The burden of proof shifts to the tenant once transfer of possession is established, and exclusive possession is considered as evidence of tenancy.

1. The tenant of a building, against whom an order for eviction has been passed by the appellate authority, confirmed by the District Court in revision, in reversal of the order dismissing the petition of the landlord by the Rent Control Court, challenges that order before me under S.115 C. P. C. The landlord, on an ambitious project for eviction, pleaded arrears of rent, destruction of the utility of the building by committing waste and sub-letting, as the grounds for throwing the tenant out of the premises. The first two failed even in the Court of first instance and were not pursued wisely in the higher Courts. The last ground of subletting, although did not find favour with the Rent Control Court, appealed to the appellate authority and was approved by the revisional authority. We are, therefore, concerned only with whether the 1st respondent in RCOP. No. 23 of 1966 had sublet the building or a portion of the building to the 2nd respondent, his brother-in-law. S.11 (4) states.

"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 sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so;"

There is no consent to granting a sub-lease or transfer of the lease in this case and indeed the only question we are concerned with is whether as a fact there has been a subletting to the 2nd respondent.

2. The appellate and the revisional authorities were wobbling, if I may say so, on the question as to whether there was a transfer of the leasehold right or subletting only. In view of the fact that there is no clear proof of any sublease, the appellate authority proceeded to hold:

"It can either be a case of sub lease or a case of transfer of the rights of the first respondent in the building under the lease in his favour."

This was proceeded by a finding of fact in the following terms:

"I have every reason to be live that the first respondent has put the 2nd respondent in possession of the building in dispute and that the first respondent has no control whatsoever over the business which is being run by the 2nd respondent in the said premises." In revision, the learned District judge, affirming this finding, observed:

"Thus, this is a case where the landlord has proved that in the premises in question the 2nd petitioner has been running a trade of his own from 1965. When a person other than the tenant was found to be in possession of the premises, it is for the tenant to explain how these persons came into possession. The tenant was not able to offer a convincing explanation regarding the exclusive possession of the 2nd petitioner. That being so and in view of the above findings, the conclusion can be safely reached that the tenant has transferred his rights under the lease to the 2nd petitioner".

The findings are attacked on various grounds. Firstly, counsel for the revision petitioner argues that in the absence of any averment of a transfer of the lease as distinguished from a subletting, it is not open to the authorities to direct eviction without finding specifically that there was subletting. The excerpts from the judgment extracted above reveal that the authorities were not prepared to find positively that there was subletting and so it is argued before me that the order for eviction amounts to mis-exercise of jurisdiction. It is also pointed out that under R.7 of the Kerala Buildings (Lease and Rent Control) R.1959, "Every application under the Act shall, in addition to the particulars necessary to support it, contain also the particulars prescribed in R.12 so far as they may be applicable and every application for eviction under S.11 shall also state the grounds on which the application is made". The ground of transfer of the lease not having been stated, it is not open to