Judgment:
ORDER
Thanikkachalam, J.
1. The tenants are the petitioners herein.
2. The petition for eviction was filed under Sections 10(2)(ii)(a)and 10(2)(iii)of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as 'the Act').
3. The petition premises is situated at No. 31, Nainappan Street, Mannadi, Madras-1. The petitioners herein are the tenants in respect of the petition premises on the monthly rent of Rs. 1,000 payable according to English calendar month. According to the landlord, the tenants sublet the petition premises to the respondents 6 to 8 without the written consent of the landlord. Further, according to the landlord, the tenants without the permission of theiandlord put up a construction in the open space on the first floor. Therefore, according to the landlord, the value and utility of the building are materially impaired. Hence, the petition was filed under Sections 10(2)(a)(ii) and 10(2)(iii)of the Act.
4. The tenants filed the counter stating that there is no subletting to the respondents 6 to 8 as alleged by the landlord. According to the tenants, the rent is Rs. 500 per mensem for both residential and non-residential portions. Even though the landlord agreed to give the entire portion, but he did not do so. Hence, the tenants initiated proceedings against the landlord and the same is now pending. According to the tenants, the landlord permitted the tenants to put up the superstructure on the first floor and -also agreed to pay the expenses incurred by the tenants for such construction. Since the landlord refused to pay the expenses incurred by the tenants, the tenants filed a suit and the same is now pending. Hence, as a counter blast the landlord filed the present falsely alleging that the tenants sublet the petition premises to the respondents 6 to 8 without the written consent of the landlord. According to the tenants, no portion was sublet to the respondents 6 to 8 as alleged by the landlord. Hence, the petition is liable to be dismissed.
5. On considering the evidence both oral and documentary, the Rent Controller came to the conclusion that the tenants sublet a portion of the petition premises to the 6th respondent. Hence as this ground evicting was ordered. Insofar as the acts of waste is concerned, the Rent Controller held that the landlord failed to establish that the tenants committed acts of waste. Accordingly, the petition for eviction filed on the ground of acts of waste was dismissed.
6. On appeal the Rent Control Appellate Authority confirmed the order of eviction passed by the Rent Controller on the ground of subletting. So also, the Rent Control Appellate Authority held that the landlord failed to establish that the tenants committed acts of waste. Accordingly, the order passed by the Rent Controller on this ground was also confirmed by the Rent Control Appellate Authority. It is against this order, the present revision has been preferred by the tenants. The first ground in this revision relates to eviction ordered on the ground of subletting. According to the tenants, there is no subletting as alleged by the landlord in the present case. Originally, the landlord alleged that a portion of the petition premises was sublet to the respondents 6 to 8. But, ultimately the landlord failed to establish that a portion of the petition premises was let out to the respondents 6 and 7. The authorities below without appreciating the facts arising on this aspect in proper perspective, held that the tenants sublet a portion of the petition premises to the 6th respondent only. There is no evidence on the side of the landlord to show that the 8th respondent was in possession of the petition premises. The tenants did not part with the legal possession of the rented premises in favour of the 6th respondent. The 8th respondent in the sale deed executed in her favour mentioned her address as that of the petition premises. The unilateral act on the part of the 8th respondent would not go to show that the 8th respondent is a sub-tenant under the petitioners herein. There is no evidence on record to show that the 8th respondent was paying the rent to the petitioners herein. The 8th respondent is residing in Burma. Whenever the 8th respondent came to Madras, the 8th respondent used to stay in the petition premises, since the 8th respondent happened to be the friend of the petitioners herein. That would not go to show that the petitioners herein sublet a portion of the petition premises to the 8th respondent. It was therefore pleaded that the authorities below were not correct in coming to the conclusion that the petitioners herein sub, let a portion of the petition premises in favour of the 8th respondent.
7. On the other hand, the learned Counsel for the landlord submitted that a portion of the petition premises was let out by the petitioners herein in favour of the 8th respondent. The 8th respondent in the sale deed, Ex. P-1 dated 29.1.1986 clearly stated that the 8th respondent is residing in the petition premises. In the counter filed by the petitioners herein, it is not stated that the 8th respondent is residing in Burma and whenever he comes to Madras, he used to stay in the house of the petitioners herein. This explanation was offered only at a later stage. The 8th respondent was not examined as a witness in the present case. Ex. P-1 would clearly go to show that the petitioners herein parted with the legal possession of a portion of the petition premises in favour of the 8th respondent. Both the courts below concurrently came to the conclusion that the petitioners herein sublet a portion of the petition premises in favour of the 8th respondent. Since the conclusion arrived at by the authorities below is concurrent, no interferen-cies called for.
8. I have heard the rival submissions. The fact remains that the petitioners herein are the tenants under the respondent herein in respect of the petition premises. According to the landlord, the petitioners herein sublet a portion of the petition premises in favour of the respondents 6 to 8. But both the authorities below concurrently came to the conclusion that the petitioners herein sublet a portion of the petition premises in favour of the 8th respondent only. In so far as the respondents 6 and 7 are concerned, the authorities below held that the landlord failed to establish that a portion of the petition premises was let out by the petitioners herein in favour of the respondents 6 and 7. But, according to the tenants, no portion of the petition premises was sublet in favour of the 8th respondent as alleged by the landlord. P.W. 1 in his evidence stated that his brother's son told him that the petition premises was sublet by the tenants in favour of the respondents 6, 7 and 8. The 8th respondent is P.K.P. Jainulabdeen. His wife is Ayeesha Mary. Ex. P-1 is the sale deed relating to the property at Door No. 95, Nainappan Street, George Town, Madras-1. The 8th respondent's wife purchased the aforesaid property under the saledeed Ex. P-1. The sale deed is dated 29.1.1986. In thesale deed, it is stated that the 8th respondent and his wife were residing in the petition premises. Therefore, according to the landlord, a portion of the petition premises was let out to the 8th respondent by the petitioners herein. According to the evidence' tendered by the tenants, the 8th respondent is their friend, who is residing in Burma and whenever the 8th respondent comes to Madras, he used to stay in the petition premises since he happens to be the friend of the petitioners herein. But, this was not stated in thecounter filed by the petitioners herein. The authorities below pointed out that since the 8th respondent is residing in a portion of the petition premises, he gave his address in the sale deed, as that of the petition premises. The authorities below also held that the landlord failed to establish that the petitioners herein sublet a portion of the petition premises in favour of the respondents 6 and 7. No further material was brought to the notice of this Court to very this finding. Apart from the second respondent, nobody else was examined on behalf of the petitioners herein.
9. The petition for eviction was filed on 19.1.1987 and the sale deed, Ex. P-1 was executed on 29.1.1986. Therefore, it remains to be seen that even before the filing of the petition for eviction, a portion of the petition premises was let out to the 8th respondent by the petitioners herein. The authorities below further pointed out that when a notice was sent to the 8th respondent, it was returned with an endorsement that the party left. From this, the authorities below came to the conclusion that the 8th respondent would have been in occupation of the petition premises prior to the purchase of a house under Ex. P-1 sale deed. The learned Counsel appearing for the petitioners herein pointed out that there is no evidence on the side of the landlord to show, that the petitioners herein received any rent from the 8th respondent. But, it remains to be seerf that in the matter of subletting it is hardly difficult to find out the payment of rent by the sub tenant in favour of the chief tenant. Since it is a hide and seek game, it would not be always possible to find out the payment of rent by the subtenant to the chief tenant.
In the matter of establishing a sub-tenancy under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, it is for the landlord to show that the tenant has parked with legal possession of the petition premises. In the present case, by producing Ex. P-1 sale deed, the landlord established that the petitioner herein parted with the legal possession of a portion of the petition premises in favour of the 8th respondent.
10. In the case of Subramanian v. Malar Selvi 99 L.W. 1064, while considering the question of subletting, this Court held as under:
The relationship between a tenant and the alleged subtenant is within the special knowledge of either the tenant or the sub-tenant. Unless therefore a tenant or sub-tenant satisfactorily explains the presence of the alleged sub-tenant in the premises, the court is entitled to draw the inference in a case where an utter stranger is found in the premises must have been sublet. Such an inference is clearly permissible in law.
11. In The Vellore Shrop Rumaraswami Chetti Choultry by the Executive Trustee v. KKannappa Chettiarv. Veerasami 85 L.W. 192, while considering the provisions of Section 10(2)(ii) of the Act, this Court has held as under:
It is true that it is difficult to get direct evidence about the sublease by tenant and it is fact which can be proved as much as by circumstantial evidence as by direct evidence.
12. In The Jamia Daras Salam Arabic College Trust by the Honorary Secretary, Kaka Haji Kd. Omar Sahib v. B.Rajanna 85 L.W. 478, while considering the provisions of Section 10(2)(ii)(a) of the Act, this Court held as under:
It will be seen that room No. 6 is only 16' x 8' and surely the first respondent would not have put himself to the inconvenience of limiting the space available for kis staff and clients by permitting the second respondent to occupy a portion of room No. 6, merely on account of friendship. I am certain that some rent must have been received from the second respondent by the first respondent, though materially it does not find a place in the accounts of either the first respondent or the second respondent. They are no doubt income-tax assessees. But it would have been suicidal to them if they had exhibited the payment of rent in the accounts, because that would have immediately created evidence of subletting and entailed their eviction straightaway. Not merely has the second respondent a separate phone and a board of his own, but according to the admission of the first respondent, the second respondent has also a key for room No. 6, though the second respondent would deny it. Incidentally, the denial by the second respondent would show as desire to supress an inconvenient fact. It is clear that even on the evidence on the side of t he respondents the second respondent has been occupying a portion of room No. 6 as a sub-tenant on payment of rent, and that occupation is without the permission of the landlord. Hence, the first respondent is liable to be evicted under Section 10(2)(ii) of the Act.
13. Thus, on a careful consideration of the facts arising in this case on this aspect, both the authorities below concurrently came to the conclusion that the petitioners herein sublet a portion of the petition premises in favour of the 8th respondent without the written consent of the landlord and thereby rendering themselves liable to be evicted under Section 10(2)(ii) of the Act. No fresh material was placed before this Court to dislodge this concurrent finding arrived at by the authorities below, in ordering eviction under Section 10(2)(ii) of the Act. Accordingly, I am not inclined to interfere with the order of eviction passed by the aulhorities below under Section 10(2)(ii) of the Act.
14. Next ground in this revision relates to acts of waste said to have been committed by the tenants. According to the landlord, the tenants put up a superstructure in the open space on the first floor without the consent of the landlord. But according to the tenants, the landlord consented for putting up such construction in the open space on the first floor. The tenants also state that the landlord has agreed to reimburse the expenses incurred by the tenants in putting up such construction. According to the tenants, they also filed a suit against the landlord for recovery of the amounts incurred by way of expenditure in putting up the structure and the suit is now pending. According to the tenants, they incurred an expenditure of Rs. 40,000 in the matter of putting up the alleged construction on the first floor. The landlord states that by putting up the construction, the value and utility of the petition premises are impaired. If that is so, it is for the landlord to establish the same. No evidence was adduced to establish this ground. No Engineer's report was filed and no Engineer was examined in order to show that the alleged construction put up by the tenants impaired the value and utility of the petition premises. In the absence of any evidence on the side of the landlord, the authorities below concurrently came to the conclusion that the landlord failed to establish the acts of waste alleged to have been committed by the tenants. Even before this Court, no fresh material was placed to vary the findings given by the authorities below on this aspect. Thus, in the absence of any evidence on the side of the landlord to show that the construction put up by the tenant impaired the value and utility of the building, the eviction sought for under Section 10(2)(iii) of the Act cannot be granted. Thus, on a careful consideration of (he facts arising on this aspect, I am of the opinion that the authorities below were correct in dismissing the petition filed on the ground of acts of waste under Section 10(2)(iii) of the Act.
15. In this view of the matter, the civil revision petition is dismissed. However, there will be no order as to costs. Time for eviction two months.