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Abdul Khader v. Ali
Case Summary — K.S. Radhakrishnan, J.
Factual and Procedural Background
The revision arises from an eviction dispute under the Kerala Buildings (Lease and Rent Control) Act ("the Act"). The landlord (petitioner before lower courts) sought eviction against two counter petitioners under Sections 11(2)(b) and 11(4)(i). The Rent Control Court dismissed the eviction petition, holding that the ground of subletting was not established. On appeal, the Appellate Authority reversed that finding and allowed eviction under Section 11(4)(i). The second counter petitioner (the present revision petitioner) challenged the Appellate Authority's decision by way of civil revision.
Relevant factual contentions (as presented in the opinion): - Landlord produced a written rent deed (Ext. A1 dated 7.2.1994) purporting to show that the first counter petitioner was the tenant of the schedule building at a monthly rent of Rs. 700/-. The rent deed purportedly prohibited sublease. - Landlord alleged the first counter petitioner sublet the premises to the second counter petitioner and relied on a plaint in O.S. No. 350 of 1998 and an injunction order to learn of the alleged subletting. Landlord sent a registered notice dated 30.6.1998 to the first counter petitioner (with copy to the second). - The second counter petitioner denied being a sublessee and claimed instead that he had an oral lease directly from the landlord from March 1994 (initial rent alleged Rs. 600, later increased to Rs. 1,250). He asserted he invested in the business and produced various documents (Exts. B1–B10) and evidence (RW.1) to support his position. - The landlord produced Exts. A1, A2, A3, A8(a) and A8(b) and examined himself as P.W.1 and P.W.2 (witness to Ext. A1) to prove Ext. A1. The first counter petitioner did not give oral evidence.
Legal Issues Presented
- Whether the landlord established that there was a landlord-tenant relationship between the landlord and the first counter petitioner (i.e., the validity and evidential weight of Ext. A1).
- Whether the landlord proved that the first counter petitioner sublet the premises to the second counter petitioner such that eviction under Section 11(4)(i) of the Act was permissible.
- Whether the Appellate Authority's reversal of the Rent Control Court's finding and its order for eviction under Section 11(4)(i) was legally sustainable given the evidentiary record and applicable burden of proof principles.
Arguments of the Parties
Second Counter Petitioner's (Revision Petitioner) Arguments
- The Appellate Authority erred in finding that there was a sublease of the schedule shop room.
- There was no material to show a landlord-tenant relationship between the landlord and the first counter petitioner, nor that the first counter petitioner had subleased to the second counter petitioner.
- Reliance was placed on precedent (Resham Singh v. Raghbir Singh) to support the contention regarding proof required for subletting.
- Submitted that, since the landlord failed to establish a landlord-tenant relationship with the first counter petitioner, the second counter petitioner must be treated either as the tenant of the landlord or as a trespasser, but not as a sublessee.
Landlord's Arguments
- The Appellate Authority was justified in finding that the ground of sublease was established and that eviction under Section 11(4)(i) should be sustained.
- Relied on the rent deed (Ext. A1) and testimony of P.W.1 and P.W.2 to establish the tenancy relationship with the first counter petitioner and subsequent subletting to the second counter petitioner.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Resham Singh v. Raghbir Singh ((1999) 7 SCC 263) | Referenced for the principle that the conclusion on subletting is a conclusion on a question of law derived from findings on the materials on record (in context of possession and consideration). | The court relied on the principle to treat the question of subletting as one deriving from factual findings and to examine whether the requisite evidence supported such a conclusion. |
| Raghuvar Dayal v. Hargovind (AIR 1958 Rajasthan 287) | Cited by counsel for the revision petitioner; the opinion records the citation but does not state the specific principle from this case. | No specific application of a principle from this case is recorded in the opinion beyond noting counsel's reliance. |
| Ratanlal Ghelabhai v. Amarsing Rubsing (AIR 1929 Bombay 467) | Cited by counsel for the revision petitioner; the opinion records the citation but does not specify the principle relied upon. | No specific application of a principle from this case is recorded in the opinion beyond noting counsel's reliance. |
| Arumu Khan v. Rajasekharan (1999 (3) KLT 502) | Held that the initial burden to prove a transfer of possession or subletting is on the landlord. | The court reiterated this burden principle and used it as part of the framework to assess whether the landlord had proved subletting or a transfer of exclusive possession. |
| Kalaaiul another v. Madho Parshad Vaidya ((1998) 6 SCC 573) | Applied for the principle that the onus to prove subletting is on the landlord and that if parting with possession is proved the onus shifts to the tenant to explain. | The court cited the decision (along with Benjamin Premanand Rawade) to explain how the burden of proof operates in subletting cases and to guide the evidentiary assessment. |
| Benjamin Premanand Rawade v. Anil Joseph Rawade ((1998) 9 SCC 688) | Used to support the proposition regarding onus: landlord must prove subletting and parting of possession; once shown, burden shifts to the tenant. | The court cited this decision to articulate the allocation of burden and to evaluate whether the landlord had discharged the initial onus in the present case. |
| Devikumar v. Swaranlata ((1996) 1 SCC 25) | Referenced for the view that conclusion on subletting is derived from factual findings (similar to Resham Singh). | The court used this authority (with Resham Singh) to treat subletting as a mixed question where findings on evidence determine the legal conclusion. |
| Shama Prashant Raje v. Ganpatrao ((2000) 7 SCC 522) | Reiterated that to establish subletting two ingredients must be proved: (1) relationship of lessee and lessor between tenant and subtenant; and (2) exclusive parting of possession by the tenant in favour of the subtenant for consideration. | The court applied this two-ingredient test explicitly to the facts, assessing whether the landlord had proved a lessee/lessor relationship between the first and second counter petitioners and whether exclusive possession had been parted for consideration. |
Court's Reasoning and Analysis
The court structured its analysis around the scope of Section 11(4)(i) of the Act and established burden-of-proof principles derived from earlier decisions:
- The court first articulated Section 11(4)(i) (eviction where tenant transfers rights under the lease or sublets without landlord's consent) and the statutory requirement that a registered notice be sent before making an application under the clause (as provided in the Act).
-
The court surveyed relevant precedent establishing that:
- The initial burden to prove transfer of possession or subletting lies on the landlord.
- If the landlord proves parting with possession in favour of a third party, the onus shifts to the tenant to explain the nature of that third party's occupation.
- To establish subletting, two elements must be shown: (a) a lessee-lessor relationship between tenant and alleged subtenant; and (b) exclusive parting of possession by the tenant to the subtenant for consideration.
-
Applying these principles, the court examined whether the landlord established a landlord-tenant relationship with the first counter petitioner via Ext. A1:
- P.W.1 (landlord) and P.W.2 (witness to Ext. A1) testified that the first counter petitioner wrote the rent deed, but the first counter petitioner himself did not give evidence.
- The court noted close personal relationships: P.W.2 was a close associate of the landlord, and the first counter petitioner was a close relative (marriage connection) of the landlord. The court also observed that the stamp paper for Ext. A1 was procured 35 km away in Kothamangalam, not local to Alwaye where the parties resided and the premises were located.
- No evidence was produced (e.g., permits or licences) to show that the first counter petitioner conducted the alleged wholesale rice business at the premises as claimed in the petition. The court found these circumstances indicative of collusion and of Ext. A1 being a created document rather than reliable proof of tenancy.
- On this basis, the court concluded that the landlord did not establish a landlord-tenant relationship between himself and the first counter petitioner.
-
The court then evaluated whether the landlord proved a sublease from the first counter petitioner to the second counter petitioner:
- The landlord failed to produce evidence showing the sublessee (second counter petitioner) had exclusive possession or that a lessee-lessor relationship existed between the first and second counter petitioners for consideration.
- P.W.1's oral evidence did not demonstrate exclusive transfer of possession, and the first counter petitioner did not give oral evidence to explain or support a subletting claim.
- Given the landlord's failure to discharge the initial onus, and the absence of explanatory evidence by the alleged tenant (first counter petitioner), the court held that the necessary ingredients for subletting under Section 11(4)(i) were not satisfied.
-
Finally, the court considered the second counter petitioner's claim that he was a direct tenant of the landlord under an oral lease:
- The second counter petitioner produced evidence (Ext. B3 series: profession tax receipts) and oral testimony indicating possession and a practice by the landlord of letting out other shop rooms on oral agreement. The landlord did not produce rent deeds for other rooms nor evidence of rent payment by the first counter petitioner to the landlord.
- The second counter petitioner had deposited Rs. 31,270 towards rent arrears and the landlord accepted that amount; the first counter petitioner had not made such deposits.
- These facts, the court found, positively supported that the second counter petitioner either was a tenant of the landlord (under an oral lease) or, at the least, not shown to be a sublessee under the first counter petitioner.
On the whole record and applying the precedent-based burden allocation and the two-ingredient test for subletting, the court concluded the landlord had not discharged the burden to establish subletting as required for eviction under Section 11(4)(i).
Holding and Implications
Holding: The Civil Revision Petition was allowed and the order of the Appellate Authority (which had allowed eviction under Section 11(4)(i)) was set aside.
Implications:
- The direct effect is that the Appellate Authority's decision ordering eviction under Section 11(4)(i) is overturned; the landlord did not establish the requisite subletting to justify eviction on that ground.
- The court concluded that there was no satisfactory evidence of a landlord-tenant relationship between the landlord and the first counter petitioner and no evidence that the second counter petitioner was a sublessee; the second counter petitioner may be a tenant under an oral lease or, alternatively, could be a trespasser, but the court did not order eviction on the subletting ground.
- The opinion does not purport to lay down a novel principle of law beyond applying settled authorities on burden and the elements required to establish subletting; no new broad precedent is announced in the text of the opinion beyond its factual conclusions in this case.
K.S Radhakrishnan, J.:— Revision petitioner, the alleged sub lessee, was the second counter petitioner before the Rent Control Court Eviction was sought for against the counter petitioners under Ss. 1l(2)(b) and 1l(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (in short ‘the Act’). Rent Control Court dismissed the petition holding that ground of subletting was not established. On appeal by the landlord, Appellate Authority reversed the finding of the Rent Control Court and allowed eviction under S. 1l(4)(i).
2. For the disposal of this case, we will refer to the parties according to their status before the Rent Control Court. The landlord submitted that the petition schedule building was rented out to the first counter petitioner on a monthly rent of Rs. 700/- as per the rent deed, Ext. A1 dated 7.2.1994 Petitioner landlord stated that the first counter petitioner was conducting a wholesale business in rice and later conducted business in coir, coir mattress and gunny bags etc. Rent deed prohibited sub lease. Petitioner came to know that the first counter petitioner had subleased the building to the second counter petitioner on receipt of a copy of the plaint in O.S No. 350 of 1998 of the Munsiff s Court, Alwaye and an order of prohibitory injunction restraining him from forcefully evicting the second counter petitioner from the petition schedule building. Petitioner then sent a registered notice dated 30.6.1998 to the first counter petitioner for terminating the sub lease with a copy to the second counter petitioner. The second counterpetitioner replied on 31.7.1998 denying sublease and stated that the shop building was leased out to him by the landlord himself. Further it was also stated that the second counter is conducting a stationery shop investing huge amount in the business. The landlord then approached the Rent Control Court for eviction under S. ll(2)(b) and 1l(4)(i) of the Act. Landlord placed reliance on Ext. A1 to prove the tenancy relationship between him and the first counter petitioner. P.W 2 was examined to prove Ext. A1 document. Landlord got himself examined as P.W 1. Apart from Exts. Al, A2 and A3, A8(a) and A8(b) were also produced.
3. First counter petitioner filed objections denying sublease. He stated that while he was conducting business he fell ill, consequently allowed the second counter petitioner to run the business. Second counter petitioner has no right over the tenanted premises and that the first counter petitioner is really the tenant. Counter statement was filed by the second counter petitioner. It was alleged that the petition was filed by the landlord in collusion with the first counter petitioner so as to evict the second counter petitioner. It was alleged that Ext. Al is a fabricated document created to show that there was landlord tenant relationship between the petitioner and the first counter petitioner. Further it was stated that there is no lessor lessee relationship between the counter petitioners. Tenanted premises was taken out on oral lease by the second counter petitioner from the petitioner landlord in March 1994 for conducting business in stationery items. When the building was taken on rent, monthly rent was fixed at Rs. 600/- which was enhanced to Rs. 1,250/-. Further it was stated that the landlord is staying very close to the petition schedule building has been a regular visitor to the shop building. Landlord demanded exorbitant rent which the second counter petitioner could not afford which led to the filing of the present petition in collusion with the first counter petitioner describing him as a sub lessee. It was stated that the second counter petitioner had paid off the rent in full personally to the landlord who is staying very close to the tenanted premises. First counter petitioner is happened to be a close relation of the petitioner landlord and they created Ext. A1 so as to oust the second counter petitioner. In order to establish his case second counter petitioner produced Exts. B1 to B10 documents and got himself examined as RW. 1. First counter petitioner has not given any oral evidence and did not pursue the matter further.
4. We heard counsel on either side at length.
5. Sri. K.P Sreekumar, counsel appearing for the second counter petitioner - revision petitioner herein, submitted that the Appellate authority has committed a grave error in finding that there was sub lease of the schedule shop room. Counsel submitted there is no material to show that there was landlord tenant relationship between the petitioner and the first counter petitioner and that first counter petitioner had ever subleased the building to the second counter petitioner. Counsel also placed reliance on the decision of the Apex Court in Resham Singh v. Raghbir Singh ((1999) 7 SCC 263).Reference was also made to the decision of the Rajasthan High Court in Raghuvar Dayal v. Hargovind (AIR 1958 Rajasthan 287) and also the decision of the Bombay High Court in Ratanlal Ghelabhai v. Amarsing Rubsing (AIR 1929 Bombay 467). Counsel submitted that since landlord failed to establish the landlord tenant relationship between him and the first counter petitioner, second counter petitioner has to be treated either as a tenant or as a trespasser.
6. Sri. K. Divakaran Nair, counsel appearing for the landlord, on the other hand submitted that Appellate Authority was justified in taking the view that the ground of sublease has been established and consequently eviction ordered under S. 11 (4)(i) has to be sustained.
7. Before examining the rival contentions on either side, we may examine the scope of S. 1l(4)(i) of the Act, which we extract below for easy reference.
(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building-
(i) If the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof if the lease does not confer on him any right to do so.
8. Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sublease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof.
9. Scope of the above provision came up for consideration before a Bench of this court in Arumu Khan v. Rajasekharan (1999 (3) KLT 502). The court held that initial burden to prove a transfer of possession or subletting, is of course, on the landlord. The Apex Court in Kalaaiul another v. Madho Parshad Vaidya ((1998) 6 SCC 573) and Benjamin Premanand Rawade v. Anil Joseph Rawade ((1998) 9 SCC 688) held that the onus to prove subletting is on the landlord and if he establishes parting of the possession in favour of a third party, the onus would shift to the tenant to explain. In Devikumar v. Swaranlata ((1996) 1 SCC 25) and in Resham Singh's case supra ((1999) 7 SCC 263) the Apex Court while dealing with the provisions of the E.P Urban Rent Restriction Act, 1949 held that the conclusion on the question of subletting is a conclusion on a question of law derived from the findings on the materials on record so as to transfer of exclusive possession as to the said transfer of possession being for consideration. In a recent decision in Shama Prashant Raje v. Ganpatrao ((2000) 7 SCC 522) the Apex Court on a survey of several decisions reiterated that to establish subletting two ingredients must be proved. Landlord has to prove that in between the tenant and sub tenant there is a relationship of lessee and lessor and that the possession of the premise in question was parted with exclusively by the tenant in favour of the sub tenant. For example, if the landlord establishes that A was his tenant and further establishes that instead of A, B was in occupation or he was conducting a business in the premises, the burden shifts to the tenant A to explain the nature of B's occupation and to establish on what basis B was put in possession. It is only if the landlord discharges the burden to prove exclusive transfer or possession and that the said transfer or possession being for consideration, the burden shifts to the sub lessee to show that he is in possession of the premises and disprove the case of sublessee.
10. We may first examine whether petitioner had established laudlord-tenant relationship between him and the first counter petitioner. Petitioner-landlord placed reliance on Ext. Al rent deed. To prove Ext A1 petitioner-landlord himself was examined as P.W.1 P.W 2, witness to Ext. A1 was also examined. Both of them deposed that it was the first counter petitioner who had written the rent deed, Ext. A1. First counter petitioner never thought of mounting the witness box. No steps have been taken by the petitioner-landlord to examine the first counter, petitioner so as to prove Ext A1 rent deed. Oral evidence of P.Ws 1 and 2 would categorically show P.W 2, alleged witness to Ext. A1 is a close associate of the petitioner. Facts also would indicate that first counter petitioner, alleged tenant is also a close relative of the landlord. Landlord's sister's son has married first counter petitioner's daughter. Marriage was prior to the execution of Ext. Al document. Ext. Al was alleged to have been executed on 17.2.1994 Petition schedule building is situated at Alwaye. Both the landlord and the first counter petitioner are also residing at Alwaye, but the stamp paper was obtained from Kothamangalam, a place which is 35 kilometres away from Alwaye. On a question put to the landlord he stated that the same was procured by P.W 2 who is his close associate when he went to Kothamangalam in connection with some business. Landlord has stated in the petition that first counter petitioner was conducting wholesale business in rice under Ext. Al document. Permit and licence are necessary for conducting wholesale business in rice. No evidence whatsoever has been adduced either by the landlord or by the first counter petitioner to show that first counter petitioner was conducting wholesale business in rice in the tenanted premises on the basis of Ext. A1. We have already indicated first counter petitioner is a close relative of the landlord who evaded the witness box. Facts would altogether show that Ext. Al is a creation of the landlord in collusion with the first counter petitioner, his close relative and P.W 2 his close associate. In view of the aforementioned facts, we are inclined to take the view that there is no landlord tenant relationship between the petitioner and the first counter petitioner.
11. Landlord has to further establish that in between the tenant and sub tenant there is a relationship of lessee and lessor and that possession of the building was parted with exclusively by the tenant in favour of the sub tenant for consideration. In the Rent Control Petition the petitioner-landlord has asserted that first counter petitioner had subleased the building to the second counter petitioner. But in the oral evidence P.W 1 has stated as follows:
12. The landlord therefore failed to adduce any evidence to show that sub lessee was in exclusive possession of the property and that between the sub tenant and tenant there was relationship of lessee and lessor and that possession of the premises was parted with by the tenant in favour of the sub tenant exclusively for consideration.
13. Second counter petitioner has strongly denied the lessee and lessor relationship between him and the first counter petitioner. To establish sub lease under S. 1l(4)(i) of the Act burden is on the landlord to show that there existed lessee and lessor relationship between the first counter petitioner and the second counter petitioner. Assuming that the burden was discharged in this case, then the burden shifts to the tenant to disprove the same. In the instant case, we have already indicated that the tenant did not give any oral evidence or contested the matter. We therefore hold that the first counter petitioner had failed to prove any lessor-lessee relationship between him and the second counter petitioner. We have found that landlord has failed to satisfy the ingredients for seeking eviction and has not discharged the burden of proving the ingredients of sublease under S. 1l(4)(i) of the Act. The first counter petitioner, the alleged tenant, also did not establish the relationship with the second counter petitioner. We may now examine the case put up by the second counter petitioner that there was landlord and tenant relationship between the petitioner and him. Second counter petitioner has stated that petition schedule building was taken on rent in March 1994 on the basis of an oral agreement on a monthly rent of Rs. 600/-. Landlord is staying adjacent to the petition schedule building. The furnishing and maintenance work of the petition scheduled room was carried out by him by spending huge amount. Monthly rent of the petition scheduled room was enhanced on different occasions and the present rate of tent is Rs. 1,250/-. Landlord is in possession of other rooms adjacent to the petition schedule room. He demanded exorbitant amount of rent which the second counter petitioner could not afford to pay. Second counter petitioner instituted O.S No. 350 of 1998 before the Munsiff s Court, Aluva when the petitioner landlord attempted forcible eviction. The stand of the second counter petitioner is that he was put in possession of the shop building on oral lease and that almost all the shop rooms of the petitioner have been given on oral lease. The deposition of P.W 1 would indicate that fact. We extract his oral evidence for reference.
14. The above mentioned evidence itself would indicate that the landlord has got other shop rooms of his own let out by him on oral lease. No rent deed in respect of any other shop was produced by the landlord. Therefore the plea of the second counter petitioner that the landlord has the practice of letting out shop rooms on oral lease is established. The second counter petitioner has produced Ext. B3 series profession tax receipts. Facts would also indicate that the. tenanted building is in the possession of the second counter petitioner during the relevant period. The landlord has also failed to produce any evidence for payment of rent by the first counter petitioner to the landlord all these years. We may also point out that second counter petitioner had already deposited an amount of Rs. 31,270/- towards rent arrears and the same was received by the landlord. No deposit has been made by the first counter petitioner in favour of landlord. Aforementioned facts would positively show that the second counter petitioner is either a tenant under the petitioner or else he could be characterised as a trespasser. There is absolutely no evidence in this case to show that second counter petitioner was sub lessee under the first counter petitioner. In view of the aforementioned circumstances, we are inclined to allow this revision and set aside the orderof the Appellate Authority. Civil Revision Petition is disposed of as above.
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