1988 (8) TMI 413 - SC - Indian Laws

Supreme Court restores eviction order in Kwality Ice Cream case, emphasizing exclusive possession and monetary transactions

RAJBIR KAUR & ANR Versus S. CHOKESIRI & CO.

The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the eviction order passed by the lower courts. The Court held ... Unauthorised sub-letting - eviction orders - Held that:- The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive possession was prompted by monetary consideration could be drawn or not. The High Court, did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. lf exclusive possession established, and the version of the respondent as to the particular 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 in mind. In the circumstances of the case, we think, that appellants having been forced by the Court's-below to have established 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 for monetary considerations. There is no explanation forth-coming from the respondent appropriate to the situation as found. This Appeal is allowed, the order of the High Court under Appeal is set aside and the order of eviction passed by the Courts-below restored. Having regard to all the circumstances of the case, we grant time to the respondent to vacate and yield up the vacant possession till 31st December,1988. Issues Involved:1. Unauthorized Sub-letting2. Unauthorized Structural Alterations3. Revisional Jurisdiction and Reappreciation of Evidence4. Exclusive Possession and Sub-letting5. Monetary Consideration for Sub-lettingDetailed Analysis:1. Unauthorized Sub-letting:The principal ground for eviction was unauthorized sub-letting by the respondent tenant. The appellants alleged that the respondent had inducted two sub-tenants, Banwari Lal (Royal Star Tailors) and Agia Ram Lamba (M/s. Kwality Ice Cream), without their consent. The respondent denied sub-letting, asserting that the premises were used exclusively for their business and that the presence of the tailor and ice-cream vendor was ancillary to their business.2. Unauthorized Structural Alterations:Although unauthorized structural alterations were initially a ground for eviction, this point did not survive due to the limited scope of the proceedings before the High Court.3. Revisional Jurisdiction and Reappreciation of Evidence:The High Court, exercising its revisional jurisdiction, reappreciated the evidence and set aside the concurrent findings of the lower courts regarding exclusive possession by the alleged sub-tenants. The High Court relied on documents (Mark A and Mark B) indicating that the possession of the demised premises remained with the respondent and that no rent was payable by third parties, suggesting a license rather than sub-letting.4. Exclusive Possession and Sub-letting:The trial court and appellate court found that M/s. Kwality Ice Cream had exclusive possession of a portion of the premises, supporting the appellants' claim of sub-letting. The High Court, however, concluded that the evidence did not establish exclusive possession, relying on structural plans (Exhibit R.4) and questioning the credibility of the Court-Commissioner's report.5. Monetary Consideration for Sub-letting:The High Court did not specifically address whether monetary consideration was involved in the alleged sub-letting. The appellants argued that the sub-letting was for monetary consideration, inferred from the exclusive possession and the nature of the transactions. The respondent's explanation was found unsatisfactory by the lower courts, leading to the inference of monetary consideration.Conclusion:The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the eviction order passed by the lower courts. The Court held that the High Court erred in reappreciating the evidence and substituting its findings for the concurrent findings of the lower courts. The evidence supported the conclusion that M/s. Kwality Ice Cream had exclusive possession and that the transactions were likely for monetary consideration, justifying the eviction order. The respondent was granted time to vacate the premises until December 31, 1988.