ANNAKUTTY Vs. PADMAVATHY AMA

JUDGEMENT

(1.) The third counter-petitioner in a rent control proceeding is the revision petitioner. The Rent Control Court, the Appellate Authority and the Revisional Court concurred in finding that a part of the leasehold has been sub-let by the tenant to the second counter petitioner which entitles the landlord to apply for eviction under Section 11(4) of the Kerala Buildings (Lease and Rent Control) Act. It is this decision that is challenged in this revision petition, filed under Section 115 CPC.

(2.) Two grounds were urged by the petitioner's counsel in support of this revision. Firstly, it was contended that on the finding of the Subordinate Tribunals that a portion of the tenancy has been sub-let to the second counter-petitioner, the applicability of Section 108 (j) of the Transfer of Property Act has been ignored or has been overlooked by the Subordinate Tribunals in ordering eviction. In other words, normally a tenant is entitled to sub-lease or sub-let and in the absence of any prohibition in the rent deed it is open to the tenant to sub-let or transfer possession. That will not entitle the landlord to terminate the tenancy or get possession of the lease-hold. Section 11(4)(i) excluding the proviso and the Explanations reads as follows :-

(3.) The next point argued in support of the revision petition is that the evidence let in this case is insufficient to hold that the tenant has sub-let a portion of the building to the second counter-petitioner. According to the petitioner's counsel all the Tribunals have come to this conclusion only on the basis of a cash bill Ext. A7 said to have been issued by the second counter petitioner to Pw. 2 the driver of Pw. 1. No doubt this Ext. A7 was issued by the second conunter-petitioner to Pw. 2 Ext. A7 shows, that as proprietor the second counter-petitioner is doing a business in this building and for some service charges he has issued that bill. Apart from Ext. A7 is denied by the second counter-petitioner. But in the light of the evidence of Pw. 2 that has been accepted by the subordinate Tribunals, it may not be open to this Court to re-examine the evidence regarding the genuineness of Ext. A7. We have to take it that Ext. A7 the landlord has proved a number of other factors in this case for proving that the second counter-petitioner is in exclusive possession of a portion of the building. In that connection the respondent's counsel relied on the fact that a notice issued before the rent control proceeding was accepted at the address of this building by the second respondent. Even the vakalath filed in this case shows the address of the second counter-petitioner as doing business in this building and there is the oral evidence of Pws. 1 and 2 in support of this case. Taking all these the Rent Control Court and the Appellate Court have right come to the conclusion that the second counter petitioner is in exclusive possession of this building and doing business on his own account. Then the further question is whether from this one fact alone the Court can draw the inference that a case of sub-lease has been made out. The respondents counsel tried to support this conclusion in the light of the facts of this case. It is not a case of the petitioner in this revision or the second counter-petitioner in the Rent Control proceeding that the second counter-petitioner is in occupation under an arrangement other than that pleaded by the landlord and the case of the landlord is that a portion of the building has been sub-let to the second counter-petitioner. When it is proved that the second counter-petitioner is in possession and the tenant has no other explanation to offer regarding the nature of the possession the Court can in the light of Section 106 of the Evidence Act accept the case of the landlord and hold that the landlord has made out a case pleaded by him. In view of that I hold that this the landlord has proved that there is a case of sub-lease. In view of that this the finding of the Rent Control Court confirmed by the Appellate Authority and the Revisional Authority do not call for interference,