2008 Supreme(SC) 341

2008(2) Supreme 257
Supreme Court of india
Tarun Chatterjee & Dalveer Bhandari, JJ.
Vaishakhi Ram and Ors. — Petitioners
versus
Sanjeev Kumar Bhatiani — Respondent
Appeal (civil) 1559 of 2008
Decided on : 25-02-2008

Important point
1.Question as to whether a person is a member of family of tenant must be decided on facts and circumstances of case.
2.It is well settled that burden of proving subletting is on landlord but if landlord proves that sub-tenant is in exclusive possession of suit premises, then onus is shifted to tenant to prove that it was not a case of subletting.

Headnote:Delhi Rent Control Act, 1958 – Section 14(1)(b) – Eviction Suit – Subletting - Appellant no.1 was inducted as a tenant in year 1956 by erstwhile owners of suit shop – Appellant was all along in continuous possession of suit shop and was conducting business from same along with his brother - Subsequently, a business was started in a portion of suit shop in name of M/s. Mitra Stores and M/s. Lucky Confectioners - In the year 2000, original owners sold suit shop to one “A” - However, rent of suit shop was continued to be paid to Original Owners by appellant no.1 upto month of September 2000 - Thereafter, rent was deposited by appellant no.1 in court in different proceedings - Respondent filed an eviction petition on ground of subletting - Rent Controller held on facts that appellant No.1 had sublet a portion of suit shop in which business in the name of M/s Mitra Stores and M/s Lucky Confectioners was carried on by appellant Nos. 2 to 4 and, therefore, appellants were liable to be evicted - Appeal – Dismissed by Rent Control Tribunal - Writ petition – Dismissed by High Court - Special leave petition - Question as to whether a person is a member of family of tenant must be decided on facts and circumstances of case - Admittedly, appellant Nos. 2 to 4 were neither spouse, brothers, sisters, sons or daughters of appellant No. 1 - Although they were related to appellant No.1, there was nothing on record to show that appellant Nos. 2 to 4 were residing with appellant No. 1 for a considerable period of time as members of family of appellant No.1 – Hence, only because they were related to appellant No.1, in absence of appellant Nos. 2 to 4 being residing with appellant No.1, it could not be said in context of rent control legislation that they were residing as family members of appellant no.1 and therefore, question of subletting not arose at all - Three courts concurrently held on facts that appellant No.1 had no exclusive possession in a part of suit shop where appellant Nos. 2 to 4 had been carrying on their separate independent business - Both courts below, namely, Rent Controller and appellate authority, on consideration of entire evidence on record held that it could not be proved by cogent evidence that there was no subletting - Courts below were fully justified in holding that subletting as alleged was proved since appellant No.1 had failed to prove that appellant Nos. 2 to 4 were not conducting their business in suit shop independently but in fact doing business of appellant No.1 or assisting him - It is well settled that burden of proving subletting is on landlord but if landlord proves that sub-tenant is in exclusive possession of suit premises, then onus is shifted to tenant to prove that it was not a case of subletting - Since appellant Nos. 2 to 4 had been in exclusive possession of suit shop and appellant No.1 could not prove that it was not a case of subletting, suit shop had been sublet by appellant no. 1 in favour of appellant Nos. 2 to 4 - Therefore, no interference could be made with findings arrived at by High Court as well as courts below on question of subletting - In absence of any evidence on record to show that there was any conscious relinquishment of benefit conferred by provisions of statute, no reason to hold otherwise to extent that subletting made in favour of appellant Nos. 2 to 4 by appellant No.1 was proved and right to eviction was not waived, either by erstwhile landlord or by Respondent- Appeal having no merit dismissed. (Paras 8 to 14)

       [(2006) 1 SCC 524] relied upon.

       Facts of the case:-

       1.Appellant no.1 was inducted as a tenant in year 1956 by erstwhile owners of suit shop. Appellant was all along in continuous possession of suit shop and was conducting business from same along with his brother. Subsequently, a business was started in a portion of suit shop in name of M/s. Mitra Stores and M/s. Lucky Confectioners. In the year 2000, original owners sold suit shop to one “A”. However, rent of suit shop was continued to be paid to Original Owners by appellant no.1 upto month of September 2000. Thereafter, rent was deposited by appellant no.1 in court in different proceedings. Respondent filed an eviction petition on ground of subletting. Rent Controller held on facts that appellant No.1 had sublet a portion of suit shop in which business in name of M/s Mitra Stores and M/s Lucky Confectioners was carried on by appellant Nos. 2 to 4 and, therefore, appellants were liable to be evicted. Appeal thereagainst was dismissed by Rent Control Tribunal. Writ petition thereagainst was also dismissed by High Court.

       2.Present Special leave petition has been filed against said order of High Court.

       Findings of the Court : –

       The Court held that admittedly, appellant Nos. 2 to 4 were neither spouse, brothers, sisters, sons or daughters of appellant No. 1. Although they were related to appellant No.1, there was nothing on record to show that appellant Nos. 2 to 4 were residing with appellant No. 1 for a considerable period of time as members of family of appellant No.1. Hence, only because they were related to appellant No.1, in absence of appellant Nos. 2 to 4 being residing with appellant No.1, it could not be said in context of rent control legislation that they were residing as family members of appellant no.1 and therefore, question of subletting not arose at all. Three courts concurrently held on facts that appellant No.1 had no exclusive possession in a part of suit shop where appellant Nos. 2 to 4 had been carrying on their separate independent business. Both courts below, namely, Rent Controller and appellate authority, on consideration of entire evidence on record held that it could not be proved by cogent evidence that there was no subletting. Courts below were fully justified in holding that subletting as alleged was proved since appellant No.1 had failed to prove that appellant Nos. 2 to 4 were not conducting their business in suit shop independently but in fact doing business of appellant No.1 or assisting him. Since appellant Nos. 2 to 4 had been in exclusive possession of suit shop and appellant No.1 could not prove that it was not a case of subletting, suit shop had been sublet by appellant no. 1 in favour of appellant Nos. 2 to 4. Therefore, no interference could be made with findings arrived at by High Court as well as courts below on question of subletting. Appeal having no merit dismissed.

       Result: Appeal dismissed