ORDER
1. This revision petition has been filed by the petitioner-tenant under Section 115 of the CPC against the order dated 5-4-1997 passed in R (R) No. 35 of 1990 on the file of the II Additional District Judge, Mangalore, by which the first revisional Court under Section 50 of the Karnataka Rent Control Act, 1961 (in short the ‘Act’) has confirmed eviction of the petitioner on the ground that he has unlawfully sublet the petition premises and also on the ground that he has acquired alternative accommodation as envisaged under Section 21(1)(f) and (p) of the Act.
2. It is not at all in dispute that the petition premises was taken on lease by the petitioner tenant as evidenced by Ex. P. 1, being lease deed. The lower revisional Court on the basis of the ration card, Commissioner’s report (Ex. C. 1) has found that the premises was subsequently put under exclusive possession of one Govardhan Baliga, brother of the petitioner-tenant. It has also been found as of fact that the petitioner-tenant is carrying on his business in jaggery at Mandya, where he is permanently residing with his family. It has also come on record that one of his daughters has been admitted to a school at Mandya. Apart from that, the petitioner-tenant is having telephone connection at Mandya. There is no acceptable evidence to show that he is still residing in Mangalore.
3. It is on these findings recorded by the lower revisional Court, eviction has been ordered both on the ground of unlawful subletting as also acquiring of alternative and suitable accommodation. So far as subletting aspect is concerned, the Court below has found that the brother of the petitioner is in exclusive possession of the petition premises.
4. Mr. Patil, learned Counsel for the petitioner, on the basis of the law laid down by the Supreme Court in the case of Dipak Banerjee v Smt. Lilabati Chakraborty, has sought to submit that unless there is an evidence to the effect that the subtenant, who is in exclusive possession of the property, is paying rent to the tenant, the plea of subletting cannot be accepted. In my opinion, the submission is based on misreading of the judgment. In paragraph 7 of this judgment, it has been held that.–
“The question in this case is whether the alleged subtenant was in exclusive possession of the part of the premises and whether the tenant had retained no control over that part of the premises. There is no evidence on the fact that the alleged subtenant was in exclusive occupation of any part of the premises over which the tenant had not retained any control. On this aspect neither was there any pleading nor any evidence at all. No Court gave any finding on this aspect at all. In that view of the matter one essential ingredient necessary for a finding the case of subtenancy has not been proved. If that is so, the Trial Court, the First Appellate Court and the High Court were in error in holding that the subtenancy was proved”.
5. In the present case, admittedly, the lower revisional Court has come to a definite conclusion that that the brother of the petitioner is in exclusive possession of the premises in question. That being the position, in my opinion, the decision in the case of Bhairab Chandra Nandan v Ranadhir Chandra Dutta, most aptly apply to the facts of the present case. In para 5 thereof, it has been held that.–
“Now coming to the question of subletting, once again we find that the Courts below had adequate material to conclude that the respondent had sublet the premises, albeit to his own brother and quit the place and the subletting was without the consent of the appellant. Admittedly, the respondent was living elsewhere and it is his brother Manadhir who was in occupation of the rooms taken on lease by the respondent. The High Court has taken the view that because Manadhir is the brother of the respondent, he will only be a licensee and not a subtenant. There is absolutely no warrant for this reasoning. It is not as if the respondent is still occupying the rooms and he has permitted his brother also to reside with him in the rooms. On the contrary, the respondent has permanently shifted his residence to another place and left the rooms completely to his brother for his occupation without obtaining the consent of the appellant. There is therefore no question of the respondent’s brother being only a licensee and not a subtenant. Hence, it follows that the High Court was not justified in setting aside the concurrent findings of the Courts below on the ground of subletting also”.
6. For the aforesaid reasons, I do not find any occasion to interfere with the order of the lower revisional Court. The revision petition is accordingly dismissed with costs of Rs. 500/-.