REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11106 OF 2017
(Arising out of Special Leave Petition (C) NO. 7149 OF 2015)
Prem Prakash .... Appellant(s)
Versus
Santosh Kumar Jain & Sons
(HUF) and Another .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) Leave granted.
2) This appeal is directed against the final judgment and order
dated 07.11.2014 passed by the High Court of Delhi at New
Delhi in C.M. (M) No. 478 of 2014 whereby learned single
Judge of the High Court allowed the eviction petition filed by
the original owner-Respondent No. 1 herein while setting aside
the judgments and orders dated 08.09.2011 and 24.03.2014
passed by the Court of Additional Rent Controller, North Delhi
and the Rent Control Tribunal, Delhi, respectively.
1
3) Brief facts:
(a) Shri Santosh Kumar Jain- Respondent No. 1 herein filed
an application for increase of standard rent and eviction of
tenant being Eviction Petition No. 956 of 2007 before the Rent
Controller, Delhi under Section 14(1)(a) and (b) of the Delhi
Rent Control Act, 1958 (in short ‘the DRC Act’) on the ground
that the premises in question, i.e., Shop No. 16 (Private No.
15), Gali Kunjas, Ward No. IV, Dariba Kalan, Delhi 110 006
has been sub-let, assigned and otherwise parted with
possession illegally by the original tenant-the appellant herein
to his sub-tenant-Respondent No. 2 herein, who is in the
unauthorized occupation of the same and is carrying on his
own independent business and also that the original
tenant-the appellant herein is in arrears of rent from
01.01.2002.
(b) Learned Additional Rent Controller, North Delhi, vide
judgment and order dated 08.09.2011 in E.No. 02/2009
dismissed the claim of eviction while directing the appellant
herein to deposit the rent as agreed for preceding 3 (three)
years from the date of filing of the eviction petition.
2
(c) Being aggrieved by the order dated 08.09.2011,
Respondent No. 1 went in appeal before the Rent Control
Tribunal, Delhi. The Rent Control Tribunal, vide judgment
and order dated 24.03.2014 in RCT-203/2013/2011,
dismissed the appeal.
(d) The owner-Respondent No. 1 herein, aggrieved by the
judgments and orders dated 08.09.2011 and 24.03.2014, filed
a petition being C.M. (M) No. 478 of 2014 before the High
Court. Learned single Judge of the High Court, vide judgment
and order dated 07.11.2014, allowed the petition filed by the
owner-Respondent No. 1 herein.
(e) Aggrieved by the judgment and order dated 07.11.2014,
the appellant has preferred this appeal by way of special leave
before this Court.
4) Heard Mr. Braj K. Mishra, learned counsel for the
appellant-tenant and Ms. Bharati Tyagi, learned counsel for
Respondent No.2 and Mr. Satish Kumar Jain – the original
owner, Respondent No. 1 herein, argued in person.
3
Point for consideration:
5) The only point for consideration before this Court is
whether in the present facts and circumstances of the case the
order of eviction passed by the High Court was just and
proper?
Rival Submissions:
6) Learned counsel for the appellant-the tenant contended
before this Court that Respondent No. 2 herein was looking
after the entire small business affairs of the appellant herein
and is using and occupying the suit premises in the capacity
of an employee. Learned counsel further contended that the
appellant herein was paying commission by way of
cash/cheque or as per the convenience and outcome of the
business to Respondent No. 2 in lieu of his services. It is
further contended that Respondent No. 2 herein got the
business cards printed for the promotion of the business of
the appellant herein. The appellant herein is the lawful tenant
and has never parted with the possession or sublet the suit
property either to Respondent No. 2 or to any other person
and no notice of demand as alleged has been served upon him.
4
Learned counsel further contended that Respondent No. 2 is
only a friend of the appellant herein and for this reason only
he was employed and allowed to sit in the suit premises and
no business was being carried out in the name of M/s R.R.
Jewellers from the suit premises by Respondent No. 2 who is
alleged to have changed the firm’s name as “M/s Ashima
Jewellery” later on. It was further contended that even if the
original owner was having knowledge of sub-tenancy of the
suit premises in December, 2001, no action was initiated by
him to vacate the same from the sub-tenant and hence he
failed to prove that Respondent No. 2 is in exclusive
possession of the suit premises and the appellant herein has
divested himself from the physical and legal possession of the
same. Learned counsel for the appellant herein finally
contended that the present petition is not maintainable and
the High Court has committed a grave illegality in allowing the
eviction petition.
7) Shri Santosh Kumar Jain-the original owner, Respondent
No. 1 herein argued in-person and submitted that the
5
appellant herein had sub-let, assigned and parted with the
possession of the suit premises in favour of Respondent No. 2
herein, who is in illegal and unauthorized possession of the
same. Respondent No. 1 further submitted that though the
appellant herein has claimed that the Respondent No. 2 was
his employee and was being paid commission for the job
booked by him, no document has been produced on record to
show that Respondent No. 2 was being paid any salary or
commission by the appellant. Respondent No. 1 further
stressed upon the point that the sub-tenant has admitted to
have fixed a bill board under the name and style of “M/s R.R.
Jewellers” in the suit premises. Further, the sub-tenant of the
appellant herein got printed visiting cards in his name with
the address of the suit premises and the very same fact has
been admitted in the statement given by him. Respondent No.
1 further submitted that, undoubtedly, the onus of proving the
presence of other person in the suit premises is on the owner
and once it is proved, it shifts to the tenant to disapprove the
same. Respondent No. 1 finally submitted that High Court
was right in allowing the eviction petition while setting aside
6
the judgments and orders passed by the Court of Additional
Rent Controller and Rent Control Tribunal holding that the
suit premises was sub-let and the appellant herein had parted
with the possession and prayed that no interference is sought
for by this Court in the case.
Discussion:
8) It would be appropriate to reproduce Section 14 of the
DRC Act in order to arrive at a conclusion in the case which is
as under:-
“14. (1)) Notwithstanding anything to the contrary contained
in any other law or contract, no order or decree for the
recovery of possession of any premises shall be made by any
court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to
him in the prescribed manner, make an order for the
recovery of possession of the premises on one or more of the
following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the (whole
of the arrears of the rent legally recoverable from him within
two months of the date on which a notice of demand for the
arrears of rent has been served on him by the landlord in the
manner provided in Section 106 of the Transfer of Property
Act, 1882.
(b) That the tenant has, on or after the 9th day of June,
1952, sublet, assigned or otherwise parted with the
possession of the whole or any part of the premises without
obtaining the consent in writing of the landlord;…..”
[
7
9) Respondent No. 1 herein-the original owner, filed an
eviction petition on the ground that the property in question
has been sub-let by the original tenant-appellant herein to the
sub-tenant i.e., Respondent No. 2. The tenant denied the
assertion that the property has been assigned to the
sub-tenant stating that Respondent No. 2 is his friend and is
an employee who attends his customers in his absence. It was
further explained that Respondent No. 2 was working on
commission basis in order to send customers to the appellant
herein who was having a shop in an interior location from
where he does polishing and cleaning work of silver items and
for that purpose only he was allowed to sit in the suit
premises.
10) During examination, it has been admitted by the owner
that the first and only rent was received on 26.02.2002 for the
period 01.02.2001 to 31.12.2001 from the tenant. It is evident
from the record that a legal notice dated 10.05.2002 was
served upon the appellant herein that he is in arrears of rent
from 01.01.2002. Though the appellant herein-the original
8
tenant has admitted the relationship of landlord and tenant
between the parties but has denied any sub-letting to any
other person. The tenant has his small workshop nearby the
suit shop where he personally does the work in addition to
attending the customers in the premises in question. It is the
case of the appellant that Respondent No. 2 looks after the
customers of the appellant herein in his absence but the fact
of being paid by way of commission or salary has not been
proved as no evidence have been brought to substantiate this
claim. It is Respondent No. 2 whose duty is to open and close
the shop in his absence and to hand over the keys to the
appellant herein who was residing along with his family on the
first floor of the aforesaid property at the relevant time.
11) Respondent No. 1-the original owner has placed on
record two business cards which do not contain the name of
the appellant herein at all, showing the same address as that
of the property in question in order to prove that Respondent
No. 2 was doing independent business of diamond jewellery,
gold and stones. Out of two cards, one card is in the name of
9
Respondent No. 2 with the printing “Ashima Jewellery,
Diamond Jewellery, Gold & Stones”. Respondent No. 2 has
admitted by way of filing an affidavit that he was doing the
business of manufacturing of diamond jewellery, silver articles
and also silver fancy articles. He has also admitted the
printing of the cards placed on record for the purpose of
placing orders at the said address. He admitted to have doing
business in the name and style of M/s Ashima Jewellary but
denied the claim that earlier he was doing the business in the
name and style of M/s R.R. Jewellers. It was further admitted
that when he started to sit in the suit property, a bill board in
the name of M/s R.R. Jewellers was fixed in the suit property
in the year 1996.
12) A bare perusal of the visiting card of M/s Ashima
Jewellery having the name of Respondent No. 2 clearly proves
that the sub-tenant was neither an employee nor was looking
after the customers of the appellant herein in his absence but
he was carrying on his personal business under such name.
There is no point in denying the fact that why a
1
tenant will allow a person, who is working under him, to print
visiting cards in his (sub-tenant) name for the property in
question.
13) Further, the other visiting card is having the name of
“M/s R.R. Jewellers”. The alleged sub-tenant has denied the
claim in the affidavit filed before the courts below that earlier
he was doing the business in the name and style of M/s R.R.
Jewellers. The respondent-owner has brought on record the
list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.)
Ltd. wherein for R.R. Jewellers, the address mentioned is that
of the suit property and the phone number is exactly the same
as mentioned on the business card of M/s Aashima Jewellery”
i.e., ‘3901361’. Respondent No. 2 has admitted the fact of
doing business in the name of M/s Aashima Jewellery” which
is also evident from the business card used by him having the
address of the suit property and the telephone number
‘3901361’ whereas he denied to have worked under the name
and style of M/s R.R. Jewellers but the very fact is falsified by
the evidence in the form of subscribers list of Delhi Sanchaar
11
Sewa wherein the same telephone number, i.e., ‘3901361’ has
been given. Meaning thereby, Respondent No. 2 was doing
business in the suit premises independently of the appellant
herein.
14) Undoubtedly, the initial burden to prove that the
sub-tenant is in exclusive possession of the property is on the
owner, however, the onus to prove the exclusive possession of
the sub tenant is that of preponderance of probability only and
he has to prove the same prima facie only and if he succeeds
then the burden to rebut the same lies on the tenant.
15) In this regard, it is appropriate to quote a decision of this
Court in Associated Hotels of India Ltd., Delhi vs. S.B.
Sardar Ranjit Singh AIR 1968 SC 933 wherein it was held
that when eviction is sought on the ground of sub-letting, the
onus to prove 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 consideration,
it would then be for the tenant to rebut the evidence.
1
16) Again, in Kala and Anr. vs. Madho Parshad Vaidya,
(1998) 6 SCC 573, this Court reiterated the very same
principle. It was observed that the burden of proof of
sub-letting is on the landlord but once he establishes parting
of possession by the tenant to third party, the onus would
shift on the tenant to explain his possession. If he is unable to
discharge that onus, it is permissible for the court to raise an
inference that such possession was for monetary
consideration.
17) In Vaishakhi Ram & Ors. vs. Sanjeev Kumar
Bhatiani (2008) 14 SCC 356, it was held as under:-
“21. It is well settled that the burden of proving sub-letting
is on the landlord but if the landlord proves that the
sub-tenant is in exclusive possession of the suit premises,
then the onus is shifted to the tenant to prove that it was not
a case of sub-letting. Reliance can be placed on the decision
of this Court in Joginder Singh Sodhi v. Amar Kaur.
Therefore, we are in full agreement with the High Court as
well as the courts below that since Appellants 2 to 4 had
been in exclusive possession of the suit shop and Appellant
1 could not prove that it was not a case of sub-letting, the
suit shop had been sub-let by Appellant 1 in favour of
Appellants 2 to 4. Therefore, no interference can be made
with the findings arrived at by the High Court as well as the
courts below on the question of sub-letting.”
1
18) Sub-tenancy or sub-letting comes into 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
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 to
his entering into possession of that person, instead of the
tenant, which ultimately reveals to the landlord that the
tenant to whom the property was let out has put some other
person in possession of that property. In such a situation, it
would be difficult for the landlord to prove, by direct evidence,
the 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
1
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 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 secretly, the law does not require such payment to be
proved by affirmative evidence and the court is permitted to
draw its own inference upon the facts of the case.
19) In the present facts and circumstances of the case, we
are of the opinion that the original owner-respondent No. 1
herein has proved beyond doubt that the property is in
exclusive possession of the sub-tenant and the appellant
herein has not been able to deny the claim of sub-tenancy in
favour of Respondent No. 2. The absence of evidence and
failure to discharge the onus lay heavy on appellant and there
could be no presumption other than that the suit premises
1
had been sublet and parted with possession by the appellant
herein to the Respondent No. 2.
Conclusion:-
20) In view of the foregoing discussion, we are of the
considered opinion that the High Court was right in setting
aside the orders passed by the lower courts. We do not intend
to interfere in the order passed by the learned single Judge of
the High Court. There is no merit in this appeal and the
appeal is, therefore, dismissed with no order as to costs.
...…………….………………………J.
(R.K. AGRAWAL)
.…....…………………………………J.
(ASHOK BHUSHAN)
NEW DELHI;
AUGUST 30, 2017.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11106 OF 2017
(Arising out of Special Leave Petition (C) NO. 7149 OF 2015)
Prem Prakash .... Appellant(s)
Versus
Santosh Kumar Jain & Sons
(HUF) and Another .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) Leave granted.
2) This appeal is directed against the final judgment and order
dated 07.11.2014 passed by the High Court of Delhi at New
Delhi in C.M. (M) No. 478 of 2014 whereby learned single
Judge of the High Court allowed the eviction petition filed by
the original owner-Respondent No. 1 herein while setting aside
the judgments and orders dated 08.09.2011 and 24.03.2014
passed by the Court of Additional Rent Controller, North Delhi
and the Rent Control Tribunal, Delhi, respectively.
1
3) Brief facts:
(a) Shri Santosh Kumar Jain- Respondent No. 1 herein filed
an application for increase of standard rent and eviction of
tenant being Eviction Petition No. 956 of 2007 before the Rent
Controller, Delhi under Section 14(1)(a) and (b) of the Delhi
Rent Control Act, 1958 (in short ‘the DRC Act’) on the ground
that the premises in question, i.e., Shop No. 16 (Private No.
15), Gali Kunjas, Ward No. IV, Dariba Kalan, Delhi 110 006
has been sub-let, assigned and otherwise parted with
possession illegally by the original tenant-the appellant herein
to his sub-tenant-Respondent No. 2 herein, who is in the
unauthorized occupation of the same and is carrying on his
own independent business and also that the original
tenant-the appellant herein is in arrears of rent from
01.01.2002.
(b) Learned Additional Rent Controller, North Delhi, vide
judgment and order dated 08.09.2011 in E.No. 02/2009
dismissed the claim of eviction while directing the appellant
herein to deposit the rent as agreed for preceding 3 (three)
years from the date of filing of the eviction petition.
2
(c) Being aggrieved by the order dated 08.09.2011,
Respondent No. 1 went in appeal before the Rent Control
Tribunal, Delhi. The Rent Control Tribunal, vide judgment
and order dated 24.03.2014 in RCT-203/2013/2011,
dismissed the appeal.
(d) The owner-Respondent No. 1 herein, aggrieved by the
judgments and orders dated 08.09.2011 and 24.03.2014, filed
a petition being C.M. (M) No. 478 of 2014 before the High
Court. Learned single Judge of the High Court, vide judgment
and order dated 07.11.2014, allowed the petition filed by the
owner-Respondent No. 1 herein.
(e) Aggrieved by the judgment and order dated 07.11.2014,
the appellant has preferred this appeal by way of special leave
before this Court.
4) Heard Mr. Braj K. Mishra, learned counsel for the
appellant-tenant and Ms. Bharati Tyagi, learned counsel for
Respondent No.2 and Mr. Satish Kumar Jain – the original
owner, Respondent No. 1 herein, argued in person.
3
Point for consideration:
5) The only point for consideration before this Court is
whether in the present facts and circumstances of the case the
order of eviction passed by the High Court was just and
proper?
Rival Submissions:
6) Learned counsel for the appellant-the tenant contended
before this Court that Respondent No. 2 herein was looking
after the entire small business affairs of the appellant herein
and is using and occupying the suit premises in the capacity
of an employee. Learned counsel further contended that the
appellant herein was paying commission by way of
cash/cheque or as per the convenience and outcome of the
business to Respondent No. 2 in lieu of his services. It is
further contended that Respondent No. 2 herein got the
business cards printed for the promotion of the business of
the appellant herein. The appellant herein is the lawful tenant
and has never parted with the possession or sublet the suit
property either to Respondent No. 2 or to any other person
and no notice of demand as alleged has been served upon him.
4
Learned counsel further contended that Respondent No. 2 is
only a friend of the appellant herein and for this reason only
he was employed and allowed to sit in the suit premises and
no business was being carried out in the name of M/s R.R.
Jewellers from the suit premises by Respondent No. 2 who is
alleged to have changed the firm’s name as “M/s Ashima
Jewellery” later on. It was further contended that even if the
original owner was having knowledge of sub-tenancy of the
suit premises in December, 2001, no action was initiated by
him to vacate the same from the sub-tenant and hence he
failed to prove that Respondent No. 2 is in exclusive
possession of the suit premises and the appellant herein has
divested himself from the physical and legal possession of the
same. Learned counsel for the appellant herein finally
contended that the present petition is not maintainable and
the High Court has committed a grave illegality in allowing the
eviction petition.
7) Shri Santosh Kumar Jain-the original owner, Respondent
No. 1 herein argued in-person and submitted that the
5
appellant herein had sub-let, assigned and parted with the
possession of the suit premises in favour of Respondent No. 2
herein, who is in illegal and unauthorized possession of the
same. Respondent No. 1 further submitted that though the
appellant herein has claimed that the Respondent No. 2 was
his employee and was being paid commission for the job
booked by him, no document has been produced on record to
show that Respondent No. 2 was being paid any salary or
commission by the appellant. Respondent No. 1 further
stressed upon the point that the sub-tenant has admitted to
have fixed a bill board under the name and style of “M/s R.R.
Jewellers” in the suit premises. Further, the sub-tenant of the
appellant herein got printed visiting cards in his name with
the address of the suit premises and the very same fact has
been admitted in the statement given by him. Respondent No.
1 further submitted that, undoubtedly, the onus of proving the
presence of other person in the suit premises is on the owner
and once it is proved, it shifts to the tenant to disapprove the
same. Respondent No. 1 finally submitted that High Court
was right in allowing the eviction petition while setting aside
6
the judgments and orders passed by the Court of Additional
Rent Controller and Rent Control Tribunal holding that the
suit premises was sub-let and the appellant herein had parted
with the possession and prayed that no interference is sought
for by this Court in the case.
Discussion:
8) It would be appropriate to reproduce Section 14 of the
DRC Act in order to arrive at a conclusion in the case which is
as under:-
“14. (1)) Notwithstanding anything to the contrary contained
in any other law or contract, no order or decree for the
recovery of possession of any premises shall be made by any
court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to
him in the prescribed manner, make an order for the
recovery of possession of the premises on one or more of the
following grounds only, namely:-
(a) that the tenant has neither paid nor tendered the (whole
of the arrears of the rent legally recoverable from him within
two months of the date on which a notice of demand for the
arrears of rent has been served on him by the landlord in the
manner provided in Section 106 of the Transfer of Property
Act, 1882.
(b) That the tenant has, on or after the 9th day of June,
1952, sublet, assigned or otherwise parted with the
possession of the whole or any part of the premises without
obtaining the consent in writing of the landlord;…..”
[
7
9) Respondent No. 1 herein-the original owner, filed an
eviction petition on the ground that the property in question
has been sub-let by the original tenant-appellant herein to the
sub-tenant i.e., Respondent No. 2. The tenant denied the
assertion that the property has been assigned to the
sub-tenant stating that Respondent No. 2 is his friend and is
an employee who attends his customers in his absence. It was
further explained that Respondent No. 2 was working on
commission basis in order to send customers to the appellant
herein who was having a shop in an interior location from
where he does polishing and cleaning work of silver items and
for that purpose only he was allowed to sit in the suit
premises.
10) During examination, it has been admitted by the owner
that the first and only rent was received on 26.02.2002 for the
period 01.02.2001 to 31.12.2001 from the tenant. It is evident
from the record that a legal notice dated 10.05.2002 was
served upon the appellant herein that he is in arrears of rent
from 01.01.2002. Though the appellant herein-the original
8
tenant has admitted the relationship of landlord and tenant
between the parties but has denied any sub-letting to any
other person. The tenant has his small workshop nearby the
suit shop where he personally does the work in addition to
attending the customers in the premises in question. It is the
case of the appellant that Respondent No. 2 looks after the
customers of the appellant herein in his absence but the fact
of being paid by way of commission or salary has not been
proved as no evidence have been brought to substantiate this
claim. It is Respondent No. 2 whose duty is to open and close
the shop in his absence and to hand over the keys to the
appellant herein who was residing along with his family on the
first floor of the aforesaid property at the relevant time.
11) Respondent No. 1-the original owner has placed on
record two business cards which do not contain the name of
the appellant herein at all, showing the same address as that
of the property in question in order to prove that Respondent
No. 2 was doing independent business of diamond jewellery,
gold and stones. Out of two cards, one card is in the name of
9
Respondent No. 2 with the printing “Ashima Jewellery,
Diamond Jewellery, Gold & Stones”. Respondent No. 2 has
admitted by way of filing an affidavit that he was doing the
business of manufacturing of diamond jewellery, silver articles
and also silver fancy articles. He has also admitted the
printing of the cards placed on record for the purpose of
placing orders at the said address. He admitted to have doing
business in the name and style of M/s Ashima Jewellary but
denied the claim that earlier he was doing the business in the
name and style of M/s R.R. Jewellers. It was further admitted
that when he started to sit in the suit property, a bill board in
the name of M/s R.R. Jewellers was fixed in the suit property
in the year 1996.
12) A bare perusal of the visiting card of M/s Ashima
Jewellery having the name of Respondent No. 2 clearly proves
that the sub-tenant was neither an employee nor was looking
after the customers of the appellant herein in his absence but
he was carrying on his personal business under such name.
There is no point in denying the fact that why a
1
tenant will allow a person, who is working under him, to print
visiting cards in his (sub-tenant) name for the property in
question.
13) Further, the other visiting card is having the name of
“M/s R.R. Jewellers”. The alleged sub-tenant has denied the
claim in the affidavit filed before the courts below that earlier
he was doing the business in the name and style of M/s R.R.
Jewellers. The respondent-owner has brought on record the
list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.)
Ltd. wherein for R.R. Jewellers, the address mentioned is that
of the suit property and the phone number is exactly the same
as mentioned on the business card of M/s Aashima Jewellery”
i.e., ‘3901361’. Respondent No. 2 has admitted the fact of
doing business in the name of M/s Aashima Jewellery” which
is also evident from the business card used by him having the
address of the suit property and the telephone number
‘3901361’ whereas he denied to have worked under the name
and style of M/s R.R. Jewellers but the very fact is falsified by
the evidence in the form of subscribers list of Delhi Sanchaar
11
Sewa wherein the same telephone number, i.e., ‘3901361’ has
been given. Meaning thereby, Respondent No. 2 was doing
business in the suit premises independently of the appellant
herein.
14) Undoubtedly, the initial burden to prove that the
sub-tenant is in exclusive possession of the property is on the
owner, however, the onus to prove the exclusive possession of
the sub tenant is that of preponderance of probability only and
he has to prove the same prima facie only and if he succeeds
then the burden to rebut the same lies on the tenant.
15) In this regard, it is appropriate to quote a decision of this
Court in Associated Hotels of India Ltd., Delhi vs. S.B.
Sardar Ranjit Singh AIR 1968 SC 933 wherein it was held
that when eviction is sought on the ground of sub-letting, the
onus to prove 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 consideration,
it would then be for the tenant to rebut the evidence.
1
16) Again, in Kala and Anr. vs. Madho Parshad Vaidya,
(1998) 6 SCC 573, this Court reiterated the very same
principle. It was observed that the burden of proof of
sub-letting is on the landlord but once he establishes parting
of possession by the tenant to third party, the onus would
shift on the tenant to explain his possession. If he is unable to
discharge that onus, it is permissible for the court to raise an
inference that such possession was for monetary
consideration.
17) In Vaishakhi Ram & Ors. vs. Sanjeev Kumar
Bhatiani (2008) 14 SCC 356, it was held as under:-
“21. It is well settled that the burden of proving sub-letting
is on the landlord but if the landlord proves that the
sub-tenant is in exclusive possession of the suit premises,
then the onus is shifted to the tenant to prove that it was not
a case of sub-letting. Reliance can be placed on the decision
of this Court in Joginder Singh Sodhi v. Amar Kaur.
Therefore, we are in full agreement with the High Court as
well as the courts below that since Appellants 2 to 4 had
been in exclusive possession of the suit shop and Appellant
1 could not prove that it was not a case of sub-letting, the
suit shop had been sub-let by Appellant 1 in favour of
Appellants 2 to 4. Therefore, no interference can be made
with the findings arrived at by the High Court as well as the
courts below on the question of sub-letting.”
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18) Sub-tenancy or sub-letting comes into 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
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 to
his entering into possession of that person, instead of the
tenant, which ultimately reveals to the landlord that the
tenant to whom the property was let out has put some other
person in possession of that property. In such a situation, it
would be difficult for the landlord to prove, by direct evidence,
the 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
1
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 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 secretly, the law does not require such payment to be
proved by affirmative evidence and the court is permitted to
draw its own inference upon the facts of the case.
19) In the present facts and circumstances of the case, we
are of the opinion that the original owner-respondent No. 1
herein has proved beyond doubt that the property is in
exclusive possession of the sub-tenant and the appellant
herein has not been able to deny the claim of sub-tenancy in
favour of Respondent No. 2. The absence of evidence and
failure to discharge the onus lay heavy on appellant and there
could be no presumption other than that the suit premises
1
had been sublet and parted with possession by the appellant
herein to the Respondent No. 2.
Conclusion:-
20) In view of the foregoing discussion, we are of the
considered opinion that the High Court was right in setting
aside the orders passed by the lower courts. We do not intend
to interfere in the order passed by the learned single Judge of
the High Court. There is no merit in this appeal and the
appeal is, therefore, dismissed with no order as to costs.
...…………….………………………J.
(R.K. AGRAWAL)
.…....…………………………………J.
(ASHOK BHUSHAN)
NEW DELHI;
AUGUST 30, 2017.
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