Case: Prem Prakash Vs. Santosh Kumar Jain

he was doing the business in the name and style of M/s R.R. Jewellers. The respondent-owner has brought on record the list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.) Ltd. wherein for R.R. Jewellers, the address mentioned is that of the suit property and the phone number is exactly the same as mentioned on the business card of M/s Aashima Jewellery" i.e., `3901361. Respondent No. 2 has admitted the fact of doing business in the name of M/s Aashima Jewellery" which is also evident from the business card used by him having the address of the suit property and the telephone number `3901361 whereas he denied to have worked under the name and style of M/s R.R. Jewellers but the very fact is falsified by the evidence in the form of subscribers list of Delhi Sanchaar Sewa wherein the same telephone number, i.e., `3901361 has been given. Meaning thereby, Respondent No. 2 was doing business in the suit premises independently of the appellant herein.14. Undoubtedly, the initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.15. In this regard, it is appropriate to quote a decision of this Court in Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh AIR 1968 SC 933 wherein it was held that when eviction is sought on the ground of sub-letting, the onus to prove sub-letting is on the landlord. If the landlord prima-facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.16. Again, in Kala and Anr. v. Madho Parshad Vaidya, 1998(2) R.C.R.(Rent) 279 : (1998) 6 SCC 573 , this Court reiterated the very same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.17. In Vaishakhi Ram & Ors. v. Sanjeev Kumar Bhatiani 2008(2) R.C.R.(Civil) 202 : 2008(1) R.C.R.(Rent) 311 : 2008(2) Recent Apex Judgments (R.A.J.) 173 : (2008) 14 SCC 356 , it was held as under:-"21.It is well settled that the burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting. Reliance can be placed on the decision of this Court in Joginder Singh Sodhi v. Amar Kaur. Therefore, we are in full agreement with the High Court as well as the courts below that since Appellants 2 to 4 had been in exclusive possession of the suit shop and Appellant 1 could not prove that it was not a case of sub-letting, the suit shop had been sub-let by Appellant 1 in favour of Appellants 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of sub-letting."18. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case.19. In the present facts and circumstances of the case, we are of the opinion that the original owner-respondent No. 1 herein has proved beyond doubt that the property is in exclusive possession of the sub-tenant and the appellant herein has not been able to deny the claim of sub-tenancy in favour of Respondent No. 2. The absence of evidence and failure to discharge the onus lay heavy on appellant and there could be no presumption other than that the suit premises had been sublet and parted with possession by the appellant herein to the Respondent No. 2.Conclusion:-20.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. A bare perusal of the visiting card of M/s Ashima Jewellery having the name of Respondent No. 2 clearly proves that thewas neither an employee nor was looking after the customers of the appellant herein in his absence but he was carrying on his personal business under such name. There is no point in denying the fact that why a tenant will allow a person, who is working under him, to print visiting cards in hisname for the property in question.13. Further, the other visiting card is having the name of "M/s R.R. Jewellers". The allegedhas denied the claim in the affidavit filed before the courts below that earlier he was doing the business in the name and style of M/s R.R. Jewellers. Thehas brought on record the list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.) Ltd. wherein for R.R. Jewellers, the address mentioned is that of the suit property and the phone number is exactly the same as mentioned on the business card of M/s Aashima Jewellery" i.e., `3901361. Respondent No. 2 has admitted the fact of doing business in the name of M/s Aashima Jewellery" which is also evident from the business card used by him having the address of the suit property and the telephone number `3901361 whereas he denied to have worked under the name and style of M/s R.R. Jewellers but the very fact is falsified by the evidence in the form of subscribers list of Delhi Sanchaar Sewa wherein the same telephone number, i.e., `3901361 has been given. Meaning thereby, Respondent No. 2 was doing business in the suit premises independently of the appellant herein.14. Undoubtedly, the initial burden to prove that theis in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.In the present facts and circumstances of the case, we are of the opinion that the originalNo. 1 herein has proved beyond doubt that the property is in exclusive possession of theand the appellant herein has not been able to deny the claim ofin favour of Respondent No. 2. The absence of evidence and failure to discharge the onus lay heavy on appellant and there could be no presumption other than that the suit premises had been sublet and parted with possession by the appellant herein to the Respondent No. 2.