IN ORDER FOR THERE TO BE SUBLETTING, THERE MUST BE AN OVERT ACT ON THE PART OF THE TENANT TO TRANSFER POSSESSION OF THE PROPERTY TO THE SUB-TENANT.

V.S.Aggarwal, J.

1. The present revision petition has been filed by Raghbir Singh (hereinafter described as the petitioner) directed against the order passed by the learned Rent Controller, Hoshiarpur, dated 3.9.1982 and the Appellate Authority dated 13.6.1983 respectively. The learned Rent Controller had passed an order of eviction against the petitioner and respondent No. 2 Kuldeep Singh. The same was affirmed by the appellate authority. Hence, the present revision petition.

2. The relevant facts are that Resham Singh respondent No. 1 had filed a petition for eviction with respect to the shop in dispute. The ground of eviction with which the present revision petition is concerned pertains to the fact alleged that property had been let out to Raghbir Singh but he had sublet the same to Kuldeep Singh. The other ground of eviction taken up was that the petitioner had failed to pay the arrears of rent from 1.8.1980 at the rate of Rs. 70/- p.m.

3. The said ground of eviction was contested. It was pointed that petitioner himself was carrying on the business of a sweet meat shop in the said property. Respondent No. 2 is alleged to be in no way concerned with the shop. On the first date of hearing, the arrears of rent were tendered by the counsel but the same were not accepted on the count that Shri R.G. Kohli was not duly appointed agent of the petitioner.

4. The learned Rent Controller had framed the issues and held that the property in question had been sublet by the petitioner to respondent No. 2 because petitioner himself was a proclaimed offender and it was respondent No. 2 who was carrying on the business in his own right. The ground of eviction that payment of rent had not been made or that on the first date of hearing, the rent was not tendered, the findings returned by the Rent Controller were that Shri R.G. Kohli was representing the petitioner as a counsel and he tendered the entire arrears of rent on the first date of hearing. Thus, the order of eviction was only passed with respect to the ground that the property had been sublet. An appeal was filed and the Appellate Authority approved the findings of the Rent Controller that the said property had been sublet. It was held that it was respondent No. 2 who was carrying on the business independently in the property in question. The petitioner cannot be allowed to take a stand that respondent No. 2 was merely a licensee. After dismissal of the appeal, the present revision petition had been filed.

5. On behalf of the petitioner it was highlighted that respondent No. 2 is the brother of the petitioner and in case of brothers, it cannot be inferred that there would be subletting of the property. In this connection reliance was placed on the decision of this Court in the case of Syed Faroze Ali Shah v. Syed Jamil Ali and Anr., 1980(2) Rent Law Reporter, 549. It was held that merely permitting the brothers to use the premises without consideration while retaining legal possession, does not amount to subletting. Similarly, attention of the court was being drawn towards the decision of the Supreme Court in the case of Smt. Krishnawati v. Shri Hans Raj, A.I.R. 1974 S.C. 280. In the said case the wife had taken the property on rent. The shop was being run by her husband. It was held that it did not amount to subletting under the Delhi Rent Control Act, 1958.

6. It is well known that two necessary ingredients are to be taken note of before it can be held that the property had been sublet. The same are that sub-tenant should be in exclusive possession of whole or part of the building and further that it was for valuable consideration,

7. Both the courts below had returned certain concurrent findings of the fact. Both the petitioner and respondent No. 2 are brothers. Petitioner was involved in a criminal case. He remained absent for many years. In his absence respondent No. 2 carried on the business of sweet meat selling in the shop. Respondent No. 2 carried on the business wh