JUDGMENT
M.M. Kumar, J.
1. This is tenant’s petition filed under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973. Both the Courts below have recorded concurrent findings that tenant-respondent 2 Surinder Kumar has sublet the demised premises to the sub-tenant-petitioner who has also been found to be in its exclusive possession. It has further been found by both the courts below that tenant-respondent No.2 has failed to pay the rent to landlord-respondent.
2. Brief facts of the case necessary for deciding the controversy raised in this petition are that the landlord-respondent 1 instituted ejectment petition No. 102 of 2001 on 1.3.1997 against tenant-respondent No. 2 as well as sub-tenant-petitioner, inter alia, alleging that the tenant-respondent 2 has failed to pay the rent from March, 1986 to January, 1997 at the rate of Rs. 250/- per month. It was further pleaded that tenant-respondent 2 has sublet the demised premises to sub-tenant-petitioner without consent or permission of the landlord-respondent 1. The sub-tenant-petitioner took the stand that in fact he is the tenant in the demised premises under the landlord-respondent 1. It was further asserted that tenant-respondent 2 had no concern whatsoever with the premises in dispute and, therefore, question of subletting did not arise. The arrears of rent were
sought to be tendered in the Courts by the sub-tenant-petitioner at the rate of Rs. 200/-per month but the tender was not accepted by the landlord-respondent 1 on the ground that there was no relationship of tenant and landlord between the parties.
3. On the question of subletting, the Rent Controller found that the stand taken by the sub-tenant-petitioner is intriguing because he has claimed that the demised shop was let out to him by one Hukam Chand who had executed rent note Ex.Rl. When Hukam Chand appeared as a witness before the Rent Controller as AW-2. the aforesaid version was not even put to him by the sub-tenant-petitioner nor he was confronted with the rent note. The execution of the rent note as Ex.Rl has also been considered unsustainable in the eyes of law which led to the inference that the demised shop was never let out to him by the landlord-respondent 1. The Rent Controller relied upon the statements made by Mauji and Hukam Chand AW2 and concluded that the landlord-respondent 1 had rented out the demised shop to tenant-respondent 2. Reliance was also placed on the testimony of sub-tenant-petitioner who had admitted that the electricity of meter of the shop in dispute was in the name of tenant-respondent 2. The landlord-respondent 1 has proved that the sub-tenant-petitioner is in exclusive possession of the demised shop. The sub-tenant-petitioner has in fact admitted to be in possession when he claimed to be tenant under the landlord-respondent 1. Once possession of sub-tenant-petitioner is proved, then it is a matter of inference that the tenant-respondent 2 must have entered into some arrangement with sub-tenant-petitioner. It is also strange that the sub-tenant-petitioner had also denied the signatures on the written statement and verification purported to be filed by him.
4. The Appellate Authority affirmed the findings recorded by the learned Rent Controller. Rejecting the rent note Ex.Rl, the learned Appellate Authority observed as under:-
“First of all, it may be mentioned that no doubt, landlord is to stand upon his own legs and he cannot take the advantage of the weakness of the respondent, but in this case, first of all, it is pertinent to mention that alleged rent note Ex.Rl, which has been produced by Jaipal Jangra present appellant, is of no help to him to prove the relationship of landlord and tenant because this document is not proved according to law. Mere marking of a document as Exhibit does not dispense with proof and on this point Authority Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors., A.I.R. 1971 Supreme Court 1865 may be looked into. Further it is also pertinent to mention that Hukam Chand is shown as one of the attesting witnesses and is shown to have signed as Cashior on behalf of the landlord/respondent No. l, but when Hukam Chand has appeared in the witness box as AW-2, there is nothing put to him to this effect that rent note was executed and he signed on behalf of the landlord. Neither this document Ex.R-1 is put in any manner to Hukam Chand. His statement to the effect that the shop in dispute was let out to Surinder in the beginning at a monthly rent of Rs. 100/- and subsequently with effect from 1.10.1995, the rent was enhanced by Surinder to Rs. 250/- per month with his free consent, has not been assailed in cross examination. This part of the statement of Hukam Chand AW-2 has not been assailed in any manner. It is also admitted in cross examination that the Dharamshala has charged rent at the rate of Rs. 250/- per month from Surinder and rent tendered by respondent No. 1/present appellant was not accepted. It is also stated by Hukam Chand that Surinder has further sublet the premises to Jaipal i.e. the present appellant.
5. Mauji Ram, who is the Secretary of the landlord Dharamshala as AW-1 has categorically stated about the existence of relationship of landlord and tenant between Surinder and the Dharamshala. There is consistency in the statements of Mauji AW-1 and Hukam Chand AW-2. He is the Secretary of the Institution and copies of the Resolutions Ex.P-1 and P-2, have been produced. He has been authorised to institute the eviction petition…”
6. On the question of renting out the demised shop to tenant-respondent 2, the Appellate Authority observed as under:-
“It has transpired from the evidence led that Mauji Ram AW-2 also terminated the tenancy of the respondent no. 1, vide registered notice. Postal receipt Ex.P-3 and P-4 are produced. Respondent/tenant has remained out of contest, landlord has also produced rent note which is marked as “C” showing execution of the Rent-Note by Surinder in favour of landlord Dharamshala, but the same is not duly proved. However, from the oral evidence adduced on the file, relationship of landlord and tenant between the Dharamshala and Surinder is proved. Statement of Jaipal, present appellant as RW-1 also demolishes his case because he has not produced original Rent Note. Photo copy of the alleged Rent Note. Neither any such application has been moved nor Hukam Chand AW-2 has been asked to produce the Rent Note. Thus, photo copy of the alleged rent note Ex.R-1 is not duly produced as mentioned above. Further Jaipal is middle pass. He has plucked in 9th class and he also knows English. He has stated that he has seen the written statement dated 12.6.1997 and the same does not bear his signatures on points Mark A and B. However, he has admitted that Shri Balwan Singh was his counsel. Thus, when the very written statement filed in this case stands excluded from the very statement of the present appellant, in a way version of Dharamshala/landlord goes un-rebutted and in authority Darshan Singh v. Rajesh Pal Singh,1998 Haryana Rent Reporter 365 it has been laid down by his Lordship that if written statement filed by the tenant was not signed nor verified the same cannot be looked into.”
7. The Appellate Authority has also found that the sub-tenant-petitioner is in exclusive possession of the demised premises which is evident from paragraph 14 and the same reads as under:-
“In cross-examination, Jaipal has stated that he had taken the shop on rent from Hukam Chand, but he cannot tell whether he was authorised to rent out the same or not. There is no such pleading in the written statement and evidence beyond pleading cannot be looked into. Jaipal appellant, has admitted this fact that Surinder son of Chhaju Ram used to sit in the shop and the electric bill are also received in his name. He did not get changed the electric meter in his name. He is also not able to tell as to upto which date Surinder remained in possession of the shop in question. This appellant has also expressed his ignorance about this fact whether any rent note was executed between Dharamshala and Surinder. He also cannot tell whether any receipt was issued to Surinder in token of having received the rent. Thus, when once possession of Surinder over the premises in question is proved in the capacity of tenant, presumption is of continuation of the statement of things once existing. The respondent/appellant could not rebut this presumption. However, now exclusive possession of the present appellant over the premises in question is proved and now the onus was upon the appellant to prove in what capacity, he was retaining the possession. Thus, the appellant has miserably failed to prove his version of direct tenancy which does not substantiate from any cogent evidence. Statement of Karambir RW also does not prove the same….”
8. Mr. Harkesh Manuja, learned counsel for the petitioner has argued that although inference with regard to consideration between a sub-tenant and a tenant could be drawn, yet it has to be proved by the landlord that the demised shop was rented out by the tenant to the sub-tenant. He has further argued that tenant-respondent 2 was the tenant under the landlord-respondent 1 from May, 1995 to March, 1996. It is claimed that the sub-tenant-petitioner was inducted as a tenant thereafter by the landlord-respondent 1. The learned counsel has maintained that in the absence of any proof of exclusive possession by the landlord-respondent no. l no interference with regard to some secret arrangements between the tenant-respondent 2 and the sub-tenant-petitioner could be inferred.
9. Mr. R.S. Mittal, learned counsel for the landlord-respondent 1 has argued that there is cogent evidence on record in the form of statement made by AW-1 Mauji Ram
9.
and AW-2 Hukam Chand establishing the fact that tenant-respondent 2 was the tenant under landlord-respondent 1 and the sub-tenant-petitioner was never inducted as such. He has drawn my attention to the observations of the Appellate Authority made in paragraphs 10 and 14 of its judgment to which reference has already been made in the preceding paragraphs to argue that the possession of sub-tenant-petitioner has been fully inferred.
10. After hearing learned counsel for the parties, I am of the considered view that the instant petition is absolutely misconceived. The sub-tenant-petitioner has himself admitted that tenant-respondent 2 was a tenant and he has been in exclusive possession of the demised shop as he claimed himself to be tenant under the landlord-respondent 1. It is not the case of the sub-tenant-petitioner that he is not in possession when he claims to be a tenant and under landlord-respondent 1. Once the exclusive possession has been established as a fact by the oral statements made by AW-1 Mauji Ram and AW-2 Hukam Chand alongwith the admission of the sub-tenant-petitioner, then the consideration between tenant-respondent 2 and sub-tenant-petitioner is a matter of inference as it is clandestine affair which is executed at the back of a landlord. It is well settled that such an inference could validly be drawn. For the aforementioned view reliance could be placed on two judgments of the Supreme Court in the cases of Rajbir Kaur v. Chokesiri and Company,1 1989(1) S.C.C. 19, and United Bank of India v. Cooks and Kelvey Properties (Private) Limited,2 1994(5) S.C.C. 9. Similar view has been taken by the Supreme Court in the case of Barqt Sales Limited v. LIC of India,3 1998(3) S.C.C. 1 which reads as under:-
“Sub tenant or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord mat the tenant to whom the property was let out had put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court, is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub let.”
10. I am further of the view that findings of facts recorded by both the Courts below are based on cogent evidence and are well merited. The jurisdiction of this Court under Section 15(6) of the Act is limited only to the question of examining the legality or propriety of the proceedings undertaken by the Rent Controller or the Appellate Authority. This Court cannot re-appreciate the evidence in order to record a conclusion different than the one recorded by the Courts below. In this regard reference may be made to two judgments of the Supreme Court in the case of Patel Valmiki Himatal v. Patel Mohan Lai Mujibahai,4 1998(7) S.C.C. 3883, and Helper Girdharbhai v. Saiyed Mohmad Mi-
rasaheb Kadri,5 1987(3) S.C.C. 538.
11. There is another aspect of the matter. The tenant-respondent 2 has not even contested the ejectment petition and was proceeded ex parte before the Rent Controller. No appeal or revision has been filed by him. The grounds of non payment of rent as well as sub-letting stand proved. Therefore, no interference of this Court in the concurrent findings of facts recorded by both the Courts below is called for and the instant petition is liable to be dismissed.
12. For the reasons stated above, this petition fails and the same is dismissed.