1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 376 OF 2009 Mr. Menino Dias, R/0 Nagmodem, Sinketim, Navelim, Salcete, Goa. ... Petitioners versus Mr. Vassanta N. Quenim, r/o Navelim, Salcete, Goa. (Since deceased), through his legal representatives: 1. Mr. Raju Vassanta Keni, alias Raju Vassanta Quenim, resident of Borda, Margao, Goa. 2. Mrs. Shanta Ananta Naique Sardessai alias Shanta Vassanta Quenim, 3. Mr. Mahesh Vasant Keny Both residents of Nagmoddem, Sinketim, Navelim, Salcete, Goa, presently residing at Flat No.A/F-2, First Floor, Kutarkar Nagri, Shantinagar, Ponda, Goa. ... Respondents Shri Ryan Menezes, Advocate for the Petitioners. CORAM : N. A. BRITTO, J. DATE : 26TH JUNE, 2009. 2 ORDER Heard. 2. This is a tenant's Writ Petition and is directed against Judgment dated 12-5-2009 of the learned Administrative Tribunal, Panaji, upholding the Judgment dated 4-11-1996 of the Rent Controller, directing his eviction. 3. The landlord(since deceased, and now represented by his legal representatives, the Respondents) had filed eviction proceedings against the tenant(Petitioner herein) for his eviction on three grounds available to him in terms of GDD Buildings(LRE) Control Act, 1968, and the eviction has been ordered on the ground of sub-letting. 4. There is no dispute that the lease was created by the landlord in favour of the tenant by a written agreement dated 12-10-1974 by which five rooms of the house situated at Sinquetim, Navelim, was given to the tenant for the purpose of residential or industrial use. The application for eviction was filed on 25-8-1975(more than 30 years back) alleging that the tenant had sub-let the said five rooms to Smt. Maria Luiza Dias who was running a bakery oven in the name of Romano Rebello in contravention of the said agreement. The allegations as regards the other grounds are not relevant for our purpose. The plea taken by the tenant was that originally the bakery license was in the name of his father and Maria Luiza Dias and after the death of their father the said license was 3 transferred in his name, though the bakery business was carried on by him and his said sister, the said Maria Luiza Dias. 5. The landlord examined himself and one more witness and also produced a letter of the Mamlatdar which showed that the bakery was being run by Romano Rebello. The tenant examined himself but did not produce any other evidence either oral or documentary. 6. The learned Rent Controller held that the tenant had not led sufficient evidence to prove that he along with his sister were running the business in the suit premises. On the other hand, the landlord had brought satisfactory evidence on record to show that the bakery unit was being run by Romano Rebello and Maria Luiza Dias who was residing in the suit premises without his consent. The learned Rent Controller also held that even assuming that the said Maria was the sister of the tenant she did not come within the purview of the definition of tenant given in Section 2(p) of the Act since married sisters are not included within Section 2(p) of the Act, and thus concluded that the applicant had succeeded in proving that the truant had transferred his right without the written consent of the landlord and as such he was entitled for the eviction of the tenant. 7. The learned Administrative Tribunal noted that there was a specific clause in the contract that the tenant was not entitled to sub-let the premises. The learned Tribunal noted that there was specific allegation about running of the 4 bakery by Romano Rebello in the suit premises but there was no specific denial made by the Petitioner in the written statement as regards the same. The learned Tribunal also noted that the tenant had claimed that the license was in his name but has not produced the same nor any documents in support of his claim. The learned Tribunal also noted that the tenant was not residing in the suit premises and the suit house was occupied by the said Maria Luiza Dias and the said Romano Rebello runs a bakery therein. The evidence as regards the running of the bakery by the said Romano Rebello was not rebutted and the appellants had not produced any documents showing his interest and activity in the suit premises. 8. Learned Counsel on behalf of the Petitioner/tenant submits that the learned Tribunal placed the onus on the tenant to prove that the tenant had not sub-let the premises. Learned Counsel further submits that the landlord had not proved that the tenant had parted with the possession of the suit premises. It is his further submission that the legal possession had remained with the tenant and merely because somebody was required to occupy it did not mean that the premises were sub-let. He further submits that it was not the case of the landlord that the suit premises were sub-let for consideration and that was one of the requirements of law which was required to be proved. 9. There is no dispute that the tenancy was created under a written agreement and sub-letting was prohibited. There is also no dispute that the Petitioner-tenant is not residing in the suit premises and resides elsewhere. The 5 landlord had sufficiently proved with his own evidence and that of his witness that three of the rooms were under exclusive occupation of the said Maria Luiza Dias and in two of the rooms the said Romano Rebello was running a bakery and this fact was sufficiently corroborated by the production of the letter from the Mamlatdar. Learned Counsel on behalf of the Petitioner submits that the said letter only gives house number and the said house number is not proved to be of the suit premises. It was not the case of the tenant that the said Romano Rebello was running some other bakery in the same ward of Sinquetim, in Navelim village, and if that be so at least a suggestion to that effect ought to have been put to the landlord. The said letter could have referred only to the suit premises. The landlord had proved by evidence, including the said letter that the premises were in exclusive possession of the said Maria and Romano. Learned Counsel relying on Dipak Banerjee v. Lilabati Chakraborty(AIR 1987 SC 2055) submits that the landlord had to prove not only exclusive possession but also payment of rent. The observation of the Apex Court such as “as there is no finding of exclusive possession nor of any payment of money in exchange of the user of the part of the premises the finding of sub-letting cannot in law be upheld” cannot be taken to be the law on the subject. The landlord had sufficiently proved that the premises were exclusively occupied by the said Maria Luiza Dias and the said Romano Rebello. What was required in law is sub-letting i.e. parting away with the possession of the suit premises. Whether rent was being paid by the sub-tenant to the tenant is a fact which would be in the exclusive knowledge of either of them and such a fact cannot be expected to be proved by the landlord. In fact the tenant 6 has admitted in his cross-examination that the bakery was being run by the said Romano Rebello when he stated that since both of them were keeping indifferent health they had engaged one person to run the bakery whose name he did not know. Once the landlord had proved that the suit premises were exclusively possessed by the said Maria and Romano, the onus was clearly on the tenant to show in what manner he exercised his right of possession. The tenant did not produce the bakery license which he claimed was in his name and certainly an adverse inference ought to be drawn against him. The tenant also did not examine the said Maria or Romano to explain on what terms they were in possession of the suit premises. The approach of the tenant was most casual. 10. Both the authorities below have given concurrent findings based on evidence produced and on balance of probabilities of the case that the tenant had sub-let the premises to the said Maria Luisa Dias and the said Romano Rebello. 11. In the circumstances, therefore, this is not a fit case for interference in writ jurisdiction. Petition dismissed in limine. N. A. BRITTO, J. RD