The burden of proof lies with the landlord to establish the existence of sub-tenancy for eviction under the Rent Control Act.

1. The landlord's petition for eviction had been ordered in his favour before the Rent Controller but the decision was reversed by the appellate authority. The landlord is the revision petitioner before this Court.

2. The petition for eviction was founded on non-payment of rent and that he was guilty of sub-letting of the premises without written consent of the landlord. The learned senior counsel appearing on behalf of the petitioners advances his arguments only as regards the plea of sub-tenancy which, according to him, had been properly dealt with by the Rent Controller, but reversed without adequate reasons by the appellate authority. The plea of subletting was on his contention that the tenant, who was running a transport business at the demised premises, had attempted to create a sub-tenancy in favour of the 2nd respondent and he had also received an inauguration ceremony invitation for opening of the new business of the 2nd respondent at the premises. The opening ceremony was said to have taken place on 28.01.1985 and the petitioner's case was that the printed invitation card that had been circulated to the public including him, had specifically named the landlord and the subtenant as persons with whose best compliments the invitation has been sent and the RSVP noting found in the card was Surjan Singh Thekedar, a locally influential person whose evidence was sought to be let by the tenant initially by citing him as a witness but later given up. The landlord would contend that non-examination of the said person was very material and the appellate authority must have drawn an adverse inference.

3. The landlord also relied on two other circumstances to contend that there had been a sub-letting in favour of the 2nd respondent: one of which was entry in the tax assessment register showing both the names of the respondents Manjit Singh and Gurbachan Singh as tenants of the premises. The landlord would also refer to the fact that there had been a signboard of the 2nd respondent hanging outside the premises which showed that the 2nd respondent was carrying on his own business and the 1st respondent had actually voluntarily surrendered the premises to him.

4. The learned senior counsel places reliance on the fact that the invitation card had been received by him and that he knew personally that there was an opening ceremony on 28.01.1985 and he had actually a petition prepared on the very day i.e. on 28.01.1985 and it was filed on 31.01.1985. Thus he had acted immediately with alacrity and there was no reason for him to take such a precipitate action unless the contention was true. If the landlord was affirming the case of sub-tenancy through an invitation card said to have been published by the said tenant for an opening ceremony, then the proof of the card and the contention that the respondents circulated the same would really assume significance for testing the correctness of the contentions of the landlord, but it cannot be conclusive all the time. For instance, if the tenant had been indiscreet to offer the property or portion of it to a subtenant but before the latter actually took actual possession, the landlord prevented it by some action, say a suit or a petition, the intention of the tenant would itself be not a cause for action for eviction. It is the actual surrender of possession by the tenant to a subtenant pursuant to his intention that will give a ground for eviction. The crucial test shall therefore be whether the tenant had actually parted with possession of the demised premises either in part or full to the subtenant.

5. The learned senior counsel Shri Saggar appearing on behalf of the respondents contends that when the tenant denied the card, there was no attempt of the landlord to secure the presence of any other independent witness to say that he attended the opening ceremony. He would also point out to the fact that there was no information of the printer through whom the card was printed. The