ORDER
S. Jagadeesan, J.
1. The first respondent in C.R.P. No. 1413 of 1997 is the landlord. He has leased out the property to the second respondent in the said C.R.P. He has filed R.C.O.P. No. 30 of 1989 on the file of the Rent Controller, Tirunelveli to evict the petitioner herein on the ground that the second respondent had subleased the property to the petitioner and the petitioner being a sub-lessee without the consent of the landlord, is liable to be evicted. It is the case of the petitioner that she is closely related to the second respondent and she was residing with her family with the second respondent in the petition premises. The first respondent had to shift to Bombay in January, 1989 and hence on 21.12.1988, she along with the second respondent met the first respondent and requested for the occupation of the building by the petitioner and the first respondent agreed for the same and she is residing as a tenant in the premises. The Rent Controller as well as the appellate authority found that the petitioner is a sub-lessee and ordered eviction. As against the said order of the lower authorities, the] present revision has been filed.
2. The petitioner in C.R.P. No. 1414 of 1997 filed R.C.O.P. No. 39 of 1989 seeking permission to deposit the rent into court, since the landlord refused to receive the rent. The Rent Controller found that the petitioner is not the tenant and as such the application filed by her is not maintainable. The appellate authority also concurred with the finding and dismissed the appeal R.C.A. No. 19 of 1994. As against the same, the C.R.P. No. 1414 of 1997 has been filed.
3. Mr. R.S. Ramanathan, learned Counsel for the petitioner contended that in the notice issued by the landlord in Ex.P-1, he has stated that the petitioner had trespassed into the property unauthorisedly. Even in the petition filed by the landlord, he has stated that on enquiry, he came to know that the second respondent had gone to Bombay and the petitioner is in occupation of the portion of the building. The petitioner is not the tenant under the landlord and she is only a sub-lessee of the second respondent herein. Since there is contradiction in the plea put forth by the landlord in the notice Ex.P-1 and the petition, his evidence cannot be accepted. On the contrary, the plea of the tenant, that the petitioner is in occupation of the building only with the consent of the landlord is to be accepted. The learned Counsel for the respondent Mr. A. Krishna Rao contended that the transfer of the lease or the sub-lease can be made only with the written consent of the landlord. In the absence of the written consent, the plea put forth by the petitioner cannot be accepted, since the oral consent is not permissible under the statute.
4. I carefully considered the contention of both the counsel.
5. The learned Counsel for the petitioner, referred to some of the judgments and contended that there is no sub-lease in this case since the petitioner was living with her family with the second respondent and the second respondent had shifted to Bombay and thereafter the petitioner continued to be in occupation of the building with the consent of the landlord. The petitioner’s contention is that there is no question of transfer of tenancy, as the petitioner is the close relative of the first respondent and all along residing with him in the premises. I shall now refer to the judgments referred to by the learned Counsel for the petitioner.
The first judgment is that of the judgment reported in Delhi Stationers and Printers v. Rajendra Kumar , wherein it has been held as follows:
5. Under Section 13(1)(e) of the Rajasthan premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as ‘the Act’), the tenant is liable to be evicted, if he has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others, mere occupation is not sufficient to infer either sub-tenancy or parting with possession see Gopal Saran v. Sathya Narayana .
The next judgment is reported in Sree Venkateswara Varukadalsi Mills v. Vijayalakshmi , wherein it has been held as follows:
9. On the basis of the principles laid down in the decisions referred above, the position of law on the question Of subletting may be stated as follows: A tenant can be said to sublet the demised premises to a third party only when the tenant had permitted the third party to occupy the premises and had divested himself completely of the possession of the premises or part thereof. In other words, there must be transfer of the exclusive right to enjoy the demised premises by the tenant in favour of a third party and the said right must be in lieu of payment of some compensation or rent. If a tenant had permitted a third party to use the premises along with him while the tenant retains legal possession, it will not amount to sub-letting. There cannot be a subletting unless the lessee parted with legal possession.
The next judgment is reported in Murugesan, V.D. v. Raj Mohammed (1994)2 L.W. 667, wherein it has been held as follows:
8… In the present case, there is neither any pleading nor evidence that the alleged sub-tenant is in exclusive possession and the respondent has no control over the petition-mentioned property. The second ingredient to prove the sub-tenancy is that the right to occupy the premises must be in lieu of payment of some compensation or rent. As already observed by me, there is no evidence that the alleged sub-tenant pays any rent to the respondent. Therefore, the theory of sub-tenancy fails, when we approach the case on hand in the light of the decision reported in Dipak Banerjee v. Lilabati Chakraborthy also.
6. On the basis of the above judgments, the learned Counsel for the petitioner contended that there is no evidence to establish that the petitioner has been paying any rent or any amount to the second respondent, and the second respondent had not parted with the control of the building as he is also residing with the petitioner. There is a fallacy in the argument of the learned Counsel for the petitioner. So long as the petitioner had been staying with the second respondent, there is no dispute. Admittedly, the second respondent has vacated the premises and shifted to Bombay and now the petition is in exclusive possession of the portion of the building. Hence, there is no dispute that the petitioner is in exclusive possession of the building and the second respondent had parted with the leasehold property to the petitioner. Hence, the question is whether the petitioner is in occupation of the building with the consent of the landlord as contended by her or whether the second respondent had transferred the leasehold right to the petitioner which would amount to sub-lease of the property without the consent of the landlord.
7. In considering this question, the main objection of the learned Counsel for the petitioner is that in Ex.P-1 notice, the first respondent has stated that the petitioner is a trespasser and unauthorisedly occupying the building. Since it is not the case of the first respondent that the petitioner is a sub-lessee, the eviction proceedings before the Rent Control Authorities are not maintainable and the first respondent has to file a civil suit for recovery of possession. I am unable to agree with the contention of the learned Counsel for the petitioner. Even though in the notice it has been stated that the petitioner is a trespasser, the eviction proceedings have been initiated on the basis that the petitioner is not a tenant and the second respondent had sub-leased the premises to the petitioner without the consent of the first respondent, the landlord. The first respondent might have stated in the notice that the petitioner is a trespasser mainly on the ground that the petitioner is in occupation of the building without the consent or knowledge of the landlord. Even assuming that the same plea is put forth in the petition, still it cannot be said that the R.C.O.P. proceedings is not maintainable. It has been held in the judgment reported in Ruth Margaret Gonsalves v. K.T.H. Presses (1987)1 M.L.J. 405, that the pleadings in R.C.O.P. matters cannot be construed with the strictness as with which pleadings in civil suits are construed and required liberal construction. Hence the mere contradiction between the averments made in the notice and the petition cannot deprive the petitioner of his right of seeking possession on the ground of sub-lease.
8. Section 10(2)(ii)(a) reads as follows:
(2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied
(ii) that the tenant has after the 23rd October, 1945, without the written consent of the landlord-(a) transferred his right under the lease or sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so,
The abovesaid provision clearly prohibits the lessee from transferring his right under the lease or to sublet the entire building or any portion of the building without the written consent of the landlord. The acquiescence or the oral consent cannot stand in the way of the landlord in seeking for eviction of the sublessee or the assignee of the leasehold right. It may be worthwhile to refer to a few of the judgments of this Court. It has been held in the judgment reported in T.S.O. Abdul Khader v. G.H. Rao (1964)2 M.L.J. 288 as follows:
But Section 10(2)(ii) of the Madras Buildings (Lease Rent and Control) Act requires the written consent of the landlord if the building, let out were to be used for a purpose other than that for which it was leased. Therefore, any kind of acquiescence by the landlord or estoppel by his conduct, cannot be a substitute for the plain requirement of the statute, about a written consent. The reference of two English decisions in the judgment of the lower appellate court has no relevancy in view of the special provisions in our statute. I therefore, find that in the absence of a written consent, the landlord is entitled to evict the tenant for having used the building for a purpose other than that for which it was leased out.
9. The next judgment is reported in Reethalammal v. K. Arumugham Pillai, 91 L W. 231, wherein it has been held as follows:
20. From a discussion of the above authorities, certain principles do emerge out. Sub-letting is made a ground for seeking eviction by the landlord. Consent by landlord for such sub-letting would provide a cover for the tenant. It may be express or implied provided it is in writing. Subletting done during the tenure of a lease under a previous landlord and without his written consent can be availed of by a subsequent purchaser from the previous landlord to seek eviction of the tenant. Though in some decisions acquiescence by the landlord was countenanced as a defence available to the tenant, other decisions have discountenanced it, and they have held that there is no question of acquiescence or estoppel against the landlord and that would practically be estoppel against the statute. In my view, the second line of decisions is in consonance with the language used in the provisions of the Act. To repeat the dictum of Ramakrishnan, J. in T.S.O. Abdul Khader v. G.H. Rao (1964)2 M.L.J. 288. “any kind of acquiescence by the landlord or estoppel by his conduct cannot be a substitute of the plain requirements of the statute about a written consent. “A change of sub-tenant after the relevant date without the written consent of ‘landlord’ will entail eviction. Keeping the above principles in the background, we have to see as to whether the decision of the appellate authority has conformed to the same.
10. The next judgment is reported in Damodaran v. Kamalammal (1983)1 M.L.J. 181, wherein it has been held as follows:
11. From the above passages it is seen that subletting is transfer by a tenant of a right less than what he himself has and retaining the reversion; whereas a transfer of the rights of the tenant is parting with the entire interest the tenant has without retaining any right. What is contained in Section 10(2)(ii)(a) is that the landlord is entitled to an order of eviction in case of transfer of the tenant’s right to another or subletting which is transfer of a limited right by the tenant. When subletting (transfer of eliminated right) is pleaded and the transfer of the entire rights of the tenant is established, the landlord is entitled to succeed. It is laid down in the case reported in Mohammed Yusuf Zulaika Umma v. Abdul Khader, where a Division Bench of this Court observed as follows: “Section 10(2)(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by the Act XXIII of 1973 contemplates two situations, one dealing with the tenant transferring his rights under the lease or subletting the entire building and the other with dealings by the tenant using the building for a purpose other than that for which it was leased. On a harmonious construction of the above clauses, it will be seen that the expression “that the tenant has after the 23rd October, 1945 without the written consent of the landlord, transferred his rights under the lease or sublet the entire building or any portion thereof from the very nature of the case, does not contemplate the continuance of the subletting. All that is required is that subsequent to 23rd October, 1945, the tenant should have sublet the premises without the written consent of the landlord. Once this requirement is satisfied the tenant forfeits his protection and becomes liable to be evicted, and the statute does not impose a further condition that the subletting must be continuing throughout the entire course of the eviction petition. If such construction were to be put on the statutory provision, the tenant will be able to play a hide and seek game and the moment he comes to know of the landlord’s intention to file a petition, he can temporarily cause the tenant to vacate the premises in question and occupy it himself, and as soon as the petition for eviction is dismissed, he can re-induct the subtenant into the premises. This could not have been the intention of the Legislature, and the statutory provision like the one under consideration cannot also be construed in such a manner.”
12. The principle laid down in the above case can be extended to the present case and viewed in the proper perspective the claim of the landlady cannot fail on account of want of a plea regarding the transfer of the right by the tenant.
11. The next judgment is reported in Roopalochani Saraswathi Ammal v. Sundaranarayanan , wherein it has been held as follows:
7. It may be that the petitioners stand in a very close relationship to the second respondent, but the jural relationship for purpose of the Act between the petitioners and the second respondent cannot be considered with reference to their blood relationship. So looked at, in spite of a definite term in the lease addressed to the second respondent not to part with possession of the premises leased out to him, he had proceeded to put the petitioners in possession of the premises resorting to the device of a settlement deed in their favour. Whatever may be the form of transaction resorted to for the purpose of transferring the possession of the premises from the second respondent to the petitioners, it is obvious that legal possession of the premises was given by that transaction to the petitioners without the consent of the first respondent in writing and in the teeth of the prohibition contained in Exs.A-1 and A-2. That would, in my view suffice to satisfy the requirements of sub-letting for purposes of securing an order for eviction on that very ground. It is not in dispute that the petitioners are in possession of the premises let out to the second respondent by the first respondent. Unless it be that the second respondent had divested himself of possession and has put the petitioners in possession, the petitioners cannot otherwise account for their possession. It may be that the change of possession did not take place through the form of a lease as such. Yet in law, the transfer of legal possession from the second respondent to the petitioners, though effected through the medium of a deed; of settlement, would nevertheless have the effect of a sub-lease in favour of the petitioners by the second respondent. It is not the case of the petitioners that the first respondent permitted them to remain in possession of the property pursuant to the deed of settlement executed by the second respondent in favour of the petitioners under Ex.A-4 dated 19th January, 1972, the original of which is Ex.B-14. In view of this, the admitted possession of the petitioners cannot be otherwise explained except by an act on the part of the second respondent in having parted with his possession without the consent in writing of the first respondent in favour of the petitioners and that would suffice to satisfy the requirements of the provision under the Tamil Nadu Buildings (Lease and Rent Control) Act. Under those circumstances the authorities below were quite justified in holding that the second respondent had sub-leased the premises in favour of the petitioners and in ordering their eviction.
12. In the above cases, the tenant has executed the settlement deed in favour of his blood relations and that has been construed as sub-lease and the tenants are liable to be evicted. From the above extracted principles, it is clear that the tenant can assign his leasehold right or sublet the entire building or the portion of the building only with the written consent of the landlord. Hence, the oral consent put forth by the petitioner for assignment of the lease in favour of the petitioner cannot be accepted in law.
13. So far as the contention of the learned Counsel for the petitioner that the petitioner had been residing with the second respondent till the second respondent shifted to Bombay and since she is the close relative of the second respondent and as such there is no question of sub-lease is concerned, it is her case that after the second respondent shifted to Bombay, she continued to be in possession. At the outset it may be stated that even though in the counter she claims to be the close relative the nature of the relationship has not been stated. Moreover, when the third party is in possession of the premises, the burden is on the third party to prove the lawful possession as a tenant, because the sub-lease is an act between the tenant and the sub-tenant without the knowledge of the landlord. When the petitioner has failed to examine the first respondent who is a close relative in order to establish that she has not been paying any rent to him for her stay in the premises, her plea cannot be accepted. It may be worthwhile to refer to the recent judgment of this Court reported in Mallika v. A.P. Kathija Beevi and Ors (1998)1 L.W. 45, wherein it has been held as follows:
10. Revision petitioner has no case that the second counter petitioner is not doing any business. But her case is only that she is having control over the building and no exclusive possession has been given to the second counter petitioner. When he is doing business of his own, an inference can be drawn that for the purpose of business, he must have control over that area where the business is being conducted. Further, when a telephone is installed, it could be presumed that he has got a permanent address in the schedule building. That means, he has got the right to exclude and include others in the place where he is doing business. Unless he has got control over the premises, the telephones cannot be installed, for, he must have permanent address in that building. A name board is also placed in the name of the second counter-petitioner. A mere denial by the petitioner will not be sufficient to come to the conclusion that the second counter-petitioner has no exclusive possession. On the basis of the evidence, adduced, the Authorities below have come to the conclusion that the second counter-petitioner must be in possession exclusively with right to exclude and include others. When the landlord has proved that a stranger is in possession and is doing business in the premises, it is for the tenant to substantiate the circumstances under which the stranger came into occupation. Mere denial may not be sufficient. The arrangement between the tenant and the second counter-petitioner is a secret arrangement and the details of the same can be spoken only by them. Burden on the landlord is discharged when he proves that a stranger is in exclusive possession at least in respect of a portion of the premises, The inference drawn by the Authorities below that the second counter-petitioner has exclusive possession, according to me, is the only conclusion that can be arrived at in the circumstances of the case.
14. On considering the evidence available on record, I am of the view that the petitioner is in occupation of the building as the sub-lessee without the written consent of the landlord, the first respondent herein and as such she is liable to be evicted. The order of the authorities below are confirmed and the C.R.P. No. 1413 of 1997 is dismissed.
15. In view of the findings given in C.R.P. No. 1413 of 1997 that the petitioner is not the tenant under the respondent, the authorities below have rightly dismissed the petition filed by the petitioner for depositing the rent (C.R.P. No. 1414 of 1997). Hence I see no ground to interfere with the same and hence it is also dismissed. Consequently C.M.P. is also dismissed.
16. Counsel for the petitioner seeks time to vacate and hand over vacant possession to the respondents. Accordingly, the petitioner is granted three months time to vacate and handover vacant possession to the respondents on condition that an affidavit of undertaking to that effect shall be filed within two weeks from today.