When eviction is sought on the ground of sub-letting, the onus to prove sub-letting is on the landlord

In Prem Prakash Vs. Santosh Kumar Jain & Sons (HUF) and Ors., the appeal before the Supreme Court was against the final judgment passed by the High Court of Delhi whereby learned Single Judge of the High Court allowed the eviction petition filed by the Original Owner-Respondent No. 1 while setting aside the judgments passed by the Court of Additional Rent Controller, and the Rent Control Tribunal, Delhi, respectively. The only point for consideration before this Court was whether in the present facts and circumstances of case, the order of eviction passed by the High Court was just and proper. 

The initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant. 

In Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh, it was held that, when eviction is sought on the ground of sub-letting, the onus to prove sub-letting is on the landlord. If the landlord prima-facie shows that, the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. Again, in Kala and Anr. v. Madho Parshad Vaidya, this Court reiterated the very same principle. It was observed that, the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration. Further, in Vaishakhi Ram and Ors. v. Sanjeev Kumar Bhatiani, it was held that, it is well settled that the burden of proving sub-letting 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 sub-letting. 

Sub-tenancy or sub-letting comes into existence, when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about under a mutual agreement or understanding between tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that, the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. 

It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since, payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case. 

In the present facts and circumstances of the case, Supreme Court opined that, the original owner-Respondent No. 1 has proved beyond doubt that, the property is in exclusive possession of the sub-tenant and the Appellant has not been able to deny the claim of sub-tenancy in favour of Respondent No. 2. The absence of evidence and failure to discharge the onus lay heavy on Appellant and there could be no presumption other than that the suit premises had been sublet and parted with possession by the Appellant to the Respondent No. 2. High Court was right in setting aside the orders passed by the lower Courts.