RAKESH PAL SINGH Vs. GURNAM SINGH AND ORS.

JUDGEMENT

(1.) THE petition for eviction was allowed by the two courts below on the grounds of subletting and change of user. The tenant who is aggrieved is the revision petitioner. Originally, I had passed the order dismissing the petition in the absence of the counsel for the petitioner. The order, however, was recalled on 10.03.2009, when before the dictation was concluded, the counsel appeared and sought for permission for arguments and for disposal on merits after the submissions. I had, therefore, directed that the case would be taken as not disposed of and posted it for arguments. After several adjournments, the case is being brought for hearing again.

(2.) THE learned counsel appearing on behalf of the petitioner, points out that two Courts have acted on the plea of the 2nd respondent that he was a sub -tenant under the tenant who was in active collusion with the landlord making the 2nd respondent to suffer a self -damning statement, that he was a sub -tenant. Indeed there was no form of tenancy between the 1st respondent and the 2nd respondent. The counsel makes reference to the fact that the lease was in respect of the front portion of the shop measuring 16ft. X 50 feet and he was running the business, in spare part while the 2nd respondent was admittedly a repairer. There was an admission in his evidence that he never kept his equipments within the demised premises. The counsel also read to me his evidence that he was only occupying the verandah portion immediately adjoining the shop which was a common verandah for several shops which was lying contiguously. There was a basement which the landlord himself had occupied in a measurement of about 16 ft. x 12 ft. and there was a small space adjoining the demised premises as an access to go to the basement through a staircase. The 2nd respondent was actually keeping his equipment in the staircase and no part of the building which was demised to the tenant had been sublet to him. The counsel would also argue that admittedly neither the verandah nor the staircase was a subject of lease.

(3.) THE tenant has filed the photographs showing the physical features of the property and the manner of alleged occupation to the tenant. The photographs reveal that the verandah runs across the facade of the rented premises and adjoining properties. In the portion immediately adjacent to the demised premises is a small passage leading to the basement and immediate next portion is the staircase. Neither verandah nor the staircase is a part of the demised premises. The occupation of the 2nd respondent cannot be taken to be an occupation dislodging the possession of the tenant. Even if the 2nd respondent's admission were to be that he was paying Rs. 200/ - to the tenant I will not take that to be a proof of subletting of portions of the demised premises itself. The subletting contemplates a transfer for consideration. If the tenant were to allow user of the property opposite to the shop, the vacant portion or the verandah portion I cannot take that to be a consideration for portion of the demised premises.