Neeta Sawant CRA-523 OF 2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO. 523 OF 2022

WITH

INTERIM APPLICATION NO. 19993 OF 2022

Divyesh Jaykant Sheth & Anr. ...Applicants

: VERSUS :

Smt. Sushila H. Bhatia (deleted since deseased)

Mrs. Veena Harkishin Bhatia ....Respondent

Mr. Mehul Shah with Ms. Vrushali Parab, for the Applicant.

Mr. Kunal Bhanage with Mr. Vasim Siddiqui I.b. Mr. Akshay Pawar, for the

Respondent.

CORAM : SANDEEP V. MARNE, J.

JUDGMENT RESD. ON: 8 April 2026.

JUDGMENT PRON. ON : 24 April 2026.

JUDGMENT:

1) The Applicants have invoked revisionary jurisdiction of this

Court under Section 115 of the Code of Civil Procedure, 1908 (the Code)

for challenging the judgment and order dated 3 October 2022 passed by

the Appellate Bench of the Small Causes Court partly allowing Appeal

No.59 of 2011 and setting aside the �ndings of the Trial Court on the

issue of unlawful sub-letting and decreeing the suit thereby directing the

Applicants/Defendants to handover possession of the suit premises to the

Plaintiff. The Trial Court had dismissed R.A.E. Suit No.1225 /3700 of 1985

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by rejecting the grounds of unlawful sub-letting and commission of acts

contrary to the provisions of the Transfer of Property Act, 1882 (the TP

Act). While partly allowing the appeal, the Appellate Court has reversed

the �nding of the Trial Court on the issue of unlawful sub-letting. The

Appellate Court has accordingly decreed the Suit by directing eviction of

the Defendant on the ground of unlawful sub-letting.

2) Plaintiff-Sushila Bhatia was the owner and landlord of Flat

No.7, Bozo Building, Kamla Nehru Cross Road No.1 Kandivali (W) Mumbai

400 067, which are the ‘suit premises’. Defendant No.1 -Jaykant Sheth

(Jaykant) was inducted as tenant in respect of the suit premises. His wife

is a tenant in respect of adjoining �at No.8. Defendant No.1 is the

brother-in-law of Defendant No.2-Padmakant Parikh (Padmakant).

Jaykant is married to the sister of Padmakant, who was single and

unmarried. Padmakant claimed that he exclusively occupied suit premises

being Flat No.7 and that adjoining Flat No.8 was in the possession of

Jaykant and his wife. The rent receipt in respect of Flat No. 7 is however

in the name of Defendant No.1-Jaykant.

3) Padmakant therefore �led R.A.D Suit No.2434 of 1985 in the

Court of Small Causes, against Jaykant and his wife Chandrakanta seeking

a declaration that he was the real tenant of the suit premises bearing Flat

No.7. The Suit was resisted by Jaykant and Chandrakanta by �ling written

statement. After learning that Padmakant was claiming right and

exclusive possession in respect of the suit premises bearing Flat No.7,

Plaintiff Sushila instituted R.A.E. Suit No.1225/3700 of 1985 in the Court \

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of Small Causes against Jaykant and Padmakant seeking their eviction

from the suit premises bearing Flat No.7. The Plaintiff alleged that

Jaykant had unlawfully sub-let the suit premises to Padmakant.

4) After Plaintiff-Sushila �led RA.E. Suit No.1225/3700 of 1985,

Padmakant’s R.A.D. Suit No.2434 of 1985 was withdrawn on 9 April 1986.

During pendency of R.A.E. Suit No.1225/3700 of 1985, Padmakant passed

away and it appears that his sister Chandrakanta and sister’s son-Divyesh

were brought on record as his legal heirs. The Suit took long time of 26

years three months and 17 days for decision. By judgment and order dated

5 May 2011, the Trial Court proceeded to dismiss the Suit by rejecting the

ground of unlawful sub-letting. The Trial Court also rejected the ground

of commission of act contrary to provisions of Section 108 (o) of the TP

Act. The Trial Court held that the Plaintiff could not prove that Defendant

No.2-Padmakant was in exclusive possession of the suit premises and

accordingly the ground of unlawful sub-letting was rejected. The Suit was

accordingly dismissed vide judgment and decree dated 5 May 2011.

Aggrieved by the Trial Court’s decree, Plaintiff preferred Appeal No.59 of

2011 before the Appellate Bench of the Small Causes Court. During

pendency of the Appeal, Defendant No.1-Jaykant also passed away and

his legal heirs were brought on record. By judgment and order dated 3

October 2022, the Appellate Court has proceeded to partly allow the

Appeal by accepting the ground of sub-letting. The Appellate Court has

accordingly reversed the �ndings of the Trial Court on the issue of

unlawful sub-letting and has decreed the Suit under Section 13(1)(e) of

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the Bombay Rents, Hotels and Lodging House Rates Control Act,1974

(Bombay Rent Act). The Defendants are directed to handover possession

of the suit premises to the Plaintiffs. Aggrieved by the Appellate Court’s

judgment and order dated 3 October 2022, the legal heirs of Defendant

No.1-Jaykant have �led the present Revision Application.

5) During pendency of the Revision Application, Plaintiff-

Sushila has passed away and accordingly her legal heirs are brought on

record. The Revision Application was heard by this Court for admission

on 25 November 2022 and by a detailed order, the Revision Application

has been admitted and execution of Appellate Court’s decree has been

stayed. Though the

Rule was issued on interim relief for determining

quantum of interim compensation, it appears that the int erim

compensation has not been �xed. The Respondents/ Plaintiff challenged

the order passed by this Court on 25 November 2022 before the Hon’ble

Supreme Court by �ling Special Leave Petition (c) Diary No.25387 of 2023.

By order dated 1 December 2023, the Supreme Court refused to interfere

with the interim order of stay, but requested this Court to �nally decide

the Revision Application at the earliest. Accordingly, the Revision

Application is taken up for �nal hearing.

6) Mr. Mehul Shah, the learned counsel appearing for the

Applicants submits that the Appellate Court has erred in reversing well

considered decision of the Trial Court. That the Appellate Court has

perversely held the ground of unlawful sub-letting to be proved. That the

case involves occupation of suit premises jointly by a family member, who

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was real brother of wife of the original tenant. He was not a stranger or

unrelated third party. That suit premises consists of one bedroom, hall

and kitchen, which was used for sleeping and storage purposes with

adjoining Flat No.8 consisting of one room and a kitchen. That the

kitchen in Flat No.8 was being used for servicing both the �ats. That

therefore there is no question of Padmakant exclusively possessing the

suit premises. That there was no arrangement for payment of rent charges

by Padmakant in respect of the suit premises, which is an essential

ingredient for proving the act of sub-letting. In support of his contention,

Mr. Shah relies on judgment of this Court in Surendra M. Wagh and

another Versus. Manohar Krishna Kale and another

1

and of the Apex

Court in Delhi Stationers and Printers Versus. Rajendra Kumar

2

,

7) Mr. Shah further submits that mere sharing of premises with

family members cannot be treated as an act of unlawful sub-letting. That

Padmakant always resided in the suit premises with the original tenant as

a family member. That mere differences among the family members

cannot be a reason for believing that Padmakant occupied the suit

premises exclusively in capacity as unlawful sub-tenant. He submits that

the Appellate Court has grossly erred in relying on proceedings of R.A.D.

Suit No. 2434 of 1985. Taking me through the plaint in that suit, Mr. Shah

submits that Padmakant never raised a plea of being a sub-tenant under

Defendant No.1. His misconceived case was that the tenancy was

erroneously created in favour of Defendant No.1, who was a mere

1 2006 (5) Mh.L.J. 70

2(1990) 2 SCC 331

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benamidar. That Defendant No.1 �led written statement in R.A.D. Suit

No. 2434 of 1985 speci�cally taking a position that Padmakant was only

permitted to reside in the suit premises because he was his wife’s brother

and a family member. That R.A.D. Suit No. 2434 of 1985 was subsequently

withdrawn by Padmakant after disputes between the family members got

settled. That after 1987, Padmakant never occupied the suit premises.

That in the present suit, Padmakant �led written statement denying the

allegation of sub-tenancy. Mr. Shah further submits that for proving the

act of sub-letting, it is necessary to establish the essential ingredient of

parting with legal possession, intention to create sub-tenancy and

payment of consideration. That none of the ingredients are satis�ed in

the present case. He submits that the issue of family member occupying

tenanted premises not resulting in unlawful sub-letting is fully settled by

the judgment of this Court in Vasant Mahadev Pandit & Anr. Vs.

Zaibunnisa Abdul Sattar & Ors.

3

That the ratio of the judgment sqarely

applies to the present case.

8) Mr. Shah further submits that no admissions were given even

by Padmakant in R.A.D. Suit No. 2434 of 1985. That in any case, the stand

taken by Padmakant in his suit cannot amount to admission made by

Defendant No.1 and Padmakant’s action cannot bind Defendant No.1.

That in any case, the said suit was withdrawn and settled and not decided

on merits and that therefore the pleadings/alleged admissions therein are

not concluded by any judgment and hence not binding on any parties.

That the Trial Court had correctly appreciated this position. That the

3 2001 (3) Mh.L.J. 118

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Appellate Court has wrongfully considered pleadings in the withdrawn

suit as if it was a positive evidence of sub-tenancy. That beyond the

pleadings in the withdrawn suit, there is no iota of evidence to infer

unlawful sub-letting by Defendant No.1. Mr. Shah further submits that

the suit premises are large premises comprising of 1 BHK whereas the

adjoining Flat No.8 are smaller premises comprising of 1 Room Kitchen. It

is incomprehensible that a single unmarried person would be permitted to

occupy larger �at exclusively while family of Defendant No.1 would reside

in the smaller �at. The allegation of exclusive possession of Padmakant

has not be established in the facts of the present case. He prays for setting

aside the order passed by the Appellate Court.

9) Mr. Bhanage the learned counsel appearing for the

Respondent opposes the Revision Application. He submits that the

Appellate Court has rightly appreciated the entire material on record for

holding that the act of sub-letting is proved in the present case. That

exclusive possession of suit premises by Padmakant is admitted by him in

RAD Suit No. 2434 of 1985. The pleadings in the said suit leaves no

manner of doubt that Padmakant was exclusively occupying the suit

premises and wanted himself to be declared as a tenant. That therefore

Padmakant cannot be treated as a family member occupying the suit

premises with the original tenant. He submits that once exclusive

possession is admitted, nothing is required to be established by the

landlord. That Padmakant never pleaded in the previous suit that he was

occupying the suit premises as a family member with the original tenant.

He submits that there are judicial admissions in the said pleadings which

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stand on a higher footing than evidentiary admissions. In support, he

relies upon judgment of the Apex Court in Nagindas Ramdas Versus.

Dalpatram Ichharam alias Brijram and Ors.

4

. Mr. Bhanage relies on

judgment of Division Bench of this Court in Dattatraya Shripati Mohite

Versus. Shankar Ishwara Mohite

5

in support of his contention that

admission made by a party in a pleading in previous suit would bind him

10) Mr. Bhanage further submits that it is not necessary for the

landlord to prove any �nancial arrangement between the tenant and sub-

tenant. That payment of rent/charges by the sub-tenant is not required to

be proved and he relies on judgment of the Apex Court in Prem Prakash

Versus. Santosh Kumar Jain and Sons (HUF) and Ors.

6

.

11) Mr. Bhanage further submits that the manner in which

previous suit is withdrawn also speaks volumes. That the suit has not

been withdrawn simplicitor on the ground that there was an y

misconception in the mind of the Plaintiff-Padmakant. That mere

withdrawal of suit would not wipe out admissions given in the pleadings.

That Padmakant had infact secured an injunction during pendency of the

suit from dispossessing him from the suit premises. That the fact that the

injunction was granted shows that Padmakant was in exc lusive

possession of the suit premises and that Defendant No.1 was prevented

from entering into the suit premises.

4(1974) 1 SCC 242

5 1959 SCC Online Bom 5

6(2018) 12 SCC 637

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12) Mr. Bhanage further submits that it has come out in evidence

that Padmakant had a separate gas connection in suit premises/Flat No.7

with which Defendant No.1 did not have any concern. He submits that the

Appellate Court has rightly appreciated the entire evidence on record for

arriving at the conclusion of unlawful sub-letting. That no interference is

warranted in �ndings recorded by the Appellate Court in exercise of

revisionary jurisdiction by this Court. He prays for dismissal of the

Revision Application.

13) Rival contentions urged on behalf of the parties now fall for

my consideration.

14) In the present case, there are two adjoining �ats bearing Flat

Nos.7 and 8 in respect of which tenancies are created. Flat No.7 is a larger

�at comprising of 1 BHK admeasuring about 380-400 sq.ft, which are the

suit premises. The adjoining Flat No.8 is comparatively smaller �at

comprising of one room and kitchen admeasuring about 330-350 sq.ft.

Though the �ats are situated next to each other, it is an admitted position

that the �ats have separate entrances and that they are not

interconnected or combined in any manner. It appears that tenancy in

respect of Flat No.7 (suit premise) was created in the name of Defendant

No.1 whereas, tenancy in respect of Flat No.8 is in the name of his wife.

15) Defendant No.2-Padmakant is the brother of wife of

Defendant No.1-Jaykant. It is the case of Jaykant that both the Flats Nos.7

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and 8 are used jointly by his family. According to the Jaykant, his wife’s

brother-Padmakant, who was unmarried, was also permitted to reside

with the family. Ordinarily, if a close family member is permitted to reside

in the suit premises, such an act does not automatically become unlawful

sub-letting. However, it needs to be established that the whole family

resides in the premises as a one unit, without an element of exclusivity in

respect of any part of the premises or in respect of a family member.

Residence in unison as one family is

sine qua non for defeating an

eviction action on the ground of unlawful subletting. In ordinary

circumstances therefore, it would have been dif�cult for the Plaintiff to

prove unlawful sub-letting in the present case merely because of entry of

Padmakant into the suit premises.

16) However, the task of the Plaintiff-landlord was made easy by

Padmakant by �lling R.A.D. Suit No. 2434 of 1985. Contrary to the

tenant’s version of Padmakant being permitted to reside as a family

member in the suit premises, Padmakant raised an altogether different

story in his suit. He pleaded that he is the real tenant of the suit premises

bearing Flat No.7. He pleaded that Jaykant and his wife were residing in

adjoining Flat No.8 and that Padmakant accepted tenancy in respect of

Flat No. 7 in the year 1978. He pleaded that on account of cordial

relations, it was agreed that the rent receipt in respect of both the �ats

would be prepared in the joint names of Jaykant and Padmakant, but the

landlord refused to prepare rent receipt in the joint names, and this is

how rent receipts were issued only in the name of Jaykant. He pleaded

that he used to take meals with his sister and Jaykant till 1983 by paying

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an amount of Rs.120/- which was increased to Rs.150/- per month.

Padmakant pleaded that he was in exclusive use, occupation and

possession of the suit premises since 1978 and that Jaykant was a simple

benamidar. Padmakant further pleaded that after the year 1983, the

relationship soured, and he stopped taking meals with his sister. He

claimed that Jaykant and sister started demanding possession of the suit

premises from him in collusion with the landlady. This is how Padmakant

�led R.A.D. Suit No. 2434 of 1985 seeking declaration of tenancy and for

transfer of tenancy receipt in his name. Padmakant also sought injunction

against Jaykant and sister for restraining them from taking forceful

possession of the suit premises. It would be relevant to reproduce

averments in para-1, 3, 4, 6 as under:

1) Plaintiff is residing at �at No.7, Second �oor, Bozo building, Kamala

Nehru Cross Road No.1, Kandivali (West) Bombay 400 067 since the

inception of the tenancy in 1978. Plaintiff is a real tenant of the suit

premises the monthly rent whereof is Rs. 200/-.

3) Plaintiff 'is single and unmarried. Plaintiff's brother in law and sister

i.e. defendants Nos 1 and 2 were residing in the adjoining �at being �at

No.8, on the second �oor of the Bozo Building. Kandivali (West) Bombay

400 067 and Plaintiff being single and unmarried rented out the

adjoining �at No. 7, in the said building in the year 1978, at the request

of defendants Nos 1 and 2 as the relations between the Plaintiff and the

defendants Nos. 1 and 2 were very cordial. It was agreed that the rent

receipt should be prepared in the joint names of the Plaintiff and the

�rst defendant. However the owner of the premises refused to prepare

the rent receipt in the two names and the �rst defendant informed the

Plaintiff that the premises would go to landlord after and hence the rent

receipt was prepared in the name of �rst defendant in respect of the suit

premises, by the third defendant, the Plaintiff also did not take any

objection as the relations between the plaintiff and the defendant nos 1

sid 2 were very cordial at that time. Plaintiff also used to take his meals

with the defendant nos 1 and 2 till 1983 and was initially paying as.

120/- which was subsequently raised to Es. 150/- per month.

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4) Plaintiff states that he is in exclusive use, occupation, and possession

and control of the suit premises in his own right since 1978 though the

rent receipt stand in the name of the �rst defendant. Plaintiff states that

he is the real tenant of the suit premises and the �rst defendant is

simply a benamidar. Plaintiff states that whenever the �rst defendant

went to pay the rent of his premises to the third defendant, Plaintiff also

remitted the rent of the suit premises with the �rst defendant to the

third defendant. Plaintiff states that the �rst defendant after paying the

rent to the third defendant has kept rent receipts of the suit premises

with him and inspite of several request by the Plaintiff has failed and

neglected to return the rent receipts to the Plaintiff.

6) I say that i am an old and feeble person. I say that defendants nos. 1

and 2 try to take undue advantage of my helpless position. I say that

have got documentary evidence such as Ration Card, Election Record,

Bank Pass book in my possession to show that I am in exclusive use

occupation and possession of the premises and I am the real tenant of

the premises though the rent receipt of the suit premises stands in the

name of the �rst defendant who is only a benamidar.

17) The prayers in R.A.D. Suit No. 2434 of 1985 �led by

Padmakant were as under:

(a) That it may be declared that the Plaintiff is a real tenant of the suit

premises and the �rst defendant is merely a benamidar in respect of �at

No.7, second �oor, Bozo Building Kamala Nehru Cross Road No. 1,

Kandivali (West) Bombay 400 067.

(b) That the third defendant be ordered and decreed to transfer the rent

receipt of the suit premises from the name of the �rst defendant to the

name of the plaintiff 

(c) That the defendant Hos 1 and 2 their servants and agents be

restrained by an order and injunction from this Honourable Court from

taking forcible possession of inducting any person in the premises or

disturbing the Plaintiff's possession in any manner whatsoever without

due process of law in respect of �at no.7 second �oor Bozo Building

Kamala Nehru Cross Road No. 1, Kandivali (West) Bombay 400 067.

(d)  That the defendant No.1 and 2 and their agents and servants be

restrained by an order and injunction fron removing the articles and

things of the Plaintiff from the suit premises.

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(e) Costs of the suit be provided for;

(f) For such other and further relief as tha nature of the case may

require. 

18) Along with his suit, Padmakant produced following list of

documents:

LIST OF DOCUMENTS ON WHICH PLAINTIFF WILL RELY:

(1) Ration Card.

(2) Bank Pass book.

(3) Election Record.

(4) N.C. Complaint.

(5) Other correspondence prior to the suit.

(6) Gas connection 

(7) Electric bills paid by cheque 

19) Thus, Padmakant had a separate ration card, as well as gas

connection in respect of the suit premises. After exclusive possession of

the suit premises, Padmakant �led application for temporary injunction

to restrain Jaykant and sister from disturbing his possession. By order

dated 11 June 1985, the Trial Court granted

ex-parte ad-interim

injunction in terms of prayer clause (a) of the application which reads

thus :

(a) The defendant No.1 and 2, their servants and agents be restrained by

an order and in-junction from taking forcible possession or disturbing

my possession of the suit premises in any manner whatsoever of the suit

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premises namely Flat No.7, Second Floor, Bozo building, Komla Nehru

Cross Road No. 1 Kandivli (West), Bombay 400 067;

20) After hearing the parties, the ad-interim injunction was made

absolute on 2 September 1985. Thus, Defendant No.1-Jaykant and his wife

were restrained from disturbing possession of Padmakant in respect of

the suit premises. This falsi�es the theory of joint occupation of Flat No.7

by Jaykant and Padmakant as one family. It also falsi�es the claim of

Jaykant that Padmakant was permitted to reside in the suit premises as a

family member. Padmakant’s possession of suit premises to the exclusion

of Jaykant got proved on account of grant of temporary injunction.

21) As observed above, in ordinary circumstances, a family

member permitted to occupy tenanted premises resides as a family

member and not as exclusive possessor even in respect of operation of the

suit premises. In the present case, the whole of the suit premises were

apparently in occupation of Padmakant, in whose favour injunction was

granted by the Small Causes Court. During the period when injunction

operated, Jaykant and his wife were not even permitted to enter the suit

premises. They resided in a separate �at bearing Flat No.8. In such

circumstances, it is dif�cult to believe that Padmakant and Jaykant

resided jointly in Flat Nos.7 and 8 as members of one family. Padmakant

gave a blow to the joint family theory and raised a plea of exclusive

possession of the suit premises. This act of Padmakant in raising the plea

of occupying the suit premises to complete exclusion of Jaykant and his

wife is fatal to the defence of Jaykant in R.A.E. Suit No. 1225/3700 of

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1985. Infact, Padmakant’s plea of exclusive possession gave rise to a

cause of action for a landlord to institute eviction suit against the tenant.

22) In addition to Padmakant’s admissions in pleadings in his

RAD Suit, Jaykant and his wife also gave certain admissions in their

written statement �led in R.A.D. Suit No. 2434 of 1985. Firstly, they

denied that they ever served meals to Padmakant, which belied their

defence in the present suit that common meals were prepared in Flat No.7

for all family members. They pleaded in para-4 of the Written statement

that ‘

they deny that they were serving meals to the plaintiff since 1983 as

alleged

’. Jaykant and his wife also admitted existence of separate gas

connection and issuance of a separate ration card in the name of

Padmakant which are admissions given in previous suit by Padmakant

and Jaykant and would haunt them in the present suit as well.

23) Applicants have attempted to distance themselves from the

admissions given in the previous suit by contending that they are

irrelevant in the present suit. However, the law is to the contrary. In

Dattatraya Shripati Mohite, the Division Bench of this Court has held in

para-3 as under:

3. It is dif�cult to hold that by these observations the learned Chief

Justice intended to lay down the proposition that an admission on a

question of fact made by a party in the course of a proceeding has in

another proceeding no value whatever and cannot be regarded as a good

piece of evidence relying on which the opposing party may contend that

the claim made in the subsequent proceeding is unjusti�able in the light

of the admissions made in the earlier proceeding. In our view, Ramabai's

case 43 Bom LR 232 (AIR 1941 Bom 144) is not an authority in support of

the view that the Court is not even entitled to consider admissions

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solemnly made by a party in the course of proceedings in other suits

relating to the same subject-matter. We are unable to agree with the

observation made by the learned trial Judge in paragraphs 35, 36 and 44

of his judgment that the admissions made by defendants Nos. 1 and 2, in

the proceedings in suit No. 565 of 1948 and the revenue proceedings and

in the earlier suit No. 3 of 1941 have no evidentiary value.

24) More importantly, even Padmakant was a party Defendant to

the present eviction suit. He was impleaded as Defendant No.2 and has

�led Written Statement denying the act of unlawful sub-letting. Thus, in

the present suit, Jaykant and Padmakant acted in unison and presented a

joint defence denying the act of sub-letting. It appears that an additional

written statement was jointly �led by Defendant No.1 and Defendant

No.2a. Thus, the eviction suit was ultimately defended jointly by both the

Defendants. Their defence was thus common. In that view of the matter,

admissions given by Padmakant in R.A.D. suit would continue to haunt

both the Defendants in their eviction suit. The admissions are not

evidentiary admissions but are given in the pleadings, which becomes

judicial admissions. It is well settled position that admissions given in

pleadings which are judicial admissions, are fully binding on the party

making them and constitute waiver of proof. Such admissions by

themselves can be made the foundation of rights of the parties. It is held

by the Apex Court in Nagindas Ramdas (supra) in para-27 of the judgment

as under:

27. From a conspectus of the cases cited at the bar, the principle that

emerges is, that if at the time of the passing of the decree, there was

some material before the Court, on the basis of which, the Court could

be prima facie satis�ed, about the existence of a statutory ground for

eviction, it will be presumed that the Court was so satis�ed and the

decree for eviction though apparently passed on the basis of a

compromise, would be valid. Such material may take the shape either of

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evidence recorded or produced in the case, or, it may partly or wholly be

in the shape of an express or implied admission made in the compromise

agreement, itself. Admissions, if true and clear, are by far the best proof

of the facts admitted. Admissions in pleadings or judicial admissions,

admissible under Section 58 of the Evidence Act, made by the parties or

their agents at or before the hearing of the case, stand on a higher

footing than evidentiary admissions. The former class of admissions are

fully binding on the party that makes them and constitute a waiver of

proof. They by themselves can be made the foundation of the rights of

the parties. On the other hand, evidentiary admissions which are

receivable at the trial as evidence, are by themselves, not conclusive.

They can be shown to be wrong.

(emphasis added)

25) Thus, all the admissions given by Padmakant would bind

both Defendant Nos.1 and 2 in the eviction suit. Defendant No.1 cannot

seek to selectively escape the consequences of such admissions. The Trial

Court erred in glossing over such vital admissions given by Padmakant

and also by Jaykant in the withdrawn suit. Merely because the suit was

withdrawn, the same does not mean that the judicial admissions made in

pleadings �led therein would get evaporated. Contrary to the admissions

given in the previous suit, the Trial Court has perversely held that

Plaintiff failed to prove that Defendant No.2 was in exclusive possession

of the suit premises. The Appellate Court has rightly reversed the �ndings

of the Trial Court by holding that pleadings made by Defendant No.2 in

the previous suit would bind him. The Appellate Court has rightly held

that it was not permissible for Defendant No.2 to wriggle out of the said

admissions on the ground that the previous suit was �led out of a

misunderstanding.

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Neeta Sawant CRA-523 OF 2022

26) Even if admissions in the previous suit are to be momentarily

ignored, it is seen that there are several factors which are clearly proved

even in the present case, which are suf�cient for inferring the act of

unlawful subletting. They are:

(i) Securing of separate gas connection in Flat No.7 by Padmakant.

If Padmakant was merely permitted to stay in the suit premises

as a family member, he could not have secured separate gas

connection for himself. Thus, there are two separate gas

connections in the names of Padmakant for Flat No.7 and

Jaykant for Flat No.8 thereby destroying the theory of residence

as family members.

(ii) Padmakant has also been issued a separate ration card meaning

thereby that he was a separate unit than the family of Jaykant.

Thus, Padmakant’s ration card was in respect of the suit

premises (Flat No.7) whereas Jaykant’s ration card was in respect

of Flat No.8. This again signi�es existence of two separate units

and not joint residence as family members.

(iii) Flat Nos.7 and 8 are not conjoint. They are having separate

entrances. The factum of issuance of separate gas connection

indicates existence of separate units in the two �ats.

From the above factors, it can easily be inferred that the occupiers of Flat

Nos.7 and 8 did not reside together as family members.

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27) Though ordinarily, family members residing together in suit

premises does not give rise to subletting, however mere relation with the

inductee as a relative cannot be a ground for rejecting the ground of

subletting in every case. In a given case, subletting can also occur in

respect of family members. Mere relationship between inductor and

inductee cannot quell the presumption of subletting if exclusive

possession by the inductee is proved. Thus, if Defendant-tenant was in

possession of only one premises and he had permitted his wife’s brother

to reside with him as his family member, the act of sub-letting cannot be

presumed. However, in the present case, there are two sep arate

units/premises of which tenancies were created by the landlord. The

tenancy in respect of Flat No.7 (suit premises) was in the name of

Defendant No.1-Jaykant and tenancy in respect of Flat No.8 is in the

name of Jaykant’s wife. If a tenant in possession of two premises, lets one

out of the two premises to be exclusively used and occupied by his

relative, the act of subletting can be inferred and the presumption of

subletting cannot be dispelled merely on the strength of relationship

between the parties. What is important is the factum of ‘exclusive

possession’ by Padmakant in respect of the suit premises, which is clearly

established. Apart from his pleaded case of exclusive possession, order of

temporary injunction granted in favour of Padmakant on 11 June 1985,

which continued till 9 April 1986, enabled him to exclusively occupy the

suit premises. During this period, Jaykant and his wife were prevented

from entering into the suit premises. Thus, exclusive possession of

Padmakant in respect of the suit premises atleast for same time is clearly

established.

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28) Mr. Shah has strenuously relied on judgment of this Court in

Vasant Mahadev Pandit (supra). In that case, the wife of the deceased

brother resided with the tenant and such act was not considered as sub-

letting under Section 13(1)(e) of the Bombay Rent Act. The premises were

let out to Vasant Pandit for residence. He left the suit premises and

permitted his brother and father-in-law of another brother to reside in

the suit premises. During pendency of the suit, original defendants

expired and wife of the brother-Laxman and son of Late, V.R. Salvi were

brought on record as legal heirs. The Trial Court rejected the ground of

sub-letting, but the Appellate Court decreed the suit. The petition was

�led in this Court by the original tenant-Vasant Pandit, brother’s wife-

Sunanda Laxman Pandit and son of late V.R. Salvi: Mr. R.V. Salvi. In the

facts of that case, this Court held in paras-9, 10, 11 and 12 as under:

9. The question that arises for consideration is whether the possession of

defendants 2 and 3 of the suit premises amount to unlawful subletting of

the suit premises by defendant No. 1. As mentioned above it is not in

dispute that defendant No. 2 as well as defendant No. 3 are closely

related to defendant No. 1. Original defendant No. 2, since deceased,

was the real brother of defendant No. 1; whereas original defendant No.

3, since deceased, was the father in law of the real brother of defendant

No. 1. The case made out on behalf of the defendants before the Court

below was that both the defendants 2 and 3 were occupying the suit

premises only as family member of defendant No. 1. It was contended on

behalf of the defendants that since defendants 2 and 3 were not

strangers, the onus of establishing that the premises were unlawfully

sublet to defendants 2 and 3 and that the defendants No. 1 was

pro�teering out of the said transaction by charging sum of Rs. 50/- per

month from them was very heavy on the plaintiff. No doubt the

Appellate Court has recorded a �nding that the plaintiff has established

the case of unlawful subletting in favour of defendants 2 and 3, however,

it is contended that, the said conclusion has been reached on the basis of

surmises and conjectures. On the other hand the learned counsel for the

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PAGE NO. 20 OF 27

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respondent No. 1- plaintiff essentially adopted the conclusions reached

by the Appellate Court.

10. It is well settled that to make out a case of subletting the party has to

establish that the party is in exclusive possession of the suit premises

upon payment of consideration for such purpose. In the present case, on

the basis of evidence on record and as analyzed by both the Courts below

it is not possible to even remotely suggest that defendants 2 and 3 were

in exclusive possession of the suit premises. Inasmuch as, besides

defendants 2 and 3, other family members including mother of

defendant No. 1 were all along staying in the suit premises. At any rate,

there is absolutely no positive evidence brought on record by the

plaintiff to show that defendant No. 1 was charging consideration that

too a sum of Rs. 50/- per month from defendants 2 and 3. On close

examination of the pleadings it would appear that vague allegation has

been made that defendant No. 1 handed over exclusive possession of the

suit premises to defendants 2 and 3 at the monthly rent of Rs. 50/- with

or without the permission of the plaintiff. The assertion in the plaint is

too vague and general, for it is not clear as to whether Rs. 50/- was being

charged either from defendant No. 2 or from defendant No. 3 or from

both. Be that as it may, the said assertion in the plaint was categorically

denied by the defendants in their written statement. Besides denial the

defendants came out with a speci�c case, as stated in para 7 of the

written statement. Besides the speci�c pleading, the defendant adduced

oral evidence of Vasant defendant No. 1 as well as of D.W. 2 Sunanda

impleaded defendant No. 2/1 and of R.V. Salvi impleaded defendant No.

3/1. All the defendants have consistently deposed on oath that

defendants 2 and 3 were staying in the suit premises as family members

and there was no question of subletting the suit premises to them by

defendant No. 1. The said defendants have also consistently deposed

that no amount was paid either by defendant Nos. 2 or by defendant No.

3 towards consideration for occupying the suit premises as sub-tenants.

11. In the light of denial by the defendants with regard to the averments

of subletting and pro�teering, the onus naturally shifted on the plaintiff

to adduce positive evidence to show that defendants 2 and 3 were put in

exclusive possession of the suit premises and that the defendant No. 1

had in fact charged any amount either from defendant No. 2 or from

defendant No. 3 or from both towards consideration of subletting. No

such evidence has come on record except the bare words of the plaintiff.

As a matter of fact rebuttal by the defendants of the allegations of

subletting and pro�teering has gone unchallenged since the plaintiff

failed to adduce any positive evidence to counter the same. I have no

hesitation in holding that in view of the relation between the defendants

inter se it can be presumed that defendants 2 and 3 were staying only as

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PAGE NO. 21 OF 27

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family members of defendant No. 1. To rebut this presumption onus was

very heavy on the plaintiff to lead positive evidence and not merely his

bare words.

12. It is not unknown in our society that brothers and the wives of the

deceased brother would come and stay in case of distress. It is also not

unknown that relatives in distress would take shelter with their

relations. The evidence adduced on behalf of defendants would clearly

go to show that defendant No. 2 was none else but the real brother of

defendant No. 1. Assuming that the suit premises were let out to

defendant No. 1 the fact remains that defendant No. 2 was using the suit

premises only in the capacity of a family member of defendant No. 1.

After Laxman expired, his wife Sunanda impleaded defendant No. 2

continued to occupy the suit premises along with her mother in law

Yashodabai i.e. mother of defendant No. 1. The evidence which has also

come on record and not seriously challenged by the plaintiff is that the

defendant No. 3 was the father in law of the real brother of defendant

No. 1. In that sense he was also related to the defendant No. 1.

Although, defendant No. 3 was not a blood relation, but generally he was

closely related to the brother of defendant No. 1 and therefore can be

said to be a family member. Obviously because of the close relation the

defendant No. 3 was accommodated in the suit premises while in

distress. The evidence adduced on behalf of defendants go to show that

defendant No. 3 was compelled to shift in the suit premises due to threat

of demolition of his accommodation which he was occupying at Thane.

In other words, the evidence would unfailingly indicate that defendants

2 and 3 were occupying the suit premises only as the family members of

defendant No. 1 and in no other capacity. If the premises are occupied by

the family member, even if such member has joined the original tenant

subsequently that by itself will not amount to creation of any sub-

tenancy in his favour. Such interpretation cannot be countenanced at

all, for even the legislature in its wisdom has thought it appropriate to

exclude family members from being licensee. If reference is made to the

de�nition of licensee, it would be seen that a member of the family

residing together with the tenant is expressly excluded from the

de�nition of licensee. If the principle underlying this legislative intent is

applied to the fact situation I have no hesitation to hold that even if a

family member starts staying with the original tenant at a later stage

that by itself will not attract the mischief of unlawful subletting.

Observations made by this Court in judgment reported in the case of

Babanrao Shankarrao Chavan v. Chandrashekhar Ramchandra Shinde,

1984 (2) Bom. C.R. 671, would be useful, which reads thus:

"9.......... ............ ............ ............... ..............

....

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PAGE NO. 22 OF 27

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It is not unknown in our country that when a widowed sister

comes to reside with her brother and when she starts residing

with him she resides not as a servant or a stranger, but resides as

part and parcel of the family. This is the rule. There may be

exceptions. But if there are exceptions, the exceptions have got

to be proved by special evidence. In the absence of any such

evidence to the contrary, it must be assumed that a widowed

sister who comes to stay with her brother along with her, young

one would be staying with him not as a stranger but as brother's

family." Likewise her younger son would be part of that very

family."

29) The judgment in Vasant Mahadev Pandit, in my view, has no

application to the facts of the present case. In that case, though the

tenant had left the suit premises, his mother continued to reside therein.

It is in the light of these peculiar facts, brother’s wife and father-in-law of

another brother were not treated as unlawful sub-tenants. The case did

not involve existence off two separate premises and the issue of exclusive

occupation of one out of the two premises by a relative. Also, the

judgment in Vasant Mahadev Pandit was delivered in the context of the

law which prevailed at that time, which required proof of payment of

rent/charges, which law has subsequently undergone change and it is no

longer necessary to prove the element of any payment by the sublettee.

The present case has unique facts where the sublettee-Padmakant

claimed exclusive possession of the suit premises while the tenant

continued to reside in a separate and distinct premises being Flat No.8.

Therefore, the judgment of this Court in Vasant Mahadev Pandit has no

application to the facts of the present case.

30) Mr. Shah has strenuously contended that mere possession of

the suit premises by a relative is not suf�cient to presume the act of sub-

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PAGE NO. 23 OF 27

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Neeta Sawant CRA-523 OF 2022

letting and Plaintiff must prove payment of some consideration/rent by

the inductee to the tenant. Reliance is placed on judgment of the Apex

Court in Delhi Stationers and Printers (supra). However, the law has

developed subsequently and now it is an established position that proof

of demand of rent is not a

sine-qua-non for establishing the act of sub-

letting. Sub-tenancy comes into existence when a tenant gives up

possession of the suit premises wholly or in part and puts another person

in exclusive possession thereof without landlord’s knowledge. In such

circumstances, it is neither possible nor necessary to prove existence of

any �nancial transaction by way of direct evidence. 31) In Prem Prakash, (supra) the Apex Court has held that the

law does not require payment of charges/rent to be proved for inferring

sub-letting by evidence and the Court is permitted to draw its own

inference upon facts of each case. It is held in paras-17 to 21 as under:

17. Undoubtedly, 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.

18. In this regard, it is appropriate to quote a decision of this Court in

Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh wherein 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.

19. Again, in Kala 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

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PAGE NO. 24 OF 27

24 April 2026

Neeta Sawant CRA-523 OF 2022

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.

20. In Vaishakhi Ram v. Sanjeev Kumar Bhatiani, it was held as under:

(SCC p. 362, para 21)

"21. 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.

Reliance can be placed on the decision of this Court in Joginder

Singh Sodhi v. Amar Kaur. Therefore, we are in full agreement

with the High Court as well as the courts below that since

Appellants 2 to 4 had been in exclusive possession of the suit

shop and Appellant 1 could not prove that it was not a case of

sub-letting, the suit shop had been sub-let by Appellant 1 in

favour of Appellants 2 to 4. Therefore, no interference can be

made with the �ndings arrived at by the High Court as well as the

courts below on the question of sub-letting."

21. 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 obviously under a mutual agreement or

understanding between the 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 dif�cult 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 dif�cult 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

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PAGE NO. 25 OF 27

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Neeta Sawant CRA-523 OF 2022

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 af�rmative evidence and

the court is permitted to draw its own inference upon the facts of the

case. 

(emphasis added)

32) Thus, there is no burden on the landlord to prove payment of

rent/charges by inductee to the tenant. The moment the act of putting

inductee in exclusive possession of whole or part of the suit premises is

proved, the inference of subletting can be drawn and the onus shifts on

the tenant to prove that the induction does not amount of subletting.

33) The conspectus of the above discussion is that the act of

unlawful subletting is correctly held to be proved by the Appellate Court.

The ground for eviction under Section 13(1) (e) of the Bombay Rent Act is

thus clearly established.

34) The suit was instituted in the year 1985 which rema ined

pending for 26 long years and was decided only in the year 2011. The

Appeal thereafter remained pending for 11 long years. The present

Revision Application is pending for last 4 long year. Pendency of

litigation has enabled the Applicants to hold down to possession of suit

premises for the last 40 long years. Time has come for the Applicants give

up possession of the suit premises to the landlord/her legal heirs. It is not

that upon their eviction from the suit premises, the Applicants would be

rendered homeless. They would still continue to remain in possession in

respect of adjoining Flat No.8.

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PAGE NO. 26 OF 27

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Neeta Sawant CRA-523 OF 2022

35) In my view, therefore no interference is warranted in the

eviction decree passed by the Appellate Court in exercise of revisionary

jurisdiction of this Court under Section 115 of the Code. Revision

Application is bereft of merits. It is accordingly dismissed without any

order as to costs. The Applicants shall have time of 6 months for handing

over possession of the suit premises, subject to �ling of usual undertaking

in this Court within 6 weeks. With dismissal of the Civil Revision

Application nothing would survive in the Interim Application, the same is

disposed of.

[SANDEEP V. MARNE, J.]

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PAGE NO. 27 OF 27

24 April 2026

NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.04.24

19:08:11

+0530