The burden of proof of subletting is on the landlord, but if the landlord establishes parting of possession in favor of a third party, the onus would shift to the tenant to explain.

JUDGMENT :

Ashok Bhushan, J.

Leave granted.

2. This appeal has been filed against judgment of Allahabad High Court dated 08.04.2013 by which judgment High Court while allowing the revision filed by the tenant set aside the order passed by Judge Small Causes Court directing the tenant to hand over the possession of the disputed shop to the landlord and to pay rent and damages.

3. The brief facts of the case, giving rise to this appeal are:

The appellant in this appeal is landlord who let out a shop situated at ground floor of the house to tenant named Amar Nath (since deceased). Landlord issued a notice terminating the tenancy of the tenant. Landlord filed suit in the Court of Judge Small Causes Court praying for decree of eviction of the tenant on the grounds of arrears of rent as well as subletting. Appellant claimed that monthly rent was Rs. 950 per month along with house tax and water charges. The tenant is in default of the rent since 01.01.1995. It was further pleaded that defendant-tenant had kept another person, namely, Mohd. Ezaj Khan, S/o Mohd. Zafar as subtenant in one portion of the shop and rent is being taken at the rate of Rs. 50 per day from him. The Ezaj Khan was undertaking the repair work of the watches in the above shop. Defendant-tenant had rebutted the averments made in the plaint, it was pleaded that rate of monthly rent is Rs. 710/-. It was denied that tenant is in arrears of rent. It was also mentioned in written statement that defendant-tenant had never kept Moh. Ezaj as subtenant and in fact he was a worker in the shop of the defendant-tenant.

4. Appellant-plaintiff had filed various documentary evidence and in oral evidence Ram Murthi Devi PW.1, PW.2 Vineet Kumar, Pratap Singh PW.3 and Zalim Singh PW.4 were examined. On behalf of the defendants-tenants certain documentary evidence were filed and Kishan Kumar appeared as DW.1 and Dilip Kumar appeared as DW.2. Trial Court framed several issues. Issue No. 4 was with regard to sub-tenancy, which was to the following effect:

“4. Whether defendants have kept Shri Moh. Ezaj as a subtenant at the shop in question for Rs. 50 per day or for consideration of some other amount. If so, its effect?”

5. Trial Court after considering the evidence on record held that tenants were in arrears of rent and were not entitled to the benefit under Section 20(4) of the U.P. Urban Building(Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as 'Act 1972'). On Issue No. 4, it was held that Moh. Ezaj had been kept as subtenant, who was held to be in partial possession of the shop. The suit was decreed directing the defendant-tenant to hand over the vacant possession. The defendant-tenant was also held liable to pay rent and damages.

6. Aggrieved by the judgment dated 21.02.2013 of Judge Small Causes Court, a Revision under Section 25 of Provincial Small Cause Act, 1887 (hereinafter referred to as 'Act 1887') was filed by the tenant in the High Court. The High Court vide its impugned judgment has set aside the judgment of the Trial Court. High Court held that tenant was not in arrears of rent and the Trial Court committed an error in accepting the case of the appellant that tenant had sublet to Moh. Ezaj subtenant.

7. Aggrieved by the judgment of the High Court appellant has come up in this appeal. We have heard Miss Aruna Gupta, learned counsel for the appellant and Shri S.R. Singh, learned senior counsel, assisted by Shri Mangal Prasad Yadav for the respondents.

8. Learned counsel for the appellant has not seriously questioned the finding of the High Court to the effect that tenant was not in arrears and had deposited the entire arrears of rent and damages and was entitled to protection under Section 20(4) of the 'Act 13 of 1972'.

9. Learned counsel for the appellant, however, has challenged the decision of the High Court, in so far as, the High Court held that sub-tenancy was not proved by the landlord. It is submitted by the learned counsel for the appellant that