Three Judge Bench in Mahendra Saree Emporium(ll) B
versus G V. Srinivasa Murthy, (2005) I SCC 481 had occasion to
consider the question of sub-letting (sub-tenancy) and question of burden
of proof. In Para 16, the Court had elaborated the concept of sub-letting
and laid down the following:
"16. The term "sub-let" is not defined in the Act - new or C
old. However, the definition of "lease" can be adopted mutatis
mutandis for defining "sub-lease". What is "lease" between
the owner of the property and his tenant becomes a sub-lease
when entered into between the tenant and tenant of the tenant,
the latter being sub-tenant qua the owner-landlord. A lease
of immovable property as defined in Section 105 of the D
Transfer of Property Act, 1882 is a transfer of a right to enjoy
such property made for a certain time for consideration of a
price paid or promised. A transfer of a right to enjoy such
property to the exclusion of all others during the term of the
lease is sine qua non of a lease. A sub-lease would imply E
parting with by the tenant of a right to enjoy such property in
favour of his sub- tenant. Different types of phraseology are
employed by different State Legislatures making provision for
eviction on the ground of sub-letting. Under Section 21(1)(/)
of the Old Act, the phraseology employed is quite wide. It
embraces within its scope sub-letting of the whole or part of F
the premises as also assignment or transfer in any other
manner of the lessees interest in the tenancy premises. The
exact nature of transaction entered into or arrangement or
understanding arrived at between the tenant and alleged sub-
tenant may not be in the knowledge of the landlord and such G
a transaction being unlawfiJl would obviously be entered into
in secrecy depriving the owner-landlord of the means of
ascertaining the facts about the same. However still, the rent
control legislation being protective for the tenant and eviction
H
886 SUPREME COURT REPORTS [2017] 7 S.C.R.
A being not permissible except on the availability of ground
·therefor having been made out to the satisfaction of the court
or the Controller, the burden of proving the availability of ihe
ground is cast on the landlord i.e. the one who seeks eviction.
In Krishnawati v. Hans Raj reiterating the view taken in
Associated Hotels of India Ltd. Delhi v. S.B. Sardar Ranjit
B
Singh this Court so noted the settled law: (SCC p.293, para
6)
"[T) he onus of proving sub-letting is on the landlord. If the
landlord prima facie shows that the occupant, who was in
exclusive possession of the premises, let out for valuable
c consideration, it would then be for the tenant to rebut the
evidence. "
Thus, in the case of sub-letting, the onus lying on the landlord
would stand discharged by adducing prima facie proof of
the fact that the alleged sub-tenant was in exclusive possession
D of the premises or, to borrow the language of Section 105 of
the Transfer of Property Act, was holding right to enjoy such
property. A presumption of sub-letting may then be raised and
would amount to proof unless rebutted...... '·'
23. From the pronouncements of this Court as noticed above,
E following statement oflaw can be culled out:
(i) In a suit by the landlord for eviction of the tenant on the ground
of sub-letting the landlord has to prove by leading evidence that
(a) A third party was found to be in exclusive possession of the
whole or part of rented property.
F
(b) Parting of possession thereof was for monetary
consideration.
(ii) The onus to prove sub-letting is on the landlord and ifhe has
established parting of possession in favour of a third party either
G wholly or partly, the onus would shift to the tenant to explain.
(iii) In the event, possession of the tenant wholly or partly is proved
and the particulars and the instances of the transactions are found
acceptable, in particular facts and circumstances of the case, it is
not impermissible for the Court to draw an inference that the
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 887 .
[ASHOK BHUSHAN, J.]
transaction was entered with monetary consideration. It may not A
be possible always to give direct evidence of monetary
consideration since such transaction of sub-letting are made
between tenant and the sub-tenant behind the back of the landlord.
24. In each case, the proof of sub-letting I sub-tenancy thus, has
to be established on the parameters of law, as laid down in the above B
cases. Whether, in particular facts and circumstances landlord has
successfully discharged the burden of proving sub-tenancy depends on
pleading and evidence in each case?
25. The, High Court in Para 24 and Para 25 has stated that in the
present case very pleading that tenant had parted away exclusive c
possession wholly or partly is missing. High Court in Para 25 has referred
to Para 4 of the plaint which is quoted below:
"25. In the present case surprisingly I find that the very pleading
is missing this necessary ingredient and statement of fact. Copy
of plaint is Annexure-1 to the affidavit filed in support of stay D
application(hereinafter referred to as the "Affidavit"). The only
averment in respect of sub-letting is contained in para 4 which
reads as under:
"4. That the deceased defendant no. 1 and defendant no. 2
beside non payment of allowed one Sri Mohd. Aizaz son of E
Mohd. Zafar as his sub-tenant without the consent of the
plaintiff of a portion of the shop in question and realizing a
handsome amount of Rs. 501- per day as rent from him and as
such the defendants have sub-let a portion of the shop to the
said Aizaz Ahmad who is carrying on the business of watch
repairs thereon." F
26. When the appellant pleaded that tenant had allowed one Moh.
Ezaj to stay in a portion of the establishment and was realising a handsome
amount of Rs. 50/- per day, we fail to see how it can be said that there
was no pleading of parting of possession wholly or partly. Appellant
further has clearly pleaded that said Ezaj was carrying a business of G
. repairing watches, more so, when the defendant-tenant himself admitted
that Moh. Ezaj was working in the shop, lack of pleading of parting of
possession as found by High Court is misplaced.
H
888 SUPREME COURT REPORTS [2017] 7 S.C.R.
A 27. The Trial Court had referred to deposition of PW. I as extracted
above, who had mentioned and proved that Moh. Ezaj undertook the
repair work of music systems and watches and was paying at the rate
of Rs. 501- per day. Thus, the ingredients of pleading that tenant had
parted with the possession of shop partly, is fully proved and High Court
erred in observing that there is no pleading to that effect.
B
28. High Court in Para 29 has further observed that Trial Court
had nowhere recorded any finding that Moh. Ezaj had the exclusive
control or possession, wholly or partly of tenanted accommodation.
29. We have carefully looked into the order of the Trial Court.
c Trial Court at Page 56 of paper book had stated as below:
" .. .It is admittedly proved that Moh. Ezaj had the partial possession
on the shop. Defendants had failed to prove that he was a servant.
Witnesses of the Appellant had specifically stated that Moh. Ezaj
had been kept as sub-tenant at the rate of Rs. 50/- per day. In my
D opinion, since Moh. Ezaj admittedly used to undertake the repairing
work of watches while sitting outside the disputed shop, therefore,
this inference would definitely be drawn that he would be paying
something to the Defendant in lieu thereof. Thus, this averment
of the witnesses of the Appellant that Moh. Ezaj had been paying
something to the Defendant at the rate of Rs. 501- per day is
E admissible."
Thus the above two reasons given by the High Court cannot be
sustained.
30. There is one more reason due to which the judgment of the
High Court deserves to be interfered with. The High Court was hearing
F
a revision under Section 25 of the 'Act 1887'. What is the scope of
Section 25 of the 'Act 1887' came for consideration before this Court
in Hari Shankar and Others versus Rao Girdhari Lal Chowdhury,
AIR 1963 SC 698, where this Court laid down following in Para 9:
"9. The section we are dealing with, is almost the same as
G
Section 25 of the Provincial Small Cause Courts Act. That
section has been considered by the High Courts in numerous
cases and diverse interpretations have been given. The powers
that it is said to confer would make a broad spectrum
commencing, at one end, with the view that only substantial
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 889
[ASHOK BHUSHAN, J.]
errors of law can be corrected under it, and ending, at the A
other, with a power of interference a little better than what an
appeal gives. It is useless to discuss those cases in some of
which the observations were probably made under compulsion
of certain unusual facts. It is sufficient to say that we consider
that the most accurate exposition of the meaning of such
B
sections is that of Beaumont, C.J. (as he then was) in Bell &
Co. Ltd. v. Waman Hemraj where the learned Chief Justice,
dealing with section 25 of the Provincial Small Cause Courts
Act, observed:
"The object of s. 25 is to enable the High Court to see that
there has been no miscarriage of justice, that the decision c
was given according to law. The section does not
enumerate the cases in which the Court may interfere in
revision, as does s.115 of the Code of Civil Procedure, and I
certainly do not propose to attempt an exhaustive definition
of the circumstances which may justify such interference; but D
· instances which readily occur to the mind are cases in which
the Court which made the order had no jurisdiction or in
which the Court has based its decision on evidence which
should not have been admitted, or cases where the
unsuccessful party has not been given a proper opportunity
of being heard, or the burden of proof has been placed on E
the wrong shoulders. Wherever the court comes to the
conclusion that the unsuccessful party has not had a proper
trial according to law, then the Court can interfere. But, in
my opinion, the Court ought not to interfere merely because it
thinks that possibly the Judge who heard the case may have F
arrived at a conclusion which the High Court would not have
arrived at. "
This observation has our full concurrence."
31. Further in Mundri Lal versus Sushi/a Rani(Smt) and
Another, (2007) 8 SCC 609 which was a case arising from Act 13 of G
1972 and a Revisional Jurisdiction under Section 25 of' Act 1887'. In
Para 22 and 23, this Court held that the jurisdiction under Section 25 of
Provincial Small Cause Courts Act, is wider than Section 115 of CPC. It
· is further held that pure finding of the fact based on appreciation of
H
890 SUPREME COURT REPORTS (2017] 7 S.C.R.
A evidence although may not be interfered but there are several
circumstances in which the Revisional Court can interfere with the finding
of fact. In Para 22 and 23 following was stated:
"22. There cannot be any doubt whatsoever that the revisional
jurisdiction of the High court under Section 25 of the
B Provincial Small Cause Courts Act is wider than Section 115
of the Code of Civil Procedure. But the fact that a revision is
provided for by the statute, and not an appeal, itself is
suggestive of the fact that ordinarily revisional jurisdiction
can be exercised only when a question of law arises.
c 23. We, however, do not mean to say that under no
circumstances finding of fact cannot be interfered therewith.
A pure finding of fact based on appreciation of evidence
although may not be interfered with but if such finding has
been arrived at upon iaking into consideration irrelevant
factors or therefor relevant fact has been ignored, the
D revisional court will have the requisite jurisdiction to interfere
with a finding offact. Applicability of the provisions of Section
2(2) of the Act may in that sense involve determination of
mixed question of law and fact. "
32. Present is not a case wherein Trial Court had considered any
E irrelevant factor or has ignored any relevant factor. It may be noticed
that Trial Court had also held that although defendants-tenants claimed
that Mohd. Ezaj was their worker but they had not brought on record
any evidence to prove the same. Requisite proof of the intimation of
name ofMohd. Ezaj had not been given, as required by statutory provisions
F of UP Shops & Commercial Establishments Act 1962.
33. It is relevant to look into the statutory provisions of Uttar
Pradesh Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 and U.P.
Dookan aur Vanijya Adhishthan Niyamavali, 1963. According to Section
4-B every owner of a shop or commercial establishment shall within
G three months of the commencement of such business or within three
months of the commencement of the Uattar Pradesh DookanAur Vanijya
Adhishthan (Sanshodhan) Adhiniyam 1976, whichever is later apply to
the Chief Inspector for registration of his shop or commercial
establishment. Section 4-B is quoted below:
fl
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 891
[ASHOK BHUSHAN, J.]
4-B.Registration.-(l)Every owner of a shop or commercial A
establishment shall within three months of the commencement
of such business or within three months of the commencement
of the Uttar Pradesh Dookan Aur Vanijya Adhishthan
(Sanshodhan) Adhiniyam, 1976, whichever is later, apply to
the Chief Inspector for registration of his shop or commercial B
establishment.
(2) Every application for registration under sub-section (1)
shall be in such form and shall be accompanied by such fees
as may be prescribed.
(3) The Chief Inspector shall, on being satisfied that the C
prescribed fee has been deposited, register the shop or
commercial establishment in the register maintained under
Section 4-A and shall issue a certificate of registration to the
owner in such form and in such manner, as may be prescribed. "
34. Rules, 1963 provide for mechanism and necessary particulars D
which are required to be sent by an owner for registration under the
Act. Rule 2A(2) provides for making an application in Form 'L' to the
Inspector concerned for registration of his shop or commercial
establishment.
35. Rule 2-A sub-rule (2) which requires making ofan application E
in Form 'L' is as follows:
"Section 2A - Form of Register to be kept by the Inspector
concerned of the shop or commercial establishment and the
fees charged for their registration and its validity
(1) ......... . F
(2) The owner of every shop or commercial establishment shall
within the period as specified in sub-section (1) of Section 4-
B of the said Act, make an application in Form "L" to the
Inspector concerned for registration of his shop or commercial
establishment. The application shall be signed by the owner G
and accompanied by a Treasury Challan/Bank Draft (crossed)
in favour of the Inspector concerned in proof of payment of
registration fee as specified below. The maximum number of
employees employed in the shop or commercial establishment
H
892 SUPREME COURT REPORTS [2017] 7 S.C.R.
A on any day during the financial year in respect of which the
registration is sought will be taken into consideration for
deciding the amount of fee leviable.
36. Form 'L' is a part of Rules, 1963, Column 9 of which is as
B follows:
"9. Names of employees:
(1) in managerial, confidential and supervisory capacity.
(2) Total number of employees."
c 37. Section 33 of the Act provides that any person, who
contravenes, or fails to comply with any of the provisions of this Act, or
of the rules made thereunder, other than those of sub-section ( 1) of
Section 20, shall be guilty of an offence under this Act. Thus, registration
under the Act, 1962 is a mandatory requirement and in the Form to be
D submitted for registration the name of the employee of the shop has to
be mentioned. Rule 2-A sub-rule(!) further mandates that owner shall
communicate in Form 'N' to the Inspector concerned any change in the
name and address of the shop or commercial establishment, name or
names of the employees or change in the number of employees within
15 days of the date of occurrence of such change.
E
38. The Trial Court has observed that no document has been
produced by the tenant to prove that the name of Mohd. EZaj is intimated
as employee of the shop which is required as per above statutory
requirement. The Trial Court did not commit any error in drawing adverse
inference against the tenant to the effect that Mohd. Ezaj was not the
F
employee of the tenant, in view of the non-producing of any relevant
document which could have been produced by the tenant had Mohd.
Ezaj been an employee of the shop.
39. The above reason was also a valid consideration on which
Trial Court based its decision. We are of the view that judgment of the
G High Court deserves to be set aside and that the judgment of Judge
Small Causes Court dated 21.2.2013 is to be restored.
40. Learned counsel for the respondents lastly prayed that shop
being with the defendants-respondents, who have been carrying on a
business for quite a long time, time of one year be allowed to the
H
RAM MURTI DEVI v. PUSHPA DEVI & ORS. 893
[ASHOK BHUSHAN, J.)
respondents to vacate the premises. We accept the aforesaid prayer of A
the learned senior counsel for the respondents and we provide that on
necessary undertaking being filed by the respondents before the Trial
Court within four weeks from today, the tenants shall be allowed to
remain in possession for the period of one year from this date.
41. The appeal is allowed accordingly. B
Kalpana K. Tripathy Appeal allowed.
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