Dr. Bharat Bhushan Parsoon, J.Landlord Vinit Garg, respondent No. 1 herein, had filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter mentioned as the Act) for eviction of tenant Narender Kumar Jain, respondent No. 2 herein and Sunil Kumar Jain alleged sub-tenant, petitioner herein, from the residential premises located in the area of Ambala Cantt. Grounds of eviction pleaded in the petition were that:

(i) Tenant Narender Kumar Jain was in arrears of rent w.e.f. December, 2000 till August, 2003 @ Rs. 1,200/- per month;

(ii) The tenant without permission or consent of the landlord had sub-let the tenanted premises to Sunil Kumar Jain, petitioner herein by transferring his possession as also his rights in favour of Sunil Kumar Jain, whereas respondent Narinder Kumar Jain himself was not residing in the premises and was residing near Civil Hospital, Ambala Cantt; and,

(iii) Landlord required the tenanted premises for his own use and occupation as he was grown up and was going to marry soon.

2. Tenant Narender Kumar Jain admitted that he was tenant in the premises but claimed that after clearing all the payments of rent till October, 2000, he had handed over the premises to the landlord. Claim of petitioner/sub-tenant before the Rent Controller was denial of relationship of landlord and tenant. It was claimed that he had been residing in the tenanted premises since 1984 being a member of the joint family. It was disclosed by him that Narender Kumar Jain was his uncle.

3. For adjudication of the rival claim of the parties, following issues were settled for adjudication:

1. Whether the respondents are liable to be ejected from the tenanted premises on the grounds as prayed for OPP

2. Whether petition is not maintainable in its present form OPR

3. Whether the petitioner has no locus standi to file the present petition OPR

4. Relief.

4. After receipt of oral as well as documentary evidence, verdicting ground of non-payment of arrears of rent as also personal necessity against the landlord, eviction order was passed by the Rent Controller on the ground of sub-letting. In appeal preferred by Sunil Kumar Jain, petitioner herein, eviction of the tenant on the ground of sub-letting was upheld by the Appellate Authority.

5. In this revision petition, order dated 20.10.2007 of the Rent Controller and order dated 28.4.2009 of the Appellate Authority qua the findings on the issue of sub-letting are under challenge.

6. Impugning adjudication made by the Rent Controller as also by the Appellate Authority, it is claimed by the petitioner herein that when respondent No. 1 herein has miserably failed to prove that he is the owner of the premises and further that he was landlord qua respondent No. 2, no eviction order could have been passed. Claiming that respondent No. 1 was hand in glove with respondent No. 2, it is averred that he had gone even against his pleadings.

7. Referring to statement of Nareinder Kumar Jain as RW 1, it is claimed that he had never handed over the possession to the petitioner herein but to one Smt. Magan Pushpa but his statement was misread by both the Authorities under the Act. It is claimed that when there is neither any testimony of respondent No. 2 or other acceptable material or evidence to show that the petitioner had been introduced in the premises as a sub-tenant, sweeping statement of respondent No. 1 Vinit Garg as PW 1 could not have been construed against the petitioner.

8. It is pleaded further that overwhelming evidence in possession of the petitioner in the shape of driving licence and voter card showing his possession in the premises since 1984 as a member of the joint Hindu family was completely overlooked by the Authorities under the Act. In short, it is claimed that findings of both the courts regarding sub-letting against the petitioner are not legally tenable. Seeking acceptance of the revision petition, dismissal of the eviction petition of the landlord by way of reversal of impugned orders is sought.

9. Hearing has been provided to the counsel for the parties while going through the paper book.

10. Ground of non-payment of arrears of rent as also personal necessity was adjudicated against the landlord. Only ground of sub-letting has been held in favour of the landlord and that too concurrently by both the authorities under the Act. The present petition has been preferred not by the tenant but by the sub-tenant. The revisional jurisdiction of this Court in terms of sub-section 6 of Section 15 of the Act is limited for the purpose of satisfying as to "legality or propriety of the orders passed or of the proceedings conducted by the authorities under the Act". For ready reference, the said provision is appended as below: "The High Court as revisional authority, may at any time, on its own motion or on the application of any aggrieved party, made within a period of ninety days, call for and examine the record relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. In computing the period of ninety days the time taken to obtain a certified copy of the order shall be excluded."

11. In Dattonpant Gopalvarao Devakate Vs. Vithalrao Maruthirao Janagaval, , interpreting Section 50 of the Mysore Rent Control Act, 1961 which is pari-materia with Section 15(6) of the Act, Honble Supreme Court of India had held as under:

"It is true that the power conferred on the High Court under Section 50 is not as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure. But at the same time it is not wide enough to make the High Court a second court of first appeal."

12. Similarly, referring to Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, , Honble Apex Court had held as under:

"The language of Section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions appeal and revision are employed in the statute. Quite obviously, the expression revision is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression appeal. In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25, the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J., in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval; "it is not wide enough to make the High Court a second Court of first appeal".

13. Clearly enough in M/s. Sri Raja Lakshmi Dyeing Works and others case (supra), Honble Apex Court, in no uncertain terms, had held that concurrent findings based on evidence cannot be touched upon by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

14. More recently, in Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, of 2004 decided on 27.8.2014 titled Hindustan Petroleum Corporation Limited v. Dilbahar Singh, referring to Rukmini Amma Saradamma Vs. Kallyani Sulochana and others, , the Full Bench of Honble Supreme Court of India has held as under:

"Rukmini holds, and in our view, rightly that even the wider language of Section 20 of the Kerala Rent Control Act does not enable the High Court to act as a first or a second court of appeal. We are in full agreement with the view of the 3-Judge Bench in Rukmini that the word "propriety" does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. We approve the view of this Court in Rukmini."

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"The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law."

15. In view of aforementioned Full Bench judgment of Honble Supreme Court of India, ambit and scope of enquiry in revisional jurisdiction with this Court is very limited.

16. Learned counsel for the revisionist, however, has urged that not only the pleadings of the petitioner herein have all through been ignored by the Authorities below but evidence has also been mis-appreciated and misconstrued. It is claimed that the petitioner herein had all alone been living with tenant Narender Kumar Jain right from 1984 and thus, there is no question of he being a subtenant.

17. Counsel for the contesting respondent, on the other hand, has urged that all the pleas of the petitioner herein were duly considered by the Authorities below and having been found to be of no merit were rejected. It is urged that it is a proven case of sub-tenancy and the petitioner has rightly been ordered to be evicted alongwith tenant Narender Kumar Jain.

18. To examine the rival claims of the parties, it would be appropriate to refer to their pleadings. Pleadings of the respondent-landlord on the ground of sub-letting contained in para 4(b) of the petition for ready reference are being reproduced as below:

"(b) That the respondent No. 1 without the prior permission or consent or any knowledge of the petitioner has sublet the premises in dispute to respondent No. 2 who is at present in possession of the premises in dispute and the respondent No. 1 himself is residing near Civil Hospital, Ambala Cantt. and the respondent No. 1 has transferred his rights in favour of respondent No. 2 for consideration."

19. Version of the tenant-respondent No. 2 herein as contained in his reply to para 4-B above is as under:

"(b) That sub-para (b) of the petition is wrong and hence denied. It is incorrect that the respondent No. 1 has sub-let the premises in question to respondent No. 2."

20. His further plea in para 1 is as under:

"Anyhow the respondent No. 1 was a tenant in the premises in question upto October, 2000. In November, 2000 the answering respondent left the tenancy premises and handed over the possession to the petitioner and all the accounts upto October, 2000 i.e. upto date of leaving the tenancy premises by the answering respondent were settled and nothing was due."

21. So far as sub-tenant, petitioner herein is concerned, his stand is as below:

"It is incorrect that the respondent No. 1 has sublet the premises in question to respondent No. 2. As already submitted that the answering respondent is living in the said premises since 1984 and it was a joint family who was living in the said premises."

22. In addition, he has also taken the following stand:

"Anyhow the answering respondent is living in the said premises since 1984. It was the joint family who was living in the property in question. Even driving licence and voter card has been issued on the same address which shows that the answering respondent is living in the said premises since 1984. The rate of rent as alleged in this para is not disputed. Even water connection has been issued in his name."

23. From the co-joint reading of these pleadings of the parties, it is abundantly clear that tenant Narender Kumar Jain, respondent No. 2 herein has conceded that he continued as a tenant in the premises only upto October, 2000 and handing over the possession of the landlord, respondent No. 2 herein after clearing the accounts had left the premises. Stand of the sub-tenant Sunil Kumar Jain, petitioner herein, however, is that he is there in the premises right since 1984 as a member of the joint family who was living in the said premises.

24. If we examine the pleadings of the landlord repudiating the pleas of tenant Narender Kumar Jain, respondent No. 2 herein, the landlord has reiterated his stand in the replication in the following words:

"4(a) That para No. 4(a) of the reply is wrong and hence denied and that of the petition is correct and is reasserted. The respondent No. 1 never handed over the possession in October, 2000 to the petitioner as alleged and never paid upto date arrears as alleged."

25. His further stand in para No. 1 of the replication is as below:

"The petitioner is the landlord and owner of the premises in question and the respondent No. 1 is tenant under him and the respondent never handed over the possession of the premises in dispute to the petitioner in November, 2000 as alleged and he has not paid the rent upto date as alleged, but on the other hand, the respondent No. 1 without the prior permission and consent or knowledge of the petitioner has sublet the premises in dispute to the respondent No. 2 who is at presently is in possession of the premises in dispute."

26. Similarly, seriously questioning the stand of sub-tenant Sunil Kumar Jain, petitioner herein, stand of the landlord is as under:

"4(a) That para No. 4(a) of the written statement is wrong hence denied and that of the petition is correct and reasserted. However, the respondent No. 2 who is a sub-tenant has tendered the rent on the behest of the respondent No. 1 but the same was taken by the petitioner only under protest that the respondent No. 2 is not a tenant in the premises in dispute and respondent No. 1 is only a tenant."

27. Further stand of the landlord in para No. 1 of the replication to the written statement of respondent No. 2 is as under:

"It is wrong that the respondent No. 2 and respondent No. 1 are the members of the joint family and were living jointly in the house in dispute, but on the other hand, the respondent No. 2 is only a sub-tenant in the premises in dispute inducted by the respondent No. 1 without the prior knowledge and consent of the petitioner only in 2003 and the petitioner is the owner and landlord of the premises in dispute."

28. From the pleadings, it is manifested that the petitioner herein is continuing in possession of the premises. In his pleadings, there is no denial that Narender Kumar Jain, respondent No. 2 herein was a tenant in his individual capacity. Neither there is any document nor evidence to show that any joint Hindu family was a tenant in the premises. Relationship of the petitioner herein and respondent No. 2 herein as nephew and uncle is not disputed but in the interface of individual tenancy of landlord Vinit Garg, respondent No. 1 herein, the petitioner herein has no existence. If we go by statement of tenant Narender Kumar Jain, respondent No. 2 herein, he has clearly stated that Sunil Kumar Jain, the petitioner herein earlier to November, 2000 was not even residing in Ambala and was resident of some other place. Merely because the petitioner or his father were on visiting terms with Narender Kumar Jain, they do not have any right, title or interest in the tenancy of Narender Kumar Jain. It is noteworthy that version of Narender Kumar Jain (RW 4) is not innocuous but clearly reveals that the petitioner herein is residing in the premises having been brought therein only by respondent Narender Kumar Jain. Even if plea of Narender Kumar Jain that he had left the premises in dispute after October, 2000 is taken for evaluation, in his cross-examination, he does not deny that sub-tenant Sunil Kumar Jain, petitioner herein had entered the premises at the same time when he had withdrawn therefrom. Notwithstanding his denial that he had not been brought in the premises this part of his cross-examination leaves no manner of doubt that tenant Narender Kumar Jain and landlord Vinit Garg had not been living together but Sunil Kumar Jain is in possession of the premises whereas respondent Narender Kumar Jain is no more in possession of the premises.

29. When it is conceded case of the parties that Narender Kumar Jain was the tenant and continued to be so, there is no reliable evidence except for sweeping statement of Narender Kumar Jain himself that he had left the premises handing over the possession thereof to the petitioner after settling the accounts till October, 2000 somewhere in November, 2000.

30. It is important to notice that even respondent Narender Kumar Jain tried to make statement divergent to his pleadings when he has stated that he had delivered the possession to Smt. Magan Pushpa somewhere in October, 2000 and thus, denying the status of respondent Vinit Garg as landlord, it has rightly been appreciated by the Rent Controller as well as by the Appellate Authority that Narender Kumar Jain could not go far and beyond his pleadings and by such admission has conceded Vinit Garg to be landlord. Plea of the counsel for the petitioner that Vinit Garg had no relationship of landlord with Narender Kumar Jain, thus, is not tenable. It is, rather, to be noticed that respondent Narender Kumar Jain has neither filed the appeal himself nor has been participating in the proceedings. Only the petitioner/sub-tenant is keeping the litigation alive despite concurrent findings of sub-tenancy having been recorded against him by both the Authorities below.

31. Having found himself in a tight position, claim of the petitioner during the petition is that he had made tender of rent on 15.10.2004 and thus, even otherwise, the relationship of landlord and tenant subsists between him and Vinit Garg even if his plea that he was member of joint Hindu family of Narender Kumar Jain who was tenant under Vinit Garg is not accepted. This plea is also not tenable. It has abundantly been clarified by the respondent-landlord that rent was accepted from tenant Narender Kumar Jain and that too under protest. By no means, tender of rent by a subtenant apparently for and on behalf of the tenant makes him to be a tenant in his individual capacity under the landlord.

32. Though there is no positive documentary evidence proved by the petitioner herein that he has his driving licence, voter card etc. in the premises but even if it is so, it does not make him a tenant because being nephew of tenant Narender Kumar Jain if he has given address of the premises for preparation of his driving licence or voter card etc., he does not become a tenant under landlord Vinit Garg.

33. When possession of the petitioner is not denied by him and he has not been able to prove that not Narender Kumar Jain but joint family was a tenant, no right or interest of the petitioner accrues there in the premises. Since Narender Kumar Jain has not been able to prove delivery of possession by him to landlord Vinit Garg and possession of the petitioner is established with further impeccable evidence that Narender Kumar Jain is no more residing in the premises but is residing elsewhere, it is a clear case of parting of the possession of the premises with no regulation, superintendence or control of Narender Kumar Jain on the premises in litigation. No doubt, to prove sub-letting in addition to parting of possession, evidence, it is required to prove that it was for consideration, but sub-letting being a secret arrangement, direct evidence of parting of possession for consideration is difficult to find out. At this stage, reference may be made to Joginder Singh Sodhi Vs. Amar Kaur, . In this authority, Honble Apex Court has clearly held that though burden of proof of subletting is on the landlord but once he establishes parting of possession to a third person, onus would shift on the tenant. In the said case, the landlord had established parting of possession, shifting onus on the tenant to explain as to how the appellant who was son of the tenant and was not staying with his father and further was also doing his independent business, came to occupy the shop rented to the tenant, i.e., his father. On tenants explanation having been found not plausible, it was held by the authorities concerned that the tenant had sublet the shop to the appellant. This adjudication made by the authorities was upheld.

34. In yet another case reported as Vaishakhi Ram and Others Vs. Sanjeev Kumar Bhatiani, , it was held as under:

"11. It is well settled that the burden of proving subletting 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 subletting. Reliance can be placed on the decision of this Court in the case of Joginder Singh Sodhi Vs. Amar Kaur, . Therefore, we are in full agreement with the High Court as well as the courts below that since the appellant Nos. 2 to 4 had been in exclusive possession of the suit shop and the appellant No. 1 could not prove that it was not a case of subletting, the suit shop had been sublet by the appellant No. 1 in favour of the appellant Nos. 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 subletting."

35. Making observations in the same tone and temper, a Coordinate Bench of this Court has held that if the landlord proves exclusive possession of the tenant, it was for the tenant to prove that possession of another person was permissive and without consideration. To the same effect is yet another authority of a Coordinate Bench of this Court reported as Om Parkash alias Chitru and Another Vs. Balwant Rai and Others, , wherein it was held as under:-

"9. There can be no doubt that the onus to establish subletting lies on the shoulders of the landlord. There can also be no doubt that while discharging the aforesaid onus, the landlord must establish that exclusive possession of the premises has been vested in the alleged sub-tenant. However, in so far as the second ingredient is concerned, namely, whether the transfer of possession by the tenant to the sub-tenant is for consideration, it has been held that the second ingredient is personal to the tenant and the sub-tenant and it is not possible to be proved by any direct evidence and that it must be presumed from the proof of the first ingredient. In such circumstances, as is evident from the text reproduced above, if exclusive possession of the alleged sub-tenant is established, it will be natural to draw an inference that the passing on of possession to the sub-tenant by the tenant is for consideration."

36. Co-joint study of the authorities of various High Courts and Honble Apex Court cited by both the parties is sufficient to arrive at the legal position with regard to subletting. It may be concluded that onus of proving subletting is on the landlord. However, once this onus is discharged by the landlord to the extent that the sub-tenant is in exclusive possession of the premises, then onus shifts to the tenant to prove that it was not a case of subletting and further that in which capacity the alleged sub-tenant was in possession of the tenanted premises. If the landlord proves exclusive possession of a sub-tenant, the tenant to ward off this conclusion, is required to prove that possession of another person, i.e., the alleged subtenant was permissive and without consideration.

37. After analysis of facts as also law on the point, the Rent Controller as well as the Appellate Authority had come to a firm finding of fact against the tenant clearly holding that the tenant had sub-let the premises to Sunil Kumar Jain, petitioner herein and has no more control over the tenanted premises.

38. Finding of fact on this count rendered by the Rent Controller having been affirmed by the Appellate Authority leaves little scope for interference by this Court particularly when the petitioner-tenant has not been able to point out any infirmity in both the impugned orders and no case for mis-appreciation of evidence or wrong application of law is made out.

39. It clearly emerges that when entire gamut of facts and attending circumstances are examined, it is clear that taking shelter in relationship of uncle and nephew inter-se tenant Narender Kumar Jain, respondent No. 2 herein and sub-tenant Sunil Kumar Jain, petitioner herein are dodging the law though it is a clear case of subletting. Since neither the tenant nor the sub-tenant has been able to prove as to how the petitioner is continuing in the premises unhindered in possession and unfettered in his control of the business being run by him therein, in the facts and circumstances of the case, in view of authorities Om Parkash alias Chitrus case (supra); Joginder Singh Sodhis case (supra) and Vaishakhi Ram and others case (supra), is to be presumed. As a sequel to the above discussion, it is held that the concurrent findings recorded by the Rent Controller as well as of the Appellate Authority with regard to subletting of the shop, do not suffer from any infirmity or illegality and thus affirming the same, this petition, being without any merit, is dismissed.