S.S. Nijjar, J.
1. This judgment will dispose of CR No. 1933 of 1986 and CR No.2490 of 1986 as they are directed against the common judgment given by Mr. N.S.Saini, Rent Controller, Ferozepur dated 31.1.1985 dismissing the Eviction Application of the respondent-landlady and the judgment of the Appellate Authority, Ferozepur dated 2.6.1986 in Rent Appeal No,14 of 1985 and Rent Appeal No.16-R of 1985.
2. Bhupinder Kaur, the respondent land-lady filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 seeking eviction of the petitioner in the Court of Rent Controller, Ferozepur. Initially, the petitioner was inducted as a tenant in the, premises by Brij Mohan Lal who was the owner of the demised premises. Bhupinder Kaur, the present landlady purchased the aforesaid premises and hence became the landlady of the petitioners. The eviction was sought on the grounds of nonpayment of rent at the rate of Rs.140/- per month from 1.10.1977 till the filing of the petition on 3.1.1983 and for sub-letting the back portion of his shop by the tenant-Madan Pal to his son, Mohinder Kumar, petitioner No.2. It was alleged that petitioner No. 1 had sublet the demised premises to petitioner No.2 for running a separate business in the back portion of the shop without the written consent of the landlady. The separate replies were filed by the petitioners denying the claim of the respondent-landlady. The allegation of subletting was specifically denied. It was stated that petitioner No.1 was the actual tenant in possession of the shop which had been taken for the business ofcloth merchant styled as Madan Di Hatti and M/s Madan Lal Mohinder Kumar. It was stated that petitioner No.2, Mohinder Kumar as well as his son, Vijay Kumar had only been assisting the tenant in the business. Therefore, the presence of the son in the business premises was merely that of a licensee. He had no independent right either in the business or in the occupation of the demised premises. Following issues were framed by the Rent Controller: -
'1. Whether the respondent No.1 was a tenant on the demised premises on rent Rs.140/- per month under the application? OPA.
2. Whether respondent No.1 has sublet a part of the shop in question to respondent No.2? If so its effect? OPA.
3. Relief.'
3. Since the arrears of rent were tendered in Court, the issue No.1 was decided in favour of the respondent-landlady. The main contest between the parties was on issue No.2. The landlady claimed that petitioner No.2 was running a separate and distinct business of a cloth merchant styled as M/s Saree centre without the consent of the landlady. After appreciating the evidence led by the parties, the Rent Controller decided issue No.2 also against the landlady and in favour of the petitioners. No. arguments were addressed on issue No.1 before the Appellate Authority. The findings of the Rent Controller on issue No.2 have been reversed by the Appellate Authority. During the course of the proceedings before the Rent Controller, the respondent-landlady tendered in evidence affidavit. Ex.A-1 containing an admission that petitioner No.2 is the owner of M/s Saree centre, Main Baazar, Ferozepur and that he is paying a sum of Rs.200/- per month to his father as rent. At the time when the affidavit was tendered in evidence, the Rent Controller examined the authenticity of the same and came to the conclusion that there had been interpolations in the affidavit dated 21.2.1983. Consequently, the Rent Controller has held that the deed-writer, Tripatpal Singh has acted in connivance with Tajinder Singh, the husband of the respondent-landlady to defeat the claim of the petitioners. The Rent Controller held that Tajinder Singh and Tripatpal Singh are guilty of serious misconduct. Criminal proceedings under Section 340 Cr.P.C. were ordered to be initiated against both of them. Further a reference has been made to the Registrar-cum-Deputy Commissioner, Ferozepur for cancellation of the licence of Tripatpal Singh for deed-writing. The Appellate Authority has upheld the findings of the Rent Controller. In paragraph 6 of the judgment the Appellate Authority has held as follows;-
'6. The observations made by the learned Rent Controller as regards the documents Exs. A1, C1 and C2 have not been seriously challenged by Sh, N.K. Kakkar, learned counsel for the appellants. No fault can be found with the observations made by the Rent Controller regrading the proposed action to be taken against Tajinder Singh Tripat Pal Singh regarding interpolations made in the said documents.'
4. Thereafter the Appellate Authority in paragraph 8 of the judgment has further observed as follows:-
'8. The criticism levelled by Sh. Satish Kumar, learned counsel for respondents Madan Lal and Mohinder Kumar regarding the documents Exs.A1, C1 and C2, wherein interpolations are stated to have been made, will not negative the claim of Bhupinder Kaur in establishing her allegations that Madan Lal has sublet a part of the shop in question to his son Mohinder Kumar.'
5. These observations are assailed in Civil Revision No.2490 of 1986.
6. I have herd the learned counsel for the parties at length and perused the paper books.
7. Mr. Hemant Sarin has submitted that the findings recorded by the Appellate Authority on the issue of subletting are based on no evidence. No evidence has been produced by the respondents about the payment of rent by petitioner No.2 to petitionerNo. 1. It is further submitted that to establish the ground of subletting, it is necessary to prove that the tenant has surrendered exclusive possession of the demised premises to Mohinder Singh. It was also necessary to prove the consideration which has passed between petitioner No.1 and petitioner No.2 for subletting of the back portion of the demised shop. The Appellate Authority has totally ignored, according to the learned counsel, the oral evidence led by the parties. According to the learned counsel, the findings of fact recorded by the Appellate Authority are perverse and based on no evidence. The ground of subletting has not been established as there is no evidence of the two essential ingredients about the payment of rent by petitioner No.2 to petitioner No.1 and the surrender of exclusive possession of the back portion of the shop by petitioner No.1 to petitioner No.2. In support of his submission, the learned counsel has relied on the judgments rendered in Dipak Banerjee v. Lilabati Chakraborty, (1987)4 Supreme Court Cases 161, Shamsher Singh v. Sampuran Singh and Anr., (1998-3)120 P.L.R. 579, Jagan Nath v. Vasdev, (1993-1)104 Punjab Law Reporter 371.
8. Mr. Jain has vehemently argued that initially, the front portion of the shop was rented out in the year 1950 to petitioner No.1 for running the business known as 'Madan Di Hatti'. Subsequently by rent note dated 20.10.1997, back portion of the shop was also rented to petitioner No.1. In this rent note, Clause 9 provides that the tenant shall not have any right to sublet a part or whole of the demised premises to anyone (including any Associate Firm) either directly or indirectly. Learned counsel submitted that this clearly prohibits the subletting of the premises. It is submitted that the documentary evidence produced on record with regard to the litigation of petitioner No.2, A-10 to A-18 clearly proves that petitioner No.2 is running an independent business. Therefore, the plea of the tenant that exclusive possession of the back portion of the shop has not been given to the sub-tenant is clearly negatived. It is further submitted that the petitioners had put up a false plea in the written statement. They had totally denied the existence of the Saree Centre. Subsequently, while giving evidence, they had remained totally evasive and this fact is noticed by the trial Court. Inspite of the infirmities in the plea put forward by the petitioners, the trial court had wrongly held that there is no proof of subletting. According to the learned counsel, the Appellate Authority has correctly reversed the findings of the Rent Controller. When the plea of joint family business is negatived, inference of subletting has to be drawn. In support of the aforesaid proposition, the learned counsel has relied on the judgments rendered in Smt. Darshana Devi and Anr. v. Des Raj Singh Thakur, 1997 H.R.R. 363, (Para 5), Kaushalya Devi of Kurukshetra v. Devi Dayal and Anr., (1989-1)95 Punjab Law Reporter 506 (paras 4 and 6), Smt. Sheila Devi and others v. Gopal Krishan Sood, (1986-1)89 Punjab Law Reporter 362 (paras 6) and Smt. Sita Devi v. Chaman Lal and Anr., 1985(1) R.L.R. 49.
9. I have considered the submissions made by the learned counsel for the parties. A perusal of the judgment of the Appellate Authority shows that it is not based on due appreciation of the evidence led by the parties. The documentary evidence which has been produced on record, would not necessarily lead to the conclusion that Mohinder Kumar was running an independent business in the back portion of the shop.
10. The evidence of AW6, the Manager of the State Bank of Patiala and D.N. Sajan, Advocate AW7 also would not lead to the conclusion that Mohinder Kumar is running an independent business in the back portion of the premises. The trial Court meticulously examined the entire evidence and came to the conclusion that the business of Saree Centre was firstly being run by Vijay Kumar. He had earlier obtained a loan facility from the United Commercial Bank. The guarantor was Tajinder Singh, husband of the land-lady. The loan was taken on 3.9.1977. Therefore, it could not be held that the business of Saree Centre was not being run in the demised premises prior to the execution of the second rent note dated 12.10.1977. The Rent Controller, therefore, came to the conclusion that it is much more probable that Madan Lal had all along been carryingon his Cloth business in the demised premises as Proprietor of firm M/s Madan Lal Mo-hinder Kumar and the Saree Centre was being run under the proprietorship of his son, Vijay Kumar. This secret arrangement had been made only to obtain financial assistance from the local bank. When the back portion of the shop was added to the tenancy of Madan Lal on 12.10.1977, the business of the tenant expanded. It was for this reason perhaps that the sale of Sarees was confined exclusively to the back portion. The door intervening the front and the back portion remained in existence with a slight modification by fitting glass panel. The Rent Controller also found it probable that after the expansion of business to the rear portion of the shop, the tenant Madan Lal resorted to a change of tactics and refloated the Saree Centre under the proprietorship of his other son Mohinder Kumar. This may have been done to get further financial help from a different bank. Referring to the evidence of G.C.Garg, Manager, State Bank of Patiala, the Rent Controller noticed that the cash credit limit given to Madan Di Hatti was only Rs.18000/- while for the Saree Centre, it was Rs.75000/-. Even this arrangement did not succeed as is evident from the further litigation between Mohinder Kumar as Proprietor of Saree Centre and the Bank. Taking into consideration the entire facts and circumstances, the Rent Controller came to the conclusion that there was not sufficient evidence to establish an actual and distinct business by the sons separate from their father. It was in this context, that the Rent Controller had evaluated the evidence of Gian Chand Garg, AW6 and D.N. Sajan, Advocate, AW7. The Rent Controller observed that these gentlemen had merely seen the business of the so-called Saree Centre being conducted in the rear portion of the shop by Mohinder Kumar, but they had no knowledge about the arrangement which may have existed between the father and the sons. The Rent Controller came to the conclusion that the evidence of these two witnesses is not sufficient to prove subletting. However, it deserves to be noticed that both these witnesses have stated that the main entrance to the shop is closed by pulling down the shutter on the main bazaar. Therefore, it would not be possible to hold that petitioner No.1 has given exclusive possession of the back portion of the premises to petitioner No.2. In the present case, the land-lady claims that petitioner No.2 is in exclusive possession of the back portion of the shop as the shop has been partitioned and the access to the rear portion is through a door. This plea of the land-lady has to fail as the tenant still maintains the right of entry from the Main Bazaar. In order for petitioner No. 2 to open his part of the shop, it would be necessary for petitioner No.1 to open the main shutter. Therefore, it would not be possible to hold that petitioner No.1 has handed over the exclusive possession of the demised premises to petitioner No.2.
12. In Dipak Banerjee's case (supra), the Supreme Court has held that in order to prove tenancy or sub-tenancy, the first ingredient that has to be established is that the alleged sub-tenant is in exclusive possession of the part of the premises and tenant retains no control over that portion of the premises. In Shamsher Singh's case (supra), this Court was considering a similar situation. It was alleged that respondent No.1 who was the tenant, had sublet the demised premises to respondent No.2, his son. This Court noticed the facts and observed as follows:-
'12. As one scans through some of these precedents, it is obvious that there cannot be any hard and fast rule that the moment a third person is found in possession, inferences of subletting should be drawn. It cannot even be held that when a close relative is in occupation and doing ousmess, it cannot be subletting of the premises. It has to vary and weighed in facts of each particular case.
13. In the present case in hand, most of the facts found are not subject matter of much controversy. The property in question was let out to one Sampuran Singh tenant by the petitioner. Sampuran Singh had executed a rent note. He started business under the name and style of M/s Sampuran Timber and Steel Works. He filed an application in Form-F under the Shop and Establishment Act showing himself as the proprietor of the business. It was established that Sampuran Singh was doing the business ofmanufacturing of wooden and steel goods. He had obtained an electric connection. Later on, he filed an application for increase in the load from 1 Horse Power to 2 Horse Power. It was sanctioned. Respondent No.2, Gurdip Singh is residing with respondent No.1. The business is being done which was not the original business conducted by respondent No.1. This business is that of respondent No.2. However, respondent No.1 also conducts his business from the said property. Respondent No.2 was challenged from the address of the suit premises.
14. Can on these facts it be said that property has been sublet by respondent No.2. One finds no hesitation in concluding that findings of the Appellate Authority which are of facts, should be approved. There is nothing to indicate that respondent No.2 is in occupation for consideration. He has not set up his independent title in the property. If he has any permissive occupation with respondent No. 1, it is not a possession to the ouster of respondent No. 1. They are close relatives and, therefore, in the particular facts it cannot be inferred that there is subletting of the property. The revision petition, therefore, must be termed to be without merit. For these reasons, the revision petition being without merit must fail and is dismissed.'
13. Applying the aforesaid test, I am of the considered opinion that the Appellate Authority erred in coming to the conclusion that subletting has been proved. In Jagan Nath's case (supra), again it has been reiterated that before succeeding on the ground of subletting, it is necessary to prove the delivery of exclusive possession to the sub-tenant. The subletting must be for consideration. In the case of Dipak Banerjee (supra) the Supreme Court has held that in order to prove tenancy or sub-tenancy, the first ingredient that has to be established is that the alleged sub-tenant is in exclusive possession of the part of the premises and the tenant retains no control over that part of the premises. As noticed earlier, in the present case, the main entrance to the demised premises is in the control of petitioner No.1. If on any occasion, petitioner No.1 wishes to keep the front portion of the shop closed, petitioner No. 1 would not be able to gain access to the back portion of the shop.
14. The judgments relied upon by Mr. Jain would not be applicable in the facts and circumstances of the present case. In Smt. Darshana Devi 's case (supra), it has been observed as follows:-
'5. ...Sub-letting is generally a secret arrangement between the tenant and sub-tenant and that is why onus is always on the tenant to show the capacity in which alleged sub-tenant is in occupation of the premises. If the landlord proves parting with exclusive possession by the tenant in favour of any other person, it would be for the tenant to prove that the possession of another person is permissive and without consideration. In the present case, as noticed above, tenant is a teacher in the Government School and sub-tenant is carrying business in the premises to the exclusion of tenant. It is difficult to believe that the tenant would have parted with possession without any consideration. In any case, tenant has failed to bring cogent evidence on record that possession of Harish Chander is permissive or without any consideration. Consequently, finding of the authorities below in regard to sub-letting calls for no inference.'
15. A perusal of the above would show that the tenant surrendered the entire possession of the demised premises to the sub-tenant. In the present case, petitioner No.1 has not handed over the exclusive possession of the demised premises to petitioner No.2. In the case of Kaushalya Devi, (supra), this Court was considering a situation where, it was amply proved that the tenant was carrying on a separate business from his son. This Court had come to the conclusion that the tenant was not in occupation of the demised premises. In these circumstances, this Court observed as follows:-
'6...... Though the stand taken by the tenant was that in the rear of the shop, indispute, his goods were lying and thus, he was in occupation of the demised premises, yet there is no cogent evidence to that effect on the record, nor any such report hasbeen made by the local commissioner. From the evidence, it is quite evident that the tenant Devi Dayal was not in occupation of the demised premises........ Since thetenant Devi Dayal is running his own shop separately and is no more in occupation of the shop, in dispute, where the business is being carried on by Chander Bhan, exclusively, it is a clear case of subletting by the tenant....'
16. These observations are of no assistance to the respondents. In the present case, the exclusive possession of the shop remains with petitioner No. 1 as he controls the ingress and egress to the back portion of the demised premises occupied by petitioner No.2. There is no independent entry to the back portion of the shop. He can only enter through the front portion, which can be locked by petitioner No.1, by pulling down the shutter on the main bazaar. In Kaushalya Devi's case (supra), it was observed that Devi Dayal was running his own shop separately and was no more in occupation of the shop in dispute. His son Chander Bhan carried on the business in the demised premises. It was a clear case of subletting.
17. Similarly, in Smt. Sheila Devi's case (supra), this Court dealt with situation where the father who was a tenant, had sublet the premises to the son. It was admitted that the father was carrying on dairy business in another shop. Therefore, exclusive possession had been handed over by the tenant to the sub-tenant. Again in the case of Sita Devi (supra), it has been held that landlord had proved that the shop in dispute is exclusively occupied by Meghraj and the tenant is running his business at another shop. Therefore, it was held as follows:-
'4. ....Once it is established that Megh Raj is in exclusive possession of the shop in dispute, the presumption would arise that he is occupying the shop as sub-tenant unless it is proved otherwise by the tenant. The plea raised by the tenant that he is jointly carrying on the business with Megh Raj having been negatived the only probable inference that can be arrived at would be that the demised premises has been sublet and the tenant has transferred his rights under the lease to Megh Raj. The finding of the authorities below on the issue of subletting is accordingly reversed....'
18. In the present case, petitioner No.1 has not handed over exclusive possession to petitioner No.2. At best, it can be said that petitioner No.1 and petitioner No.2 are running their respective business from the same premises. This at best would amount to permissive user of the premises by petitioner No.2.
19. Arguing for the petitioner in C.R. No.2490 of 1986, Mr. Chopra has submitted that the Rent Controller has wrongly given a finding of misconduct against the deed-writer Tripat Pal Singh. It has also been submitted that the aforesaid finding could not have been given without issuing a show-cause notice to the petitioner. The petitioner had appeared in the witness-box in good faith. Furthermore, the Appellate Authority has wrongly held that the findings of the Rent Controller have not been seriously challenged. I do not find any substance in the submissions made by Mr. Chopra. The Rent Controller has elaborately discussed the affidavit, Ex.A-1 which had been produced as a trump-card on behalf of petitioner-landlady. In this affidavit, petitioner No.2 specifically admitted the sub-tenancy and the payment of monthly rent of Rs.200/- to his father. This affidavit is available on the record before this Court also. The relevant extract of the register scribe was also produced. The execution of both the documents were admitted by petitioner No.2. He had, however, alleged serious interpolations in the affidavit as well as the register of the scribe. The affidavit is executed by petitioner No.2 in evidence of the loan of Rs.15,000/- advanced by Tajinder Singh, husband of the land-lady. It mentions that the pro-note had been duly executed. The amount of loan has been received. The loan was for a period of 21 months. It is further stated that if the loan amount is not returned within the stipulated period together with interest, Tajinder Singh can recover the same by filing a civil suit. Thereafter, it is again repeated that the amount of Rs.15,000/- has been received in the presence of witnesses. The pro-note has been written by the document writer. Thereafter comes the recital which has nothing todo with the subject matter of the loan. The English Translation of the same is as follows:-
'I, the deponent, hereby state that I am the Proprietor of Saree Centre, Main Bazar, Ferozepur City and pay Rs.200/- per month as rent to my father'.
20. This recital has been clearly interpolated in the affidavit. Both the pro-note and the affidavit are executed on 21.2.1983. The Rent Controller has taken notice of all the interpolations contained in the affidavit dated 21.2.1983. Thereafter, the extract of the register at entries No. 108 and 109 have been examined. This Court has also had the occasion to see the relevant entries. There is definite renumbering of entries No.109, 110, 111 and 112 executed on 21.10.ft83. The recital which has been quoted above, has been inserted at entry No. 109 which pertains to the loan transaction for Rs. 15,000/-mentioned above. The recital has been squeezed in at the bottom of the page in a different ink. On the basis of the blatant interpolations, the Rent Controller has directed that proceedings be initiated against Tripat Pal Singh under Section 340 Cr.P.C. These findings of fact were not even assailed before the Appellate Authority. I am of the considered opinion that the findings recorded by the courts below do not call for any interference.
21. In view of the observations made above, C.R. No.1933 of 1986 is allowed. Thejudgment recorded by the Appellate Authority dated 2.6.1986 is hereby set aside and thejudgment passed by the Rent Controller, Ferozepur dated 31.1.1985 is restored, C.R.No.2490 of 1986 is hereby dismissed. No costs.