Smt. Shabira Bala Manyar vs Maruti Baburao Gonjare and Others

D.G. Deshpande, J.—Both these civil applications have been filed by the respective petitioners for setting aside the order of dismissal of the petitions passed by me on 30.6.1999 on the ground that the petitions stood abated. Counsel for the respondents does not have any objection in allowing both these civil applications. Hence they are allowed. Order of abatement passed in both the petitions is set aside. Both petitions are restored to file and prayer (c) of the civil applications is granted. Amendment should be carried out within 24 hours. After the petitions were restored to file, they were heard on merits. However, both these petitions are arising out of common judgment and decree, they are disposed of by this common order.

The respondent is the landlord and petitioner Shabira Bala Manyar is the tenant and other petitioner Gangaram is the sub-tenant. According to the landlord, the suit for ejectment was filed against both of them by the respondent on the ground of habitual default and subletting. The Trial Court decreed the suit upholding the contention of the respondent. The appeal preferred by the petitioner came to be dismissed and hence this petition.

In fact, the judgments of the Trial Court and Appellate Court do not require any interference and even no discussion regarding the views taken by them is required because nothing was argued to point out that either the judgments of the Trial Court and that of the Appellate Court are perverse or based on misconception of law. So far as ground of habitual default is concerned, even if it is accepted for the sake of arguments that the payment of rent was made by the petitioner/tenant before putting in his appearance in the suit that will not vitiate the ground raised by the landlord about tenant being in habitual default. The facts on record as rightly held by the Appellate Court reveal that even though the suit of the respondent was pending before the Trial Court for more than two years. The tenant/petitioner Shabira did not deposit the rent in the Court, even though the rent was payable annually. The Appellate Court, has therefore, rightly held that Shabira was in arrears of rent and was in habitual default.

So far as subletting is concerned, it was contended by the counsel for the petitioner that in both the matters initial burden of proving the subletting was on the landlord and unless landlord discharged the burden, same did not shift on the tenant or sub-tenant. In this regard the Trial Court has relied upon a judgment of Rajasthan High Court Phool Chand and Another Vs. Girraj Prasad, wherein it is held that:-

It is well settled that initially the onus of proving that the tenant has assigned sublet or otherwise parted with possession of the leasehold, lies on the landlord and not on the tenant. As subletting takes place without the consent of the landlord, he is generally a stranger to agreement of subletting between tenant and sub lessee and it is difficult for him to produce direct evidence. To prove subletting the landlord has no alternative but to rely on attending circumstances. Once it is proved that there has been transfer of possession of the leasehold property without the permission of the landlord, the only person who can account for it, are the lessee and his transferee. On the proof of transfer of possession of the leasehold property, the onus shifts upon the tenant to make out that transfer of possession cannot be attributed to subletting or assigning as the tenant, even after transfer of possession, retained the right to claim the possession.

The Trial Court has also taken into consideration the circumstances which are sufficient in its opinion to hold that the petitioner Shabira has subletted the premises.

It is true that the landlord respondent has admitted in his evidence that apart from the photographs of the suit premises he has no other evidence to prove the subletting. However, that admission has to be taken into consideration along with the evidence of two witnesses examined by the landlord in that regard.

Admittedly, subletting is a mater to which the landlord cannot be a party and therefore he cannot have any source to know the terms and conditions of subletting. He could only prove that the possession of the tenanted premises is transferred to somebody and bring on record certain circumstances which are indicative of relationship of tenant and subtenant. Once this initial burden is discharged by the landlord then burden will shift on the tenant or subtenant to prove what kind of relationship existed between them. Admittedly, in this matter, the subtenant did not enter into witness box. It may be that in his written statement he has not claimed any right in the suit premises, but the circumstances brought on record are clearly afterthought and are device to protect his interest in the suit premises and to avoid the decree being passed against him.

The most important circumstance regarding handing over of possession by the tenant to the sub-tenant is a set of photographs proved on record by the landlord. The evidence in that regard has been considered by both the Courts at length, and strong convincing and logical reasons have been given by both of them accepting the photographs as a material piece of evidence in coming to the conclusion, that there was subletting of the suit premises. I do not find any defect in the judgments of the Trial Court and of the Appellate Court. Consequently, there is no merits in any of these petitions. Hence both the petitions are dismissed with costs throughout. Rule discharged. Stay, if any, vacated. Amendment to be carried out by tomorrow.