Judgment

M. P. THAKKAR, J. : - The view taken by the High Court that a tenant sought to be evicted on the ground of unlawful subletting under S. 10(2)(ii)(a)*1 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, must himself have been guilty of the contravention and that the alleged contravention by his father when he was a tenant can be of no avail for evicting him is assailed in this appeal by special leave. The High Court has so pronounced in the backdrop of the admitted fact that respondent had himself not created any sub-tenancy after he became the tenant in 1968 upon the death of his father. The plea raised by the appellant that the tenancy created in 1952 by the father of respondent rendered him liable to be evicted in the suit instituted by the appellant in 1970 was repelled. The unsuccessful landlord has now invoked this Courts jurisdiction under Art. 136 of the Constitution of India.

*1. "10(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied

(i)xxxxxxxxx

(ii) that the tenant has after the 23rd October, 1945 without the written consent of the landlord-

(a) transferred his right under the lease or sublet the entire building or any portion thereof, if the lease does not confer on him any right to do so.

orxxxxxxxxx"

2. Facts not in dispute are :-

(1) The father of the appellant had granted a lease in favour of the father of respondent prior to 1952 (the exact date or year is not on record).

(2) The father of the appellant as also the father of respondent both have died.

(3) Respondent was accepted as a tenant upon the death of his father in 1968.

(4) The suit for eviction giving rise to the present appeal was instituted for eviction in the ground of unlawful subletting in 1970 by the appellant who had inherited the property from her father.

(5) Admittedly, neither the appellant nor the respondent has any personal knowledge about the terms and conditions of the lease originally granted by the father of the appellant in favour of the father of respondent No. 1.

(6) So also neither the appellant nor the respondent has any personal knowledge in what circumstance the father of the respondent had created a subtenancy in favour of Kuppuswami Sah way back in 1952, eighteen years before the institution of the suit.

(7) Neither the appellant nor respondent has any personal knowledge as to whether or not the subtenancy was created with the written consent of the landlord eighteen years back in 1952.

And on these facts the prayer for eviction must be denied regardless of the question of interpretation which will be presently tackled. The mere fact that for as many as 18 years no objection was raised, and no action for possession was instituted against the father of the appellant (respondent?) in his lifetime notwithstanding the fact that a sub-tenant was openly in occupation of a part of the rented premises, would give rise to an inference that it was never treated as unlawful subletting by the appellant or her father. There is nothing on record to show that the subletting in question, which was made in 1952,18 years before the institution of the suit in 1970, was in violation of the relevant provisions of law. The appellant cannot succeed unless the appellant establishes that S. 10(2)(ii)(a) has been violated and the tenant has incurred the liability to be evicted on the ground of unlawful subletting notwith-standing the fact that the lease did not confer on him any such right, and that such unlawful subtenancy was created without the written consent of the then landlord. There is no evidence, direct or circumstantial, on the basis of which it can be said that the lease did not confer on the father of the respondent the right to create a subtenancy. Or that it was done without the written consent of the then landlord, that is to say, the father of the appella