- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS is tenant's writ petition arising out of SCC Suit No. 121 of 1996 filed by landlord respondents No. 1 to 3 against the petitioner and proforma respondent Nos. 4 and 5 for eviction and recovery of arrears of rent. Eviction was sought on the ground of default and sub-letting. The suit was filed against Mohd. Yusuf Khan and Mohd. Ishaq Khan. Mohd. Yusuf Khan died during pendency of suit and was survived by Smt. Raeesa Begum proforma respondent No. 4 his widow and Smt. Farzana Begum proforma respondent No. 5 his daughter. Mohd. Yusuf Khan and Mohd. Ishaq Khan were real brothers. Proforma respondent No. 4 and 5 engaged Counsel in this writ petition and filed counter-affidavit supporting fully the case of the petitioner. The suit was decreed on 20-5-2006 by JSCC Moradabad. Against the said judgment and decree petitioner Mohd. Ishaq Khan and proforma respondent Nos. 4 and 5 filed SCC Revision No. 29 of 2006. A. D. J. Court No. 9 Moradabad, dismissed the revision on 25-9-2006, hence this writ petition. In respect of default trial Court held that even though on the first date of hearing entire rent etc. had been deposited by the tenant in accordance with Section 20 (4) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 however as sub-letting was proved hence benefit of the said Section could not be given to the tenants. In spite of this finding the correct legal position is that if the entire deposit is made on the first date of hearing then tenant will not be liable to eviction on the ground of default however if under any other clause of Section 20 (2) of the Act tenant is liable to eviction then eviction decree will have to be passed. The landlord had also taken the plea that damage to the building had been caused and it was being used for inconsistent purpose. However the said pleas were not found to be proved and the issues in respect of the said pleas were decided in favour of the tenant. Revisional Court affirmed all the findings of the trial Court. Accordingly the only point to be decided in this writ petition is regarding sub-tenancy.
(3.) THE property in dispute is residential in nature. THE plaintiffs purchased the property in dispute on 3- 1-1992 and 7-1-1992. THE tenancy was continuing since before its purchase by the plaintiff. According to the plaint allegations late Mohd. Yusuf Khan was the tenant of the property in dispute @ Rs. 48. 50 per month, however, he allowed his brother i. e. the petitioner also to reside with him hence it amounted to sub-letting. Both the Courts below have held that as brother is not included in the definition of family member given under Section 3 (g) of the Act hence in case tenant permits his brother to reside with him then it amount to sub-letting in terms of Section 20 (2) (e) read with Sections 25, 12 (1) (b) and Section 12 (2) of the Act. 12 (2) deals with non-residential building hence it is not relevant as admittedly building in dispute was let out for residential purpose and was being primarily used for residential purpose. Section 12 (1) (b) states that tenant shall be deemed to have ceased to occupy the building or part thereof if he has allowed it to be occupied by any person who is not a member of his family. If this clause is attracted then by virtue of Section 25 it amounts to sub-letting. For attracting the said provision it is necessary that the tenant must have exclusively parted with possession. Interpreting the said provision Supreme Court in Ganesh Trivedi v. Sunder Devi, AIR 2002 SC 676, has held that if brother of a tenant starts residing with him in the tenanted accommodation then it does not amount to sub-letting. Subletting takes place only if the tenant completely withdraws his possession from the tenanted accommodation and it is in exclusive possession of the brother of the tenant. In the instant case even according to plaint allegations the original tenant Mohd. Yusuf Khan allowed his brother i. e. Petitioner to reside with him. Accordingly in view of the aforesaid Supreme Court authority it did not amount to sub-letting. After the death of original tenant Mohd. Yusuf Khan his wife and daughter alongwith petitioner are in possession. Petitioner is brother-in-law of wife of Mohd. Yusuf Khan and uncle of daughter of Mohd. Yusuf Khan hence he can very well reside with them. Accordingly the findings of the Courts below holding that sub-letting was proved are set-aside.;