N.K. Kapoor, J.
1. The Petitioners have filed this revision petition against the order of the appellate authority whereby the appeal filed by them against the order of Rent Controller dated 21.3.1989 ordering eviction has been dismissed.
2. Briefly stated, Raj Kumar and another-respondents sought eviction of the present petitioner from the disputed premises on the ground : (i) respondent No. 1 has not paid the arrears of rent from 1.12.1982 ; (ii) respondent No. 2 without the consent of the petitioner has sublet the disputed shop to the respondent No. 2 for a valuable consideration. It was further stated that the shop is now in exclusive possession and control of respondent No. 2 who is doing his business of selling vegetables.
3. Notice of the petition was given to the respondents who put in appearance, filed written statement and controverted various averments made in the petition. It was admitted that respondent No. 1 is a tenant under the petitioners The arrears of rent were tendered and accepted by the petitioners and so this ground of eviction was given up. Respondents specifically denied that respondent No. 1 has sublet the shop in dispute to respondent No. 2, his brother. On the contrary, it was asserted that respondent No. 1 is in exclusive control and possession of the disputed shop and they are doing the joint business in the disputed property.
4. On the pleadings of the parties, the following issues were framed :
(1) Whether the respondent is liable to be ejected on the grounds mentioned in petition OPA.
(2) Relief.
5. The Rent Controller after exhaustively dealing with each one of the witnesses examined by the petitioner as well as the respondents and the documentary evidence placed on record, came to the conclusion that respondent No. 2 who is now doing the business of selling vegetables in the shop in dispute. Rent Controller further reached to a conclusion that respondent No. 1 is running his own business at another place. Thus, in view of this conclusion that the original tenant has shifted to another place, the Rent Controller held that respondent No. 2 to be in exclusive possession of the shop in dispute which amounts to parting with legal possession of the suit property and so held that respondent No. 1 has sublet the shop to respondent No. 2. In view of the findings on issue No. 1, the Rent Controller passed an order of eviction vide order dated 21.3.1989.
6. Before the appellate authority, the learned counsel for the appellants once again assailed the finding of the Rent Controller on the ground that the court has erred in law in not properly perusing the documents placed on record and has further erred in mis-construing the statements of witnesses which consequently has resulted in passing of the impugned order. Challenging the finding of the Rent Controller in respect of issue No. 1, the counsel urged that though there is no dispute that Bishamber Dayal is in possession and occupation of the shop and he and his sons are running the business but all the same it cannot be lost sight of the fact that Budh Ram is the real brother of Bishamber Dayal. In fact, both the brothers are doing joint business in the shop in dispute and this way the conclusion of the Rent Controller that Budh Ram has completely diverted himself from the possession and occupation of the shop is legally impermissible. The appellate authority, however, found no substance in this submission of the appellants firstly on the ground that this particular fact was not pleaded in the written statement. Otherwise too, there was no proof on record by which it could be inferred that both the brothers were carrying on the business of selling vegetables jointly. As regards the objection of the appellants that no consideration is alleged or proved and so the conclusion of the Rent Controller that a shop has been sublet to respondent No. 2 is legally unsustainable, the appellate authority observed that in view of the fact that tenant and subtenants are real brothers, factum of consideration can only be inferred from the surrounding circumstances, i.e. in this case, the exclusive possession of Bishamber Dayal, his separate business and the fact that Budh Ram is carrying on his own business at a different place. The appellate authority noted that Budh Ram is carrying on a hotel business under the name and style 'Gaur Pavitar Bhojnalya'. In addition to the above circumstances, the appellate authority further noticed that no document has been placed on record by which it could be inferred that Budh Ram or his sons have any connection with the shop. Accordingly the appellate authority found no merit in the appeal and dismissed the same vide order dated August?, 1991.
7. Learned counsel for the petitioners contends that it is for the landlord to prove beyond an element of doubt that tenant has sublet the premises, i.e. to say he has parted with the possession and that too for a valuable consideration. In the present case, landlord except retreating this legal requirement in para 4(b) of the application has not cared to give any other particulars. Even otherwise there is no evidence to the effect that Budh Ram parted with possession of the shop in favour of Bishamber Dayal for consideration.
8. The counsel next contended that both the authorities have erred in ignoring the rent receipts Ex. R-l to R 29 whereby it was proved that during all these years, rent was being paid by Bishamber Dayal. Since the rent was being paid by Bishamber Dayal, the authodties below ought to have held that the so-called alleged sub-tenancy was created with the consent of the land owner. The counsel in support of his contention relied upon two un-reported judgments of this court-Civil Revision No. 63 of 1961 Charanji lal v. Smt.-Bhagwanti, C.R. No. 63 of 1961 decided on July 11, 1961 (ii) Civil Revision No. 386 of 1963 Durga Dass v. Shrimati Santo, C. R. No. 386 of 1963 decided on December 13, 1963; and
(iii) judgment reported as 1980 (2) R. C. R. 320, 1980 (2) R. C. R. 320.
9. The counsel for the respondents in support of the order of eviction has urged that the Rent Controller as well as the appellate authority after perusal of the relevant evidence on record has returned a finding in favour of the respondents. The conclusion of both the authorities cannot be either termed as illegal or preverse This being a finding of fact is final and the revisional court normally would be most reluctant to interfere in the concurrent findings which otherwise do not suffer from any infirmity. Elaborating the same, the counsel submitted that it is proved on record that Bishamber Dayal and his sons are in exclusive possession of the shop in dispute whereas Budh Ram is running his separate business in a different shop Both the authorities have found as a fact that there is no partnership between the two brothers. It has not been found that business of selling vegetables in the shop in dispute is joint Hindu Family business. Except for verbal assertion made by one of the petitioners there is not an iota of evidence on record by which even it could be inferred remotely that there has been any participation in the business of selling vegetables by Budh Ram or any of his sons (Budh Ram since died during the pendency of the application). Even the licence issued by the Municipal Committee is in the name of Bishamber Dayal. With this unimpeachable evidence on record, the counsel submitted that parting of possession by Budh Ram is proved As regards the element of consideration, the same is to be inferred on the sole ground that the possession is now with Bishamber Dayal. The counsel in support of his contention cited Smt. Rajbir Kaur v. M/s. S. Chokosiri & Company, A. I. R. 1988 S. C. 1845. The court observed as follows :--
'If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind in the circumstances of the case, we think, that appellants having been forced by the courts below to have established exclusive possession of the ice-cream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into the monetary considerations. There is no explanation forth coming from the respondent appropriate to the situation as found.'
With regard to the receipts Exts. R-l to R-29 he submitted that even in these receipts, the payment is alleged to have been received from Budh Ram though through the agency of Bishamber Dayal. Not even one receipt is in the name of Bishamber Dayal. Counsel even doubted the authenticity of these receipts for' the reason that the written statement filed by the petitioners does not make any reference to these receipts. Not only this the landlord when appeared as a witness was not confronted with these documents either. Even the alleged writer of the receipts (admittedly receipts have not been signed or drawn by the landlord) has not been produced as a witness. Thus, in nutshell, the counsel submitted that in view of the concurrent findings of the courts below that Budh Ram sublet the premises to Bishamber Dayal, order of eviction passed by the courts below is perfectly legal and just and revision-petition is liable to be dismissed.
10. I have heard the learned counsel for the parties and perused the material evidence referred to by both the counsels. Eviction in this case is sought on the ground of subletting and the averment made to this effect is contained in para 4 (b) of the application which when translated reads as under :--
'That respondent No. 1 has sublet the shop in dispute to respondent No. 2 without the consent of the applicants to respondent No. 2 for valuable consideration.'
The shop in dispute is in exclusive possession and control of respondent No. 2. Respondent No. 1 is running his business in his own shop situated at Railway Road Rewari whereas shop in dispute has been sublet to respondent No. 2 who is carrying on the business of selling vegetables.
11. The first objection of the counsel for the petitioners is that there is no evidence on record by which it could be inferred that the shop in dispute has been sublet for a valuable consideration. This matter has been considered by the apex Court in the case of Smt. Rajbir Kaur v. M/s S. Chokosiri and Company, A. I. R. 1988 S. C. 1845. It has been held that once it is proved that tenant has parted with exclusive possession, it would be just to infer keeping in view the ordinary course of human conduct that such transaction was entered into for monetary consider- action. This is particulary so when parties are near relations and thus for obvious reasons, no direct evidence can possibly be adduced by the land lord who is a total stranger.
12. I am accordingly of the view that in view of the concurrent findings of the courts below that Bishamber Dayal is in exclusive possession of the shop in dispute and the same without any written consent of the land owner, his status is that of a subtenant. Section 13(2) (ii) of the Act reads as under :-
'That the tenant has after the commencement of the landlord :-
(a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof............'
This provision expressly states that in case there is a transfer of possession without the written consent of the landlord, it would amount to subletting of the premises. Since the Act envisages written consent it will be presumed that any other kind of consent, i.e., merely by words of mouth, acquiescence or conduct was necessarily to be excluded. This also meets objection of the counsel for the petitioner that landlord in fact by conduct, as is clear from the receipts Exs. R-1 to R- 9, accepted Bishamber Dayal to be his tenant. To be fair to the counsel, the unreported judgment relied upon, i.e., Civil Revision No. 386 of 1963 and civil revision No. 63 of 1961 have no applicability on the facts of the present case, in Durga Dass's case, the court came to the conclusion on the basis of reliable evidence that the landlord had issued written receipts in favour of one Jaswant Rai and so he was held to be a tenant. The relevant words read as under :-
'The eonsent to the subletting in the case of Jaswant Rai was established beyond all doubt by receipts written by the landlord relating to the period before 1954 showing that the rent was being paid by the tenant on behalf of Jaswant Rai, and in a fresh rent note executed in 1954 there was an express provision that there would be no further subletting without the consent of the landlord.'
Similarly, in Chiranji Lal and another, the court held 'there is no specified phraseology prescribed for the consent in writing of the landlord. His consent may be derived from any writing provided it is unique vocal.' No such inference is discernible on the basis of documents and oral evidence adduced by the parties. This way, both these judgments do not advance the case of the petitioners in any manner.
13. The last submission of the counsel that there is no clear evidence on record that there has been parting with of possession in favour of Bishamber Dayal to the exclusion of Budh Ram also no merit. Bath the authorities on appraisal of the relevant meterial on record have come to the conclusion that there has been a parting of possession in favour of Bishamber Dayal who in fact is carrying on the business of selling vegetables in the shop in dispute to the exclusion of his brother now deceased Budh Ram.
14. Finding of fact recorded by the courts below are supportable by the evidence on record. As held by the apex Court, the revisional court should most reluctantly embark upon any independent re-assessment of the evidence and supplant its own conclusions. In any case, even on re appreciation of the evidence though not strictly permissible, be illegality is discernible.
15. In view of what has been stated above, I find no merit in this revision petition and dismiss the same. However, the petitioners are granted another three months time to deliver back the vacant possession of the shop to the respondents in case they deposit all the arrears of rent including the rent for the next three months within one month from the passing of the order. The parties, however, to bear their own costs.