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Santosh Kumar Vs. Pawan Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2498 of 1980
Judge
Reported inAIR1983P& H205
ActsTransfer of Property Act - Sections 106; East Punjab Urban Rent Restriction Act; Partnership Act
AppellantSantosh Kumar
RespondentPawan Kumar and ors.
Cases Referred(Ram Sarup v. Om Prakash
Excerpt:
.....material alterations in the premises which have materially impaired the value and utility of the premises, in dispute ? 4. whether the premises are unfit and unsafe for human habitation ? 5. whether respondent no. the learned counsel also contended that from the evidence on the record, it was clearly proved that the tenant was not in occupation of the premises, in dispute. 7. he clearly stated in his examination-in-chief that he sits on the shop, in dispute, and carrier of the firm business. it is well established by now that when eviction is sought on the ground of subletting, the onus to prove the same is on the landlord. reference in this behalf may be made to shrimati krishnawati's case (air 1974 sc 280)(supra). it has been held therein that when the eviction is sought on that..........sub-tenant ishwar dass goel who is partner of the tenant has his separate business also in a different premises. the only argument raised on behalf of the landlords to prove that the tenant was not in possession of the premises, in dispute, is that according to the terms of the partnership deed. exhibit rm5/1 he is neither to maintain the account books of the firm, nor he is to operate any bank accounts to be opened in the name of the firm. according to the term of the said partnership deed, the account books of the firm shall be maintained by ishwar dass goel and the bank account shall be operated by him individually. however, this, by itself, does not prove that the tenant is not in possession of the premises, in dispute. santosh kumar, tenant, appeared as r. w. 7. he clearly stated.....
Judgment:
ORDER

1. The tenant-petitioner has filed this revision petition against the order of the Appellate Authority whereby the order of the Rent Controller, dismissing the ejectment application was set aside and the order of eviction was passed against him.

2. The premises, in dispute, are a shop bearing No. C-675, situated at the G. T. Road, Karnal. Prior to the partition of the country, the father of tenant, Banarsi Dass, was occupying the premises, in question, as a tenant under the original owner who was an evacuee. Later on, these were allotted to one Dalip Singh son of Anar Singh, who subsequently sold the same vide sale deed dated April 28, 1972, in favour of the landlords-respondents. The ejectment of the tenant was sought from the demised premises on the following grounds :

1. that the tenant had made material alterations in the premises without their consent ;

2. that the tenant did not pay or tender the arrears of rent due from him since April 1, 1972;

3. that there were cracks in the walls and the building was beyond repairs and was in a condition that it endangered human life and property;

4. that the tenant was of a quarrelsome nature and his acts and conduct were nuisance to the neighbours and the occupants of the building in the neighbourhood;

5. that the tenant had sublet the premises to one Ishwar Dass Goel and otherwise had transferred his right and interest under the lease to him and he had started his business in the shop under the name and style of Amarpali Gift Palace; and

6. that the tenant changed the user of the shop, in dispute, inasmuch as the same was let out for carrying on the shoe business only which he was carrying on therein under the name and style of Friends Boot House, but had now started dealing in watches etc. The application for ejectment was filed on October 27, 1975. All the allegations made therein were controverted by the tenant and on the pleadings of the parties, the Rent Controller framed the following issues :

1. Whether the respondent is liable to be ejected for non-payment of rent (insufficient tender) ?

2. What is the agreed rate of rent ?

3. Whether respondent No. 1 has made material alterations in the premises which have materially impaired the value and utility of the premises, in dispute ?

4. Whether the premises are unfit and unsafe for human habitation ?

5. Whether respondent No. 1 is a nuisance ?

6. Whether respondent No. 1 has sublet or transferred his right to respondent No. 2 ?

7. Whether there has been change of user If so, to what effect ?

8. Whether respondent No. 2 is a partner of respondent No. 1 ?

9. Whether notice under Section 106, T. P. Act, is invalid ?

10. Relief

Under issues Nos. 1 and 2, it was found by the Rent Controller that the rate of rent was Rs. 20.62 and not Rs. 100/- per month, as claimed by the landlords. It was, therefore, held that the tender of arrears of rent was valid. Issues Nos. 3, 4, 5 and 6 were found against the landlords and as a result, the ejectment application was dismissed. In appeal, the appellate authority affirmed the findings of the Rent Controller under issues Nos. 1 and 2 and held that there was no substance in the contention of the landlords that the rate of rent was Rs. 100/- per month. The findings of the Rent Controller no issues Nos. 3, 4 and 5 were also affirmed by it. Under issue No. 6, it found that the plea of subletting and the transfer of the lease rights by the tenant in favour of Ishwar Dass Goel was proved and, therefore, the finding of the Rent Controller on this issue was reversed. The finding of the Rent Controller under issue No. 7 was also reversed by the Appellate Authority and it was held that the shop, in dispute, was let out to the tenant for carrying on the business of shoes only whereas he was now dealing in watches and electric goods under the name and style of Amerpali Gift Palace. In view of the findings under issue No. 6, the findings on issue No. 8 were also reversed. As a result of these findings, the order of the Rent Controller was set aside and the eviction order was passed against the tenant. Aggrieved against the same, he has come up in revision to this Court.

3. The learned counsel for the petitioner, vehemently contended that in this case neither the subletting nor the change of user has been proved by the landlords and the findings of the Rent Controller in those respects were correct which have been reversed by the Appellate Authority without any cogent reason inasmuch as it has acted illegally in reversing the fillings of the Rent Controller on these two issues. According to the learned counsel, it has been amply proved to the learned counsel, it has been amply provided on the record that the tenant entered into a partnership with Ishwar Dass Goel on Aug. 14, 1975, as there was paucity of funds with him and that the partnership was a genuine one inasmuch as the partnership deed was registered with the Income-tax Department. In any case, the tenant has been in possession of the demised premises throughout and has never parted with their possession through he entered into the partnership with Ishwar Dass Goal who was himself running a separate shop dealing in watches etc. and also sits on the premises, in question, as and when he finds time. Under these circumstances, the learned counsel contended, there was no question of any subletting by the tenant when the possession of the premises was never parted with by him. In support of his contention, the learned counsel placed reliance on Krishnawati v. Hans Raj, 1974 Ren CR 163 : (AIR 1974 SC 280), Smt. Shanti Devi v. Puran Chand, (1975) 77 Pun LR 654, Jaswant Rai v. Dharampal, 1979(1) Ren CR 569(1) and unreported judgment of I. S. Tiwana, J., in Civil Revn. Petn. No. 1338 of 1975(Raj Kumar Jain v. Mehnga Ram), decided on Mar. 19, 1981.

On the other hand, the learned counsel for the landlords contended that on the basis of the evidence on record, it has been found as a fact by the Appellate Authority that the tenant had sublet the premises to Ishwar Dass Goel and that the alleged partnership was just a camouflage and was not a genuine one. This being a finding of fact, could not be interfered with in the exercise of the revisional jurisdiction by this Court. The learned counsel also contended that from the evidence on the record, it was clearly proved that the tenant was not in occupation of the premises, in dispute. It was Ishwar Dass Goel or his son Kul Bhushan who was carrying on the business in the demised premises. The tenant was getting rent from them in the garb of the alleged Partnership entered into between the parties on Aug. 14, 1975. The said partnership was never registered with the Registrar of Firms under the Partnership Act. Even no reply was given to the notice, Exhibit A-4, dated Sept. 23, 1975, which was given to the tenant before the filing of the ejectment application. Thus, according to the learned counsel, it was clear case of subletting. The tenant having no finance with him, was not in a position to enter into any partnership with Ishwar Dass Goel and had entered into the arrangement of the alleged partnership to secure rent from him by subletting him the premises, in dispute.

3-A. After hearing the learned counsel for the parties on the question of subletting. I of the considered opinion that the finding of the Rent Controller, in this respect, is more convincing and based on the evidence on record whereas the finding of the Appellate Authority thereon is illegal and improper. On the facts found by the Appellate Authority, it could not be held that it was a case of subletting. There is absolutely no evidence on the record that the tenant was doing any other business that the one which is being carried on in the parties, in dispute, under the name and style of Amarpali Gift Palace.

4. It has come into the evidence that Santosh Kumar, tenant, six in the premises, in dispute, and is carrying on the business of the firm. The alleged sub-tenant Ishwar Dass Goel who is partner of the tenant has his separate business also in a different premises. The only argument raised on behalf of the landlords to prove that the tenant was not in possession of the premises, in dispute, is that according to the terms of the partnership deed. Exhibit RM5/1 he is neither to maintain the account books of the firm, nor he is to operate any Bank accounts to be opened in the name of the firm. According to the term of the said partnership deed, the account books of the firm shall be maintained by Ishwar Dass Goel and the Bank account shall be operated by him individually. However, this, by itself, does not prove that the tenant is not in possession of the premises, in dispute. Santosh Kumar, tenant, appeared as R. W. 7. He clearly stated in his examination-in-chief that he sits on the shop, in dispute, and carrier of the firm business. No question was put to him in his cross-examination in this respect. Ishwar Dass Goel, the alleged sub-tenant, appeared as R. W. 5. He stated in his examination-in-chief that on the shop, in dispute, mostly it is Santosh Kumar, tenant, who does the business. Along with him, his son also remains there for some time and he (R. W. 5) himself sits on a different premises dealing in watches. No cross-examination was directed against this witness in this respect.

The landlords produced Kul Bhushan son of Ishwar Dass Goel, partner of the firm, as A. W. 6. He also stated that when he sits on the shop, in dispute he too issues the cash memos, but when any other partner sits thereon, then he issues the same. He categorically stated that the accounts of the firm are maintained by him and the same are genuine. He further said that the partnership was also genuine and that the accounts have been accepted by the Income-tax Department. The statement of account produced by him shows that the payments of rent and the electricity charges have been debited to the firm's account. There is no evidence that Ishwar Das Goel had paid the amount to electricity charges or the rent exclusively from his pocket. The statements of the two neighbours produced by the tenant also show that Santosh Kumar, tenant, carries on the business at the shop, in dispute. There is no evidence adduced on behalf of the landlords that Santosh Kumar, tenant, was running any separate business and that he was not expected to sit on the shop, in dispute. It is the arrangement of the partners as to which work is assigned to one partner and what work is assigned to the other partner. The mere assigning of the operating of the Bank account by Ishwar Dass Goel or the maintaining of the accounts by him does not prove the Santosh Kumar, tenant, is not working on the premises, in dispute, and is not running its business.

According to the terms of the partnership deed, Exhibit R. W. 5/1, the share capital of Santosh Kumar, was to the extent of 30 per cent, and that of Ishwar Dass Goel was to the extent of 70 per cent, and that any party investing capital in excess of his share was entitled to charge interest at the rate of 12 per cent. per annum of the excess amount invested by him. The balance-sheets of the firm, which were placed on the record, are, Exhibits AW6/A to AW6/F. It was argued on the basis of the said balance-sheets that in the year 1975-76, the excess capital amount of Ishwar Dass Goel was Rs. 18,603/- which increased to Rs. 37,193/- in the year 1978-79/ Thus, according to the learned counsel for the landlords, he was entitled to interest amounting to Rs. 14,316/- from Santosh Kumar abovesaid. Under the circumstances, the Appellate Authority was of the view that it was difficult to accept the contention that Ishwar Dass Goel would have continued to invest more than his share and would not have realised interest according to the stipulated rate on the excess amount and that he continued paying the share in profits to Santosh Kumar. This approach of the Appellate Authority, in my opinion, is wrong and illegal.

In the case of subletting, the Court are only concerned as to the parting of the possession by the tenant. Once it is held that the tenant is in occupation of the premises, then, it becomes immaterial as to under what arrangement he has joined the other person as a partner with him. It will be only with the parting of the possession by the tenant which would amount to subletting of the premises by him. It will be necessary to prove in a given case that the tenant has nothing to do with the premises as he is not in occupation of the same and it is the alleged sub-tenant who is in occupation thereof under the garb of some partnership deed. If that is proved, then, it becomes secondary as to what type of arrangement the tenant has entered into with the alleged sub-tenant. Reference was made to Hirala v. Gian Singh, AIR 1951 Punj 441 on behalf of the landlords to contend that when the tenant alleges that he had entered into partnership with a person a possession of the premises and the partnership is not proved, then the tenant is liable to be ejected. There cannot be any dispute with this proposition. Of course, if some other person other the tenant is in possession of the premises, in dispute, then, it is for the tenant to prove as to in what capacity that person is occupying the premises.

It is only in that situation that the question of proving any partnership etc. arises. At the same time, it will also be material whether the alleged sub-tenant is in exclusive possession of the premises or along with the tenant he is also occupying the said premises as a partner. It is only to prove the occupation of the other person that the tenant is called to show how the other person was in occupation of the premises; either in the capacity of a servant, or a partner or otherwise. If it is fully explained, then, it cannot be said to be a case of subletting. It is well established by now that when eviction is sought on the ground of subletting, the onus to prove the same is on the landlord. Reference in this behalf may be made to Shrimati Krishnawati's case (AIR 1974 SC 280)(supra). It has been held therein that when the eviction is sought on that ground, it is now well settled law that the onus to prove the subletting is on the landlord. If the landlord prima facie shows that the occupant was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. It is only in case of exclusive possession of the premises by another person that the tenant is called upon to rebut the evidence of the landlord.

In Smt. Shanti Devi's case (1975) 77 Pun LR 654(supra), Muni Lal Verma, J., held that subletting is not defined under the East Punjab Urban Rent Restriction Act. A party if he has transferred his rights under the lease and by delivering possession of the said property becomes a stranger, and has no right to have its possession restored to him. There can be no subletting without the lessee's parting with the legal possession of the demised premises. The real west to determine subletting is whether the tenant has walked out of the demised premises and has handed over its exclusive possession and control to the sub-tenant. A tenant is entitled to use the demised property for any business he likes and if he takes someone as partner in his business, the partner does not get the right of tenancy and cannot claim the status of a tenant sub-tenant. If the tenant takes someone as partner in his business, it cannot be treated as subletting of the premises to the partner.

On the basis of this judgment, I. S. Tiwana, J., in a similar situation observed in Raj Kumar Jain's case (supra), that what is to be seen is whether the tenant had completely parted with the possession of the demised premises or the alleged sub-tenant had been placed by him in exclusive possession of the said premises and for a valuable consideration. Reference was also made by the learned counsel for the tenant to Vir Bhan Aggarwal v. Kuni Lal, 1971 Cur LJ 540 : (AIR 1971 Punj 456). Therein, it was held that if the tenant originally takes the premises on lease in his individual capacity and later on two more persons are joined by him in his business as partners, it does not amount to subletting. Thus, taking into consideration all the facts and circumstances of the case, I am of the considered opinion that the landlords have failed to prove the ground of subletting. The finding of the Rent Controller, in this respect, is restored and that of the Appellate Authority is set aside.

4-A. As regards the ground regarding the change of user of the demised premises by the tenant, admittedly, there is no rent-note executed between the parties. Even Dalip Singh, from whom the landlords purchased the demised property in the year 1972, was not produced, although admittedly, the premises were rented out to the father of tenant Santosh Kumar even prior to him when the property was under the control of the Custodian. It is also in evidence that the father of tenant Santosh Kumar was doing the cloth business in the premises, in dispute. Later on, Santosh Kumar started the business of selling shoes. According to the averments made in the eviction application, the premises were let out for selling shoes only whereas now the tenant was running the business of watches and electric goods etc. Since there is no evidence to prove as to for what purpose the premises were let out, it cannot be said that there is any change of user; rather from the evidence it appears that the premises were let out for running the business; may be cloth business, or shoes business or the present business of watches the electric goods.

The Full Bench judgment of the Court in Des Raj v. Sham Lal, AIR 1980 Punj and Har 229, relied upon by the learned counsel for the landlords has no relevancy to the facts of the present case because in that case, the demised premises were a shop. The lease deed was silent in regard to the purpose for which they were let out. They were, in fact, exclusively used by the tenant as a godown. It was in the circumstances held by the Full Bench that the sue of the premises in that case amounted to the change of the user. As stated earlier, there being no evidence in this case as to the purpose for which the premises were let out initially, it cannot be said that there was any change of user. The landlords purchased the property in the year 1972 from Dalip Singh. Even he was not produced in evidence no prove as to for what purpose the demised premises were let out. The learned counsel for the landlords referred to an unreported judgment in Civil Revn. Petn. No. 654 of 1962(Ram Sarup v. Om Prakash) decided on Sept. 6, 1963, by S. S. Dulat, J., and contended that the business carried on by the tenant at the time of the taking of the premises on rent for the first time will be presumed to be the business for which the premises were let out.

Again, the said judgment does not apply to the facts of the present case because the premises, in dispute, were originally let out by the evacuee, before the partition of the country, of the father of the tenant. Later on, Dalip Singh became their owner, who as stated earlier, was not produced in evidence by the landlords to prove the purpose for which the premises were let out. Thus, it cannot be said that the cloth business for which they were being used previously, was the only purpose for which they were originally rented out. Admittedly, after the cloth business, the tenant was doing the business of selling shoes therein. Under these circumstances, the change of user cannot be said to have been proved by the landlords in the present case. In this respect also the approach of the Rent Controller was correct and that of the Appellate Authority was illegal.

5. No other point arises, nor has any been urged.

6. For the reasons recorded above, this revision petition succeeds and is allowed. The order of the Appellate Authority is set aside and that of the Rent Controller dismissing the ejectment application is restored with costs.

7. Petition allowed.


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