The main legal point established in the judgment is the burden of proof in cases of subletting and the implications of accepting rent despite subletting.

ORDER

1. This writ petition under Article 227 of the Constitution of India has been preferred by the petitioners/non-applicants/tenants against the judgment and recovery certificate dated 04.11.2019 whereby, the learned Appellate Rent Tribunal, Sikar has dismissed the Appeal No.20/2012, CIS No.42/2014 preferred by the petitioners against the judgment dated 21.05.2012 passed by the learned Rent Tribunal, Sikar in Eviction Petition No.13/2004 whereby, the rent application filed by the respondents-applicants was partly allowed.

2. The facts in brief are that the respondents-applicants filed a rent application under Sections 6 & 9 of the Rajasthan Rent Control Act, 2001 (for brevity, 'the Act of 2001') against the petitioners/tenants seeking revision of rent and eviction from the suit-premises comprising of two shops; i.e., eastern and western shop on the grounds of subletting (Issue No.2), denial of title and non-user (Issue No.4). The learned Rent Tribunal, Sikar vide its judgment dated 21.05.2012 granted recovery certificate qua the grounds of subletting and non-user which was unsuccessfully challenged by the petitioners by way of an appeal which came to be dismissed by the learned Appellate Rent Tribunal, Sikar vide its judgment dated 04.11.2019.

3. Learned counsel for the petitioners contended that indisputably, the respondents have filed a suit for eviction under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for brevity-'the Act of 1950') wherein it was alleged that the tenant was trying to sub-let the premises which came to be dismissed as withdrawn by the learned trial court vide order dated 29.11.2003 and the present rent application was filed on 20.12.2003, i.e., within a short span thereafter with averment that the property was sublet. He submitted that in the aforesaid circumstances, it was apparent that the plea of sub-letting was false. He submitted that the learned Rent Tribunal erred in granting recovery certificate on the ground of sub-letting of the eastern shop in absence of any pleading or proof as to the parting with its exclusive possession by the tenant and also in absence of any pleading/proof as to the parting with possession for monetary consideration, i.e., rent. Drawing attention of this Court towards the averments contained in the rent application and statement of Vijay Kumar (AW-1), he contended that it was neither pleaded nor established by the applicants that exclusive possession of the suit shop was handed over by the tenant to the petitioner No.2 and it was so for monetary consideration. Learned counsel asserted that the learned Rent Tribunal erred in failing to appreciate that it was a family business which was being taken care of by his brother and sons and there was no sub-letting. He further contended that even assuming that the subject property was sub-let, in view of the fact that it was done so way back in the year 1984 and the applicants have been receiving rent even for part of the premises sub-let since long, it would amount to implied consent to sub- letting. He submitted that the learned Rent Tribunal erred in deciding the Issue No.2 wrongly placing burden of proof upon them. He, in this regard, relied upon following judgments:

(1) Celina Coelho Pereira (Ms) & Ors. versus Ulhas Mahabaleshwar Kholkar & Ors.: (2010) 1 Supreme Court Cases 217.

(2) Shama Prashant Raje versus Ganpatrao & Ors.: (2000) 7 Supreme Court Cases 522.

(3) Nilesh Laxmichand & Anr. versus Shantaben Purushottam Kakad (since deceased) by Legal Representatives: (2019) 6 Supreme Court Cases 542.

4. With regard to findings qua Issue No.4, i.e., non-user, learned counsel submitted that the applicants failed to establish that the shop in question was not being used for more than six months immediately prior to institution of the application. Referring to the cross-examination of Vijay Kumar (AW-1), learned counsel submitted that he has admitted therein that he did not have any documentary evidence to show that t