The burden of proving no sub-letting shifts to the tenant once the landlord proves the parting of possession to a third person.

Satish Kumar Mittal, J.

1. The tenant Ram Avtar has filed this revision petition under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act (hereinafter referred to as `the Act), against the orders passed by the Rent Controller, Bhiwani and the Appellate Authority under the Act, whereby the ejectment of the petitioner from the shop in question has been ordered on the ground that he has sub-let the demised premises to respondent No. 2, namely Bishan Sarup, who is his real brother.

2. The demised premises is a shop, which was let out to the petitioner by Smt. Sushma Kumari (respondent No. 1 herein) in the year 1984 on monthly rent of Rs. 450/-. In the year 1986, the ejectment petition was filed by the landlady on various grounds, including the ground that without her written consent the demised premises has been sub-letted by the petitioner to his real brother. It was alleged that the petitioner has handed over the exclusive possession of the demised premises to his brother and he himself has shifted to a new shop at Patram Gate, near Old Police Chowki Bhiwani.

3. The petitioner contested the said application by taking the plea that he alone is doing business in the demised premises and he has not sub-letted the demised premises to his brother Bishan Sarup.

4. The Rent Controller, after taking into consideration the evidence led by the parties, held that the petitioner had parted with the possession of the demised premises exclusively to his brother Bishan Sarup, who is carrying his business in the demised shop. It was further held that the petitioner has failed to prove that his brother is not sub-tenant in the demised premises. Consequently, the order of ejectment was passed on the ground of sub-letting. The Appellate authority has affirmed the order of ejectment by dismissing the appeal filed by the petitioner. Hence, this revision petition was filed.

5. I have heard the arguments of learned counsel for the parties and gone through the impugned orders, passed by both the courts below.

6. Learned counsel for the petitioner submitted that the finding of sub- letting recorded by the courts below is perverse being based on misreading of evidence, and the material evidence led by the petitioner has also been ignored. In this regard, learned counsel submitted that statements of various witnesses examined by the petitioner have not been properly appreciated. He further submitted that both the courts below have wrongly recorded the finding that the petitioner has parted with possession of the demised premises exclusively to his brother. He submitted that the said finding has been recorded merely on the basis of evidence, which only shows that on one or two occasions, in the absence of the petitioner, his brother was found present in the demised premises. While referring to the decisions of the Supreme Court in M/s Delhi Stationers & Printers v. Rajendra Kumar, 1990(1) RCR(Rent) 491 : 1990 Haryana Rent Reporter 263 and Dev Kumar v. Smt. Swaran Lata and others, 1996(1) RCR(Rent) 40 : (1996-2)113 PLR 39, learned counsel for the petitioner submitted that mere presence of a person other than the tenant in the shop does not prove case of sub-letting as long as control over the business is kept by the tenant. He submitted that in order to prove the sub-letting, the landlord is required to prove the parting of legal possession to the sub- tenant and the burden of making a case of sub-letting lies on the landlord. He submitted that in the instant case, the landlady has not discharged her onus to prove that the demised premises was sub-letted by the petitioner to his bother for a consideration. Learned counsel submitted that in this case the courts below have recorded the finding with regard to parting of possession of the demised premises to the sub-tenant, on the basis of the report of local commissioner, which is inadmissible in law. He submitted that before appointing the local commissioner, neither a notice was gi