Initial Burden Of Proving An Unlawful Sub-Letting Lies On Landlord: Bombay HC

The Bombay High Court observed that initial burden of proving an unlawful sub-letting lies on the landlord. 

The court said that it only after a landlord proves that a third party is occupying the premises and the tenant himself is not in the premises, the burden of proof shifts upon the tenant to explain the nature of the third party's presence.

The Landlord had filed an eviction application against his tenants on the grounds that they had illegally sublet the premises. The Appellate Court had affirmed the eviction orders passed by the Trial Court.

The Court noted that the landlord failed to establish that the tenants had sublet the shop to their brothers. The Bench noted that the tenants had not parted with possession of the shop and retained control over the business.

The Bench of SG Mehare observed, “The initial burden of proving an unlawful sub-letting lies on the landlord. Once the landlord shows that a third person is in occupation and the tenant himself is not in the premises, the burden of proving the nature of the occupation of the third person shifts on the tenant”.

Advocate Hrishikesh A. Joshi appeared for the Applicants and Advocate Namit Sunil Muthiyan appeared for the Respondent.

A landlord (Respondent) filed a suit for eviction under the Maharashtra Rent Control Act, 1999 (MRC Act) against the tenants and subtenants of a shop. The landlord claimed that the tenants (Applicants no 1 and 2) had sublet the shop to their brothers (Applicants nos 3 and 4) without his permission. The tenants argued that they had inherited the tenancy from their father and that their brothers were not subtenants but partners in the business.

The Trial Court had allowed eviction application through a judgment and decree. The Appellate Court also affirmed the judgment. Aggrieved, the tenants approached the High Court challenging the judgment.

The Court noted that the definition of "landlord" in the MRC Act is not limited to the property owner. A person who receives rent from a tenant for an extended period is also considered a landlord under the Act. In this case, the Respondent, who had been receiving rent from the tenant for seven to eight years, was recognized as a landlord and was entitled to file an eviction suit against the tenant.

Furthermore, the Court rejected the contentions of the tenants that the landlord could not file an eviction suit without joining all the legal heirs of the original landlord. The Court observed that since the Respondent was one of the legal heirs and the person receiving rent from the tenant, he was entitled to file the eviction suit.

The Bench noted, "The burden was on the tenants and subtenants to prove that they had inherited the tenancy after the death of their father. It was the burden on them to prove that the landlordtenant relationship was created between their father and the original landlord. However, no evidence has been placed on record to prima facie believe that their father was running the business in the suit shop".

Additionally, the Bench observed that the burden of proving an unlawful sub-letting lies on the landlord. Once the landlord shows that a third person is in occupation and the tenant himself is not on the premises, the burden of proving the nature of the occupation of the third person shifts onto the tenant. To prove the tenancy or the sub-tenancy, two ingredients had to be proved: (1) the tenant or sub-tenant must have an exclusive right of possession or interest in the premises or part of the premises in question, and (2) that right must be in lieu of some payment of rent or compensation.

"The Hon'ble Supreme Court in the case of Shri Dipak Banerjee V Smt Lilabati Chakroborty, AIR (1987) SC 2055, has held that in order to prove the tenancy or the sub-tenancy, two ingredients had to be proved,viz. (i) the tenant or sub-tenant must have exclusive right of possession or interest in the premises or part of the premises in question, and (ii) that right must be in lieu of some payment of rent or compensation", the Bench noted. 

The Court held that the landlord had failed to establish that the tenants had sublet the shop to their brothers. The Bench noted that the tenants had not parted with possession of the shop and retained control over the business. The Bench observed that the tenants' admissions that their brothers ran the business in the shop did not prove that the shop had been sublet.

Accordingly, the Court allowed the Revision Application and set aside the impugned judgments.

Cause Title: Shaikh Zaffar Abid v Ifteqar Ahmed (2023:BHC-AUG:25019)

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