CR No.674 of 1995 (O&M) -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.674 of 1995 (O&M) Date of decision:20.01.2011. Krishan Kumar ...Petitioner Versus Kamla Devi and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Avnish Mittal, Advocate, for the petitioner. Mr. N.L.Sammi, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The tenant is in revision against the order of reversal by which he has been ordered to be evicted from the demised premises on the ground of subletting. In brief, the respondent No.1/landlord filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] against the petitioner and respondent Nos.2 and 3 on the ground of non-payment of rent w.e.f. 01.07.1989 @ `100/- per month and subletting of the demised premises by Krishan Kumar to Sham Lal and Nikka, who had started confectionary shop, alleging that Krishan Kumar had left the demised premises and is running a Fair Price Shop. On appearance, the petitioner had pleaded that there is no arrears of rent and also denied the allegation of creation of sub-tenancy. On the pleadings of the parties, following issues were framed on 13.09.1990 by the learned Rent Controller:- “1. Whether the respondent No.1 sublet the shop in dispute to respondents Nos.2 and 3?OPA. 2. Whether the respondent No.1 has changed the business from Karyana Shop?OPA. 3. Relief.” CR No.674 of 1995 (O&M) -2- ******* Issue No.1 was the material issue, on which a categorical finding was given by the learned Rent Controller to the effect that the landlord has failed to lead any cogent evidence to prove the subletting by respondent No.1 and resultantly the eviction petition was dismissed. The Appellate Authority, however, reversed the finding of learned Rent Controller on issue No.1 on a presumption that since respondent No.1 Krishan Kumar is having license from the Food and Supply Department to run a Fair Price Shop, therefore, he has given the demised premises to his brothers to run the confectionary shop. Learned counsel for the petitioner has vehemently argued that the findings of the learned Appellate Authority are more on presumption then on evidence and are unsustainable in the eyes of law because the landlord has failed to prove, by leading cogent evidence, the factum of parting with possession by Krishan Kumar in favour of his brothers, namely Sham Lal and Nikka. He has relied upon the decisions of this Court rendered in the case of Syed Feroze Ali Shah Vs. Syed Jamil Ali Shah and another, 1980(2) RCR(Rent) 320 and in the case of Smt. Sushila Devi Gandhi Vs. Hira Lal and others, 2007(1) RCR(Rent) 575. On the other hand, learned counsel for respondent No.1 has argued that even if there is no direct evidence to prove the subletting, but the circumstantial evidence is sufficient to prove that the petitioner has parted with possession of the demised premises in favour of respondent Nos.2 and 3 without the consent of the landlord. In this regard, he has referred to the observations made by the Appellate Court in his favour. I have heard both learned counsel for the parties and perused the record with their assistance. The whole case set up by the landlord to prove sub-tenancy is based upon the fact that the petitioner Krishan Kumar is also doing the business of Fair Price Shop in the shop at Mohinder Ganj, Rajpura as he has taken license for sale of retail goods. However, there is no direct evidence available on record to prove that the petitioner has parted with possession of the demised premises because the landlady Kamla Devi, who appeared as AW1, has stated in her cross-examination that she had not visited the demised premises from the last 2-3 years. She did not produce any witness from the locality much-less the neighbourhood of the demised CR No.674 of 1995 (O&M) -3- ******* premises to prove that the petitioner had parted with possession of the demised premises nor she led any evidence to prove that the petitioner is running a Fair Price Shop/Ration Depot physically. The mere presence of his brothers in the demised premises is not sufficient to prove that he has parted with possession especially when he had proved the bills Ex.R8 to Ex.R12, some of which are after the date of filing of the ejectment petition. The petitioner had examined Kharaiti Lal (RW2) who stated that Krishan Kumar is running a Karyana shop in the demised premises from whom he used to purchase the household goods everyday. It is needless to mention that presumption cannot take the place of proof and in order to seek eviction on the ground of subletting, the landlord has to rely upon the convincing evidence to prove that the original tenant had parted with possession of the demised premises. In this regard, the judgments relied upon by learned counsel for the petitioner came to the rescue of the tenant as in the case of Syed Feroze Ali Shah (supra), it was held that the brother of the original tenant used to sit on the shop but there is no evidence to show that the original tenant was receiving any consideration, then it would not amount to parting with legal possession and give a cause of action to the landlord to file a petition under Section 13 of the Act to seek eviction on the ground of subletting. Similarly, in the case of Smt. Sushila Devi Gandhi (supra), it was held that the wife inherited the tenancy rights after the death of her husband/tenant and is continuing in the business along with brother of her husband, it would not amount to subletting. Thus, in view of the aforesaid discussion, I am of the view that in order to prove subletting, the landlady is required to lead cogent evidence to prove parting of physical possession by the original tenant in favour of the sub-tenant and that too for a consideration. In view of the above, the present revision petition is found to be meritorious and as such, the same is hereby allowed and the order of eviction passed by the learned Appellate Authority, reversing the order of the learned Rent Controller, is hereby set aside. No costs. January 20, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE