The burden of proof to establish sub-lease or transfer of possession is on the landlord, which is prima facie. If the landlord shows prima facie evidence of exclusive possession for valuable consideration, the burden shifts to the tenant to rebut the evidence and explain the possession.

Petitioner is a tenant of a building owned by the 5th respondent who sought eviction on the ground of rent arrears, bona fide need for own occupation and sublease. The rent control court allowed the petition on all the grounds. On appeal the appellate authority modified the order and granted relief only on the ground of sublease. The revisional court refused to interfere. Hence this O.P.

2. The building is alleged to have been entrusted to the 6th respondent on the strength of a lease deed. Petitioner was stated to be the sub-lessee. Sixth respondent remained ex parte. Petitioner alone contested the rent control petition. He denied the sub-lease alleged in the petition and contended that he along with the 6th respondent had taken the shop room for conducting business jointly. The lease deed is alleged to have been executed for and on behalf of petitioner also. He further contended that rent was paid by him since the date of commencement of tenancy, and that he was in continuous occupation since then.

3. The rent control court on a proper consideration of the evidence adduced on both sides came to the conclusion that the case set up by petitioner was not true and that he is in occupation as a sub-lessee. The appellate authority concurred with this finding. The revisional court did not see any irregularity or impropriety in this finding and refused to interfere. The findings of the revisional court and the authorities below are challenged by the petitioner on the ground that the relief was granted on an erroneous interpretation of the law. The contention is that the landlord has failed to establish exclusive possession with petitioner and transferred for consideration. Considerable reliance was placed on the decision of this court in Leela v. AH & others (1982 KLT 685). On the other hand, it is the contention of 5th respondent landlord that exclusive possession and transfer for consideration had been proved and the ingredients of S.11(4)(i) of the Rent Control Act have been established. Before considering the facts of the case in order to ascertain whether the order of the rent control court and the appellate authority are perverse or unreasonable and whether there is any impropriety or irregularity or illegality in such order or proceeding, it is appropriate to refer to the judicial pronouncements on this aspect.

4. A sub-tenancy or a lease involves transfer of a right to enjoy the property in consideration for a price paid or promised as set out in S.105 of the Transfer of Property Act. The creation of sub-tenancy therefore involves creation of an interest in the property, which is so transferred to the sub-lessee. It is settled law that the mere fact that any person is allowed the use of the promises while the lessee retains legal possession is not sufficient to create a sub-lease. Right of exclusive possession and enjoyment should be conferred on the sub-lessee in order to create a sub-lease.

5. Section 11 of the Rent Control Act enables the landlord of a building to get an order directing the tenant to put the landlord in possession on one or other of the grounds mentioned in that section. One of such grounds is sub-lease or transfer of possession by the tenant. S.11(4)(i), which enables the landlord to claim eviction on this ground, reads thus:

"If the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so".

A proviso was introduced to that sub-section in 1973 by which an opportunity was given to the tenant to terminate the transfer or the sub-lease, as the case may be, within 30 days of the receipt of the notice issued by the landlord intimating the contravention of the condition in the lease or the refusal of that notice. The contentions contemplated in S.11(4)(i) are: (1) the tenant after the commencement of the Act transferred his right under th