RAM KUMAR Vs. OM NANDAN

JUDGEMENT

(1.) THIS is a defendants' second appeal in the suit for ejectment filed by the landlord and his eviction from the shop in dispute. The defendants having lost in both the Courts below have come up before this Court. In brief the relevant facts for purposes of the appeal are that the defen dant No. 1 was the tenant in the disputed shop. One Lachhman Das, father of the defendant No. 1.was a tenant in the shop in dispute through registered rent-note dated 13-10-1955. After the death of Lachhman Das, defendant No. 1 as a sole heir, became the tenant on the same terms and conditions. It is alleged by the plaintiffs that defendant No. 1 sublet the shop in dispute to defendant No. 2, Ram Kumar, without the consent and permission of the plaintiffs. A portion of the shop was also let out to one Jagdish Saran, son of Chiranji Lal, who died during the pendency of this suit. Besides these several other grounds were also raised for seeking eviction of the defendants. But basically the only point in issue before this Court is about the question of sub-tenancy. The defendant No. 3 only contested the suit and denied the allegations made by the plaintiffs. He said that originally Lachhman Das had taken the shop for the purpose of the business of the firm M/s. Lachhman Das Jagdish Saran. When Lachhman Das died, his adopted son Budhsen be came the tenant in the shop in question and he carried on the business in the name and style of the M/s. Lachhman Das Jagdish Saran which is still going on in the disputed shop. It is alleged that defendant No. 3 was a partner in the business firm M/s. Lachhman Das Jagdish Saran. It is then also pleaded that Lachhman Das was the Karta of the family and in that capacity he had taken the shop in question on rent and that the defendant was not the sub-tenant and as such the suit was liable to be dismissed. The trial Court returned a finding in favour of the plaintiffs and decreed the suit holding that defendant No. 3 was a sub-tenant of the defendant No. 1. Aggrieved against the decision, an appeal was filed. The same was also dismissed. In this manner the defendants have come up in second appeal before this Court. In this appeal, the learned counsel for the appellants has mainly argued that the findings of both the Courts below about the exclusive possession of the defendants, even though these may be findings of fact, which ordinarily cannot be disturbed, in a second appeal, yet, this by itself will not be sufficient for upholding that there was sub-tenancy. His contention is that for support ing a finding of sub-tenancy two ingredients are essential. They are firstly, exclusive possession of the alleged sub-tenant and, secondly, circumstances necessarily leading to the conclusion that the defendant No. 3 was an under- lessee of the main tenant or proof of the fact that there was a contract of tenancy between the tenant- in-chief and the alleged sub-tenants. Mr. V. K. Gupta learned counsel for the appellants has strenuously urged before me that the lower Courts have returned a finding only to the effect that defendant No. 3 was in exclusive possession of the shop in dispute but none of the Courts below have given any finding in respect of the second aspect of the matter. According to him a mere finding of exclusive possession by defen dant No. 3 cannot warrant a decision of sub-tenancy against the appellants. In view of this, the Courts below have committed an error of law, which was liable to be corrected by this Court in second appeal. Mr. B. P. Goyal, learned counsel for the respondents, however, has met this argument by urging that in the instant case circumstances are present which clearly, go to show that defendant No. 3 was an under- lessee of defen dant No. 1 and as such the concurrent findings recorded by the Courts below should not be disturbed. He further contended that although the burden of proof on the question of sub-tenancy is initially on the plaintiffs, yet the onus would be substantially shifted to the defendants, when the plaintiffs were able to establish that the alleged sub-tenant was in exclusive possession over the disputed premises and when such other circumstances were present which would be sufficient to prove the fact that the person in possession was a sub-tenant. In these circumstances it would be for the defendants to establish by cogent evidence and to explain the status of the person in posses sion to remove any doubt from the mind of the Court that the person in possession was not a sub-tenant. His further submission is that it was not necessary, however to prove the actual contract of the tenancy between the tenant-in-chief and the sub-tenant in such a case. In support of his contention the learned counsel has referred to me a case decided by this Court and reported in 1979 U. P. Rent Control case, 58 wherein relying upon an earlier decision by this Court reported in 1952 Allahabad 806 it was held that it was not necessary to establish the contract of tenancy but at the same time held that the plaintiff has to bring the evidence or other material which would raise legitimate inference that there was relationship of lessor and lessee between the tenant-in-chief and the person found to be in possession of the premises let out. In the present case one striking feature is that the tenant-in-chief who should be the person most anxious in safe-guarding his interest in the shop in dispute has taken no interest at all in defending the suit. The person who is mainly concerned with the defence of the case is the alleged sub-tenant. The second striking feature is that the defendant has come up with the defence that he was a partner of the defendant No. 1. He also took up an inconsistent plea that he was a member of the joint family of the main tenant and he was working of the family business which was neither proved nor estab lished on record. No documents pertaining to the partnership have been placed on the record. There is also nothing to show as to why and in what circumstances the defendant No. 1 has withdrawn his possession from the disputed premises. Bahikhata of the firm M/s. Lachhman Das Jagdish Saran has been placed on the record showing that the rent was being paid through money orders. When once the exclusive possession of the defendant No. 3 has been established on record it was for the defendant No. 3 to explain why and under what circumstances he had occupied the shop and if the theory taken up by the main tenant or the alleged sub-tenant was found to be untrue, then logically the conclusion should be that he had failed to dis charge the onus which had been shifted on to him after the plaintiffs had established exclusive possession of a person other than the tenant-in-chief. In Abdul Aziz v. Mohammad Yaqub 1971 R.C.J. 492 it was held that once it was found that the person, other than tenant, had been in possession, the onus of ex plaining his possession was that on the tenant. A landlord is always a stranger to agreements of sub-letting between his tenant and the sub-tenant and he has to rely on the attending circumstances to establish sub-letting by necessary inference. It is very rare that direct evidence of sub- letting would come in the hands of the landlord. Sub-tenancy, by its very nature, is a transaction which is usually entered into surreptitiously and every effort is made by the tenant-in-chief to cover up the real nature of the transaction in such a manner that the landlord or the rent control authorities may not be in a position to lay hands on the tenant-in-chief. Under these circumstances, it is only the circumstances which could prove as to whether the position of the person then in possession in the premises let out was in the capacity of a sub-tenant or merely for and on behalf of the tenant-in-chief. If there be a close relationship between the tenant-in-chief and the alleged sub-tenant one can understand that the sub-tenant might be in possession on account of that relationship. If, as in the instant case the contention of the defendant was that he was in possession in his capacity as a partner then the partnership acquires an entirely new personality and it would amount to sub-letting. If, as admitted by the con testing defendant that rent was being paid by the partnership firm, it is obvi ous that the payment of rent was not being paid by the defendant No. 1 but was being paid from the account of the firm. In this situation, it would be a clear case of sub-tenancy in which at least a part of the payment was being paid by the alleged sub-tenant, howsoever small his contribution may be in this. I have heard the learned counsel for the parties. After going through the entire evidence on record, I am convinced that the findings returned by the two Courts below on the question of sub-tenancy are substantiated on the evidence on record and there is nothing illegal or improper in those findings. In the circumstances, I find no merit in this appeal. Hence, it is dis missed with costs.