The tenant has the burden of proving that the premises were occupied by his father as a licensee or that they were members of a joint Hindu family business.

J.V.Gupta, J.

1. The landlord-petitioner has filed this petition against the order of the Appellate Authority, Hoshiarpur, dated 13th of September 1976, whereby the order of the Rent Controller directing the ejectment of the tenant had been set aside and consequently the ejectment application was dismissed. The landlord sought the ejectment of his tenant Vishwanath inter alia on the ground of subletting from the premises which consisted of a shop situated at Hoshiarpur. It was stated in the ejectment application that Vishwanath had transferred his rights under lease of the entire shop to Sarv Lal and had sublet the same without the written consent of the landlord. In the joint written statement filed on behalf of both the respondents, it was stated that the respondents are father and son being members of the Joint Hindu Family inter se and with others had joint business and as such the question of transfer of tenancy did not arise.

2. On the pleadings of the parties, the Rent Controller framed the following issue :-

1. Whether the respondent No. 1 has transferred the tenancy of the shop to respondent No. 2 without the consent of the petitioner, landlord ? OPA.

2. Whether the respondent No. 1 has committed acts mentioned in para No. 2, sub para No. 3 to 6, and had impaired materially the value and utility of the shop in dispute ? OPA.

3. Whether the respondent No. 1 has ceased to occupy the shop in dispute, continuously for more than four months prior to the institution of the present petition ? OPA.

4. Whether the petitioner has been refusing to accept the payment of rent when offered by the respondents ? OPA.

5. Relief.

3. On issue No. 1 the Rent Controller came to the conclusion that the tenant Vishwanatha had after the commencement of this Act without the written consent of the landlord, transferred his rights under the lease in demised building and consequently the issue was decided in favour of the landlord. Issue No. 2 was found against the landlord and in favour of the tenant. The other issues were found in favour of the tenant, but in view of the finding on issue No. 1 an order of ejectment was passed against the respondents. In appeal the finding on issue No. 1 was reversed by the Appellate Court. It has been observed that "I see merit in the arguments adduced from the side of the counsel for the appellant that no presumption of sub-letting etc could be drawn against the appellants, when there was no positive evidence regarding sub-letting and the premises in dispute was in possession of his own father respondent No. 2". Feeling aggrieved against this, the landlord has come up in revision to this Court.

4. The learned counsel for the petitioner vehemently contended that on the admitted facts the tenant Vishwanath has settled in Hariabad and is running his own shop that itself is sufficient to shift the burden on the tenant to prove that under what capacity his father Sarv Lal is occupying the premises is dispute. The plea in the written statement filed on behalf of them jointly that they being members of the Joint Hindu Family inter se and with others had joint business has not been proved on the record nor has any such finding been given by the Appellate Authority particularly when the learned Rent Controller has given a firm finding that Vishwanath has transferred all his rights under the lease in the demised shop, to his father and brothers. They are not a party to the rent deed and as such could not become contenants under the landlord. Vishwanath had no control over the shop in dispute. Thus according to the learned counsel, subletting is fully proved and the order of the Rent Controller directing the ejectment of the tenant is liable to be restored.

5. On the other hand the learned counsel, for the tenant vehemently contended that keeping in view the relationship between the tenant and the alleged sub-tenant being that of father and son, the question of sub letting could not be inferred. Rather according