{"id":181725,"date":"2008-03-28T00:00:00","date_gmt":"2008-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nirmal-kanta-dead-through-lrs-vs-ashok-kumar-anr-on-28-march-2008"},"modified":"2019-03-09T12:51:03","modified_gmt":"2019-03-09T07:21:03","slug":"nirmal-kanta-dead-through-lrs-vs-ashok-kumar-anr-on-28-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nirmal-kanta-dead-through-lrs-vs-ashok-kumar-anr-on-28-march-2008","title":{"rendered":"Nirmal Kanta (Dead) Through Lrs vs Ashok Kumar & Anr on 28 March, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nirmal Kanta (Dead) Through Lrs vs Ashok Kumar & Anr on 28 March, 2008<\/div>\n
Author: A Kabir<\/div>\n
Bench: C.K. Thakker, Altamas Kabir<\/div>\n
           CASE NO.:\nAppeal (civil)  7160 of 2005\n\nPETITIONER:\nNirmal Kanta (Dead) through Lrs.\n\nRESPONDENT:\nAshok Kumar & Anr.\n\nDATE OF JUDGMENT: 28\/03\/2008\n\nBENCH:\nC.K. THAKKER & ALTAMAS KABIR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Altamas Kabir,J.\n<\/p>\n
1.\tThis appeal by special leave is directed
\nagainst the judgment and order dated 7th January,
\n2002, passed by the High Court of Punjab & Haryana
\nat Chandigarh in Civil Revision No. 2250 of 1984
\nfiled under Section 15 of the East Punjab Rent
\nRestriction Act, 1949, (hereinafter called the
\n1949 Act).  By the said judgment, the High Court
\nset aside the order dated 25th October, 1983, passed
\nby the Appellate Authority and restored the order
\ndated 13th August, 1983, passed by the Rent
\nController dismissing the appellant-landlords
\npetition for eviction of the respondents under
\nSection 13 of the 1949 Act.  The facts relating to
\nthe filing of the eviction petition are set out in
\nbrief hereinbelow.\n<\/p>\n
2.\tOne Smt. Nirmal Kanta, wife of Shri
\nT.R.Bhandari, filed the above-mentioned petition
\nunder Section 13 of the 1949 Act seeking ejectment
\nof the respondents herein from the shop-room in
\nquestion.  Ejectment was sought on the ground that
\nthe tenant had not paid the rents for the tenanted
\nshop-room from 2nd March, 1982, till 15th June,
\n1982, when the eviction petition was filed.  It was
\nalso alleged that the conduct of the tenant was a
\nconstant nuisance not only to the landlord but also
\nto the neighbours as well and that the landlord
\nwanted to construct a first floor on the demised
\npremises, which was being obstructed by the tenant.
\nA separate ground as to creation of sub-tenancy was
\nalso pleaded along with some other grounds relating
\nto installation of electric meter and an attempt
\nbeing made by the tenant to establish his own title
\nto the suit property.  The Rent Controller
\ndismissed the application on 13.8.1983 and against
\nsuch order of dismissal of his petition the
\nappellant filed an appeal before the Appellate
\nAuthority.  The Appellate Authority allowed the
\nappeal and set aside the order of the Rent
\nController by its judgment dated 14th June, 1984.
\nThe tenant, the respondent No.1 herein, was
\ndirected to put the landlord\/appellant in
\npossession of the tenanted premises within three
\nmonths.  The respondent No.1\/tenant filed Civil
\nRevision No. 2250 of 1984 before the High Court
\nagainst the order of the Appellate Authority and
\nthe same was allowed on the finding that by
\nallowing a tailor, even on payment, to sit in a
\npart of the shop-room with his sewing machine,
\nwhile retaining his possession and rights as a
\ntenant over the premises leased to him, the
\nrespondent No.1\/tenant did not create a sub-lease
\nand the tailor could at best be said to be a
\nlicensee. The High Court held that the appellant
\nlandlord had failed to discharge his burden that
\nthere was a sub-letting of the demised premises.\n<\/p>\n
3.\tNone of the other grounds appear to have been
\nurged on behalf of the appellant-landlord before
\nthe High Court, which set aside the judgment of the
\nAppellate Authority only on the ground of alleged
\nsub-letting.  It is against the said order of the
\nHigh Court that the present Special Leave Petition
\nhas been filed.\n<\/p>\n
4.\tAt this juncture, it may be mentioned that the
\nsole petitioner before the Rent Controller died
\nduring the pendency of this appeal and she was
\nsubstituted by her legal heirs in the appeal.  The
\nappellant No.1, Tilak Raj Bhandari, the husband of
\nthe deceased Nirmal Kanta, who is an advocate, has
\nappeared in person in support of the appeal.\n<\/p>\n
5.\tHe urged that the High Court had erred in
\nreversing the well-considered judgment and order of
\nthe Appellate Authority on a wrong understanding of
\nthe law relating to creation of sub-tenancies by
\nholding that even if it was established that the
\nrespondent No.1-tenant had allowed the respondent
\nNo.2, a tailor, to sit inside a part of the demised
\npremises with his sewing machine for the purpose of
\nstitching, the same would not amount to creation of
\na sub-tenancy or a sub-lease.  It was urged that by
\nallowing the respondent No.2 to use a portion of
\nthe demised premises, the respondent No.1, had
\nparted with the exclusive possession of the said
\nportion of the demised premises, thereby, in fact,
\ncreating a sub-tenancy.\n<\/p>\n
6.\tThe appellant No.1 urged that during the
\nhearing of the application filed before the Rent
\nController under Section 13 of the 1949 Act, the
\nRent Controller had appointed a Local Commissioner
\non 15th June, 1982, to visit the locale and to
\nreport the factual position regarding the use of
\nthe portion of the demised premises by Lachman
\nSingh working as a tailor and as to whether, he had
\naffixed his sewing machine, plied by feet, on the
\nfloor at a particular point in the site plan.  It
\nwas pointed out that the Local Commissioner had
\nreported that on his inspection in the presence of
\nthe parties, he found that the tailor Master
\nLachman Singh was operating as a tailor from the
\npoint shown in the site plan of the shop-room and
\nthat he had got a sewing machine plied by feet
\nfixed to the said spot.\n<\/p>\n
7.\tThe appellant No.1 submitted that the report
\nof the local commissioner had been wrongly
\ninterpreted by the High Court, inasmuch as, it
\namply proved that a portion of the shop-room had
\nbeen sublet to Lachhman Singh. He also submitted
\nthat the Appellate Authority had correctly held
\nthat the respondent-tenant was liable to be evicted
\non account of such sub-letting and the High Court
\nhad erred in reversing the said finding upon
\nholding that the fact that the alleged sub-tenant
\nwas found sitting inside the shop-room would not
\nalone establish the sub-tenancy and that if any
\nperson sits in the shop-room for augmentation of
\nthe business of the tenant the plea of sub-tenancy
\ncould not be accepted. The High Court further
\nobserved that the Rent Controller had arrived at
\nthe correct finding that at best Lachman Singh was
\na licensee under the tenant and not a sub-tenant as
\nalleged by the appellant herein. The appellant
\nsubmitted that the judgment of the High Court was
\ncontrary to the law relating to licence and sub-
\ntenancy and was liable to be set aside  and that of
\nthe Appellate Authority was liable to be restored.\n<\/p>\n
8.\tOn behalf of the respondents it was contended
\nthat in order to constitute a sub-tenancy, one of
\nthe basic ingredients is that the tenant was
\nrequired to part with possession of the whole
\npremises let out to him and that by allowing a
\nperson to sit in a portion of the shop-room even if
\non payment of rent do not amount to sub-letting but
\nat best could have created a licence.  It was urged
\nthat from the evidence on record it would be amply
\nclear  that the respondent No.1 had not parted with
\nexclusive possession of the shoproom and had only
\nallowed the  alleged sub-tenant to operate his
\nsewing-machine from a portion of the shop-room and
\nthat too for the purpose of assisting the
\nrespondent No.1 in his cloth business.\n<\/p>\n
9.\tIt was submitted that Lachhman Singh, the
\nalleged sub-tenant, had been allowed to sit in the
\nshop-room to facilitate customers in taking
\nmeasurements for the purpose of buying cloth and as
\na master tailor, Lachhman Singhs job was to assist
\nthe customer to assess the amount of cloth required
\nfor a particular purpose.\n<\/p>\n
10.\tIt was urged that even if the report of the
\nlocal commissioner showed that a sewing-machine had
\nbeen affixed to the floor in a portion of the shop-
\nroom, that was not in the nature of a sub-tenancy
\nas alleged on behalf of the appellant, but in order
\nto assist the respondent No.1 in his business. It
\nwas submitted that the Rent Controller, as also the
\nHigh Court, had very correctly assessed the
\nsituation in holding that at best it could be said
\nthat a licence had been created by the respondent
\nNo.1 in favour of Lachman Singh in that portion of
\nthe shop-room where the sewing-machine had been
\naffixed and from where Lachman Singh was operating.\n<\/p>\n
11.\tIn support of his submission learned counsel
\nfirstly relied upon the decision of this Court in
\nDelhi Stationers and Printers vs. Rajendra Kumar<\/a>
\n[(1990) 2 SCC 331] wherein the meaning of sub-
\nletting had been explained to mean transfer of an
\nexclusive right to enjoy the property in favour of
\na third party in lieu of payment of some
\ncompensation or rent. It was observed that parting
\nwith legal possession meant parting with possession
\nwith the right to include and to exclude others and
\nthat mere occupation is not sufficient to infer
\neither sub-tenancy or parting with possession.\n<\/p>\n
12.\tReliance was also placed on the decision of
\nthis Court in Bharat Sales Limited v. Life Insurance
\nCorporation of India<\/a> [(1998) 3 SCC 1] in which it
\nwas held that sub-tenancy or sub-letting comes into
\nexistence when the tenant gives up possession of the
\ntenanted accommodation wholly or in part and puts
\nanother person in exclusive possession thereof in
\nsuch process. Rather, the scene is enacted behind
\nthe back of the landlord, concealing the overt acts
\nand transferring possession clandestinely to a
\nperson who is an utter stranger to the landlord. It
\nwas further observed that it is the actual, physical
\nand exclusive possession of that person, instead of
\nthe tenant, which ultimately reveals to the landlord
\nthat the tenant to whom the property was let out has
\nput some other person into possession of that
\nproperty.\n<\/p>\n
13.\tThe learned counsel for the respondent also
\nreferred to the decision of this Court in  Joginder
\nSingh Sodhi vs. Amar Kaur<\/a> [ (2005) 1 SCC 31], in
\nwhich, while dismissing the special leave petition
\nfiled by the landlord this Court observed that as
\nfar as sub-letting was concerned, two ingredients,
\nnamely, parting with possession and monetary
\nconsideration therefor have to be established. It
\nwas submitted that neither of the two ingredients
\nhad been proved in the instant case and all that was
\nrelied upon by the Appellate Authority was the
\nreport of the local commissioner which indicated
\nthat Lachhman Singh was operating from a portion of
\nthe shop-room where he had fixed a feet-driven
\nsewing machine.  Regarding parting with exclusive
\npossession learned counsel submitted that the
\nrespondent No.1 was always in possession of the
\nentire shop-room and the key of the shop-room was
\nretained by him and till he opened the shop-room no
\none had access thereto. Various other decisions were
\nalso referred to on behalf of the respondents, which
\nneed not detain us.\n<\/p>\n
14.\tThe learned counsel submitted that there was no
\nmerit in the appeal and both the Rent Controller and
\nthe High Court had correctly dismissed the eviction
\npetition filed by the appellant\/landlord.\n<\/p>\n
15.\tWhat constitutes sub-letting has repeatedly
\nfallen for the consideration of this Court in
\nvarious cases and it is now well-established that a
\nsub-tenancy or a sub-letting comes into existence
\nwhen the tenant inducts a third party\/stranger to
\nthe landlord into the tenanted accommodation and
\nparts with possession thereof wholly or in part in
\nfavour of such third party and puts him in exclusive
\npossession thereof.   The lessor and\/or a landlord
\nseeking eviction of a lessee or tenant alleging
\ncreation of a sub-tenancy has to prove such
\nallegation by producing proper evidence to that
\neffect.  Once it is proved that the lessee and\/or
\ntenant has parted with exclusive possession of the
\ndemised premises for a monetary consideration, the
\ncreation of a sub-tenancy and\/or the allegation of
\nsub-letting stands established.\n<\/p>\n
16.\tAll the different cases cited on behalf of the
\nparties are ad-idem on this interpretation of the
\nlaw relating to the creation of a sub-tenancy or
\nsub-letting.  As was observed by this Court in the
\ncase of Bharat Sales Limited (supra) the arrangement
\nregarding the creation of a sub-tenancy or grant of
\na sub-lease without the permission of the landlord
\nhas obviously to be done behind the scene to prevent
\nthe landlord from coming to learn of such
\narrangement and it is only after the landlord finds
\nthat stranger or a third party, other than the
\ntenant, was occupying the tenanted premises, does he
\nbecome aware of the creation of such sub-tenancy or
\ngranting of such sub-lease.  In the instant case,
\nfrom the report of the Local Commissioner appointed
\nby the Court it stands established that the
\nrespondent No.2, Lachhman Singh, was, in fact,
\noperating a feet-driven sewing machine from inside
\nthe shop-room comprising the tenanted premises.  The
\nsame has been interpreted in different ways by the
\nRent Controller, the Appellate Authority and
\nthereafter by the High Court.  From the evidence
\nthat  has come on record, it appears that the
\nrespondent No.2 had been accommodated by the
\nrespondent No.1 to assist him in his cloth business
\nby helping customers to assess the amount of cloth
\nrequired for their particular purposes.   The said
\nactivity did not give the respondent No.2 exclusive
\npossession for that part of the shop room from where
\nhe was operating and where his sewing machine had
\nbeen affixed.  The aforesaid issue has been
\ncorrectly decided both by the Rent Controller as
\nalso the High Court.   In our view, the learned
\nAppellate Authority has mis-construed the principles
\nrelating to parting with exclusive possession which
\nis one of the key ingredients for arriving at a
\nfinding regarding the creation of a sub-tenancy or
\ngrant of a sub-lease.  Since from the report of the
\nLocal Commissioner it only appears that the
\nrespondent No.2 was operating from a portion of the
\nshop-room, it is quite clear that the respondent
\nNo.1 had not parted with exclusive possession of the
\ntenanted premises as had been found both by the Rent
\nController and the High Court.  The main ingredient
\nof the creation of a sub-tenancy and\/or grant of a
\nsub-lease not having been established, it may at
\nbest be said that the respondent No.2 was a licensee
\nunder respondent No.1 which would not entitle the
\nappellant-landlord to obtain a decree for eviction
\nagainst the respondent No.1-tenant on the ground of
\nsub-letting.\n<\/p>\n
17.\tSince none of the other points appear to have
\nbeen urged before either the Appellate Authority or
\nthe High Court, we are not called upon to deal with
\nthe same.\n<\/p>\n
18.\tThe appeal accordingly fails and is dismissed.\n<\/p>\n
19.\tThere will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nirmal Kanta (Dead) Through Lrs vs Ashok Kumar & Anr on 28 March, 2008 Author: A Kabir Bench: C.K. Thakker, Altamas Kabir CASE NO.: Appeal (civil) 7160 of 2005 PETITIONER: Nirmal Kanta (Dead) through Lrs. RESPONDENT: Ashok Kumar & Anr. DATE OF JUDGMENT: 28\/03\/2008 BENCH: C.K. THAKKER & ALTAMAS KABIR JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-181725","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNirmal Kanta (Dead) Through Lrs vs Ashok Kumar & Anr on 28 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nirmal-kanta-dead-through-lrs-vs-ashok-kumar-anr-on-28-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nirmal Kanta (Dead) Through Lrs vs Ashok Kumar & Anr on 28 March, 2008 - 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