V.S. Aggarwal, J.
1. The present revision petition has been filed by Nanak Chand and two others (hereinafter described as 'the petitioners') directed against the judgment of the learned Appellate Authority, Karnal, dated 7.6.1990. By virtue of the impugned judgment, the learned Appellate Authority had set aside the order passed by the learned Rent Controller and instead passed an order of eviction against the petitioners with respect to the shop in dispute. The petitioners were granted a month's time to vacate the premises.
2. The relevant facts are that respondent Bal Kishan had filed a petition for eviction against the petitioners with respect to the shop in dispute. It was asserted that Nanak Chand, petitioner No. 1, is a tenant in the suit premises at a monthly rent of Rs. 35/-. He was running the business of tyre and tube repairs. Respondent Bal Kishan had purchased the shop from Smt. Notani Bal on 27.12.1978. The grounds of eviction pressed were that petitioner No. 1 had not paid the arrears of rent from 1.1.1979 to 31.8.1981 and that petitioner No l without the permission of the respondent-landlord has sublet the premises to petitioners No. 2 and 3 or at any rate had transferred his tenancy rights in their favour. Plea had also been raised that petitioner No. 1 has ceased to occupy the demised premises for a period more than four months before the filing of the petition without just and sufficient cause. He has shifted his business to a shop situated at Meerut Road where he works under the name and style of M/s Nanak Tyre Works. Another ground pressed was that certain acts of the petitioner constitute nuisance.
3. The eviction petition had been contested. So far as the ground of non-payment of rent is concerned, entire rent alongwith interest and costs had been paid and did not survive. It was denied by the petitioner that the premises in question had been sublet to petitioners No. 2 and 3. It was asserted that all the petitioners were brothers. They were working under the name and style of Nanak Tyre Works. They were running a joint business in the shop in dispute as well as in the shop situated on Meerut Road, Karnal. They claimed to be joint in mess, business and petitioner No. 1 was their eldest brother. On that account it was denied that the property has been sublet or parted with. It was even denied that the property had not been occupied by petitioner No. 1 or the acts of the petitioners were a nuisance.
4. The learned Rent Controller held that it has not been established that petitioner No. 1 had ceased to occupy the premises for a period more than four months before the filing of the petition. If was also held that it has not been established that the acts of the petitioners were a. source of nuisance to make the ground of eviction available. As regards the last ground of eviction, the learned Rent Controller returned the finding that it is not a case of transferring the tenancy rights by petitioner No. 1 in favour of petitioners No. 2 and 3. Accordingly, the petition was dismissed.
5. Aggrieved by the same, an appeal was preferred by the respondent-landlord. The learned Appellate Authority concluded that the property had been sublet by petitioner No. 1 to petitioners No. 2 and 3 and with these findings passed an order of eviction.
6. Aggrieved by the same present revision petition has been filed.
7. The sole controversy thus raised was as to whether the property has been parted with to petitioners No. 2 and 3 by petitioner No. 1 or not or if the findings of the learned Appellate Authority in this regard can be sustained or not?
8. The learned counsel for the petitioners at the outset urged that before the learned Rent Controller, on behalf of the respondent-landlord, it had been conceded mat the ground of subletting is not proved and the argument was only addressed if the premises had been parted with by petitioners No. 1 to petitioners No. 2 and 3 and that the learned Appellate Authority fell into error in passing the order of eviction on the ground of subletting. In this regard, what is being asserted is correct. A perusal of the order passed by the learned Rent Controller revealed that it has specifically been recorded as under:-
'.....Learned counsel for the petitioner has at the very outset contended that he is not seeking eviction of the respondent on the ground of subletting but only on the ground of parting with possession. According to him, he has not been able to bring on record any evidence to prove that the tenancy rights have been parted with by respondent No. 1 in favour of respondents No. 2 and 3 for a valuable consideration ......'
9. This fact had not been shown to be wrongly recorded. In that view of the matter, inadvertently the learned Appellate Authority, indeed, fell into a grave error in passing the order of eviction on the ground of subletting which has been held in different paragraphs of the impugned judgment to be proved.
10. The concept of subletting and parting with possession are well known. They have different connotation. This court in the case of G.D. Chaudhary v. Shri Anand Samp 1966(2) The Delhi Law Times 28, clearly spelt out the definitions, of 'subletting' and 'parting with possession'. In paragraph 5 of the judgment, it was concluded as under:-
' .... I am of the opinion that so long as the lessee retains the legal possession of the whole of the premises he does not commit a breach of law against parting with the possession by allowing other people to use the same. I am supported in this view by Jackson v. Simons, Romer, J. held:'The defendant moreover retained the legal possession of the whole of the premises at all material times and, as pointed out by. Romer J. in Peebles v. Crosthwaite, a 'lessee who retains such possession does not commit a breach of a convenant against parting with possession by allowing other people to use the premises.......'
It was there held that a mere sharing the possession did not amount to parting with possession. It is said that if that be the position then why did the Legislature choose to use two different expressions, namely 'subletting' or 'parting with the possession'. The answer is furnished again by Romer, J. in the same decision when he say:
'Further, if the landlord has a convenient against both assigning and under-letting the tenant might by an agreement, neither assigning or under-letting, put another person in possession of the premises, and parting with the possession in that manner would not be a breach of those convenants.'
In any view a tenant cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part......'
11. A Division Bench of the Delhi High Court in the case of Hazari Lal and Ram Babu v. Shri Gian Ram and Ors. ,1972 Rent Control Reporter 74, also dealt with the same controversy and these expressions which occurred in the Delhi Rent Control Act, 1958, obviously having the same meaning, were succinctly, mean as under:-
'...... The expression 'parted with the possession' undoubtedly postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, parting with possession means giving possession to persons other than those to whom possession has been given by the lease and 'the parting with possession' must have been by the tenant. The mere user by other persons is not parting with possession so long as the tenant retains the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only or physical possession but also of the right to possession. So long as the tenant retains the right to claim, possession from his guest who does not pay him any rent or other consideration it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with the possession so long as, during his absence, tenant has a right to return to the premises and be in possession thereof.....'
12. In the subsequent decision in the case of Vishwa Nath and Anr. v. Chaman Lal Khanna and Ors. 1975 All India Rent Control Journal 514, Delhi High Court was again concerned with a tenant who had taken the premises on rent in his own name. He formed a Private Limited Company in which he has a controlling interest and was even the Managing Director. It was held that it could not be token to be parting with possession or subletting. The conclusions arrived were as under: -
'Vishwa Nath is in possession as Managing Director having a controlling interest in the company. No doubt he has let the Company into possession but he has not parted with the possession himself and so long as it is true in fact Vishwa Nath has not contravened the law. He has not gone out of possession. Possession has been retained by him. If he has allowed the company to use the premises while he himself has remained in possession of them as Managing Director and Chief Executive of the Company I cannot accede to the argument that he has parted with possession. He has not assigned nor has he sublet.'
13. It is abundantly clear from the aforesaid that while in the case of subletting, there ordinarily should be a relationship of landlord and tenant between the tenant and the sub-tenant or there should be a consideration that is being received by the tenant, but in the case of parting with possession, there has to be parting with legal possession. If the tenant retains the control or has the legal possession, in that event, merely because he starts another business is no ground to conclude that he ceases to be in legal possession. It has often been held that in case of parting with possession it is more onerous to prove than subletting.
14. In the eviction petition, the respondent had asserted that only Nanak Chand was the tenant in the property in question. In the written statement filed, the petitioners had taken up the plea that the suit property was taken on rent by all the petitioners for tyre and tube repairs and they were members of the Joint Hindu Family. They have a joint mess. It is petitioner No. 1, who being the eldest brother, managing all the works of the house and the business. In this process, though half-heartedly, it was stated that it is a joint tenancy but mainly it was contended that they all worked together. It has to be remembered that the pleadings had been construed objectively. The civil courts and the Courts of Rent Controller are not Courts of penal jurisdiction. These are Courts meant to do justice between the parties and, therefore, it has to be seen basically if petitioner No. 1 had parted with legal possession of the property or not.
15. The learned Appellate Authority had referred to seven circumstances so as to conclude that petitioner No. 1 had effaced himself from the property in dispute and in that process it is a case of subletting. He had noted the fact that it was only petitioner No. 1 who is the tenant in the property in dispute. It has also been held that the petitioner's claimed that they were having joint mess while it is proved that it is not so. He further recorded that it is not established that the petitioners were maintaining the accounts. No such account books have been produced. Adverse inferences have been drawn because Bal Kishan in cross examination had stated that he does not know as to who is the landlord of the other shop situate at Meerut Road, Karnal. No licence was stated to be separately obtained.
16. On all these counts, the findings as such can hardly be sustained. They can easily be described to be erroneous to return the finding that the premises in question had been parted with the petitioner No. 1 to petitioners No. 2 and 3.
17. the reasons are not far to fetch. Petitioner No. 1 as well as petitioners No. 2 and 3 are doing similar business or repair of tyre and tubes. When such is the situation, it cannot be termed that they are maintaining regular account which can be produced in the Court or relevant under Section 34 of the Evidence Act. Similarly, if petitioner No. 1 had opened another shop at Meerut Road, Karnal, as pointed out above, it is not to infer that he has ceased the legal possession of the disputed premises. This conclusion has necessarily to be so drawn because all the petitioners are brothers. A straight jacket formula cannot be drawn. But when they all are brothers and petitioner No. 1 had opened another shop, it is not proper to draw inference or presumption that he ceased to be in legal possession.
18. In that event, reliance was placed on the fact that even if some of the petitioners obtained a licence and are alleged to carry on the business, it cannot be termed that it is parting with the possession. Attention of the Court was drawn towards the decision of this Court in the case of Kishan Lal Vig v. Sunder Lal and Ors. 1987 Haryana Rent Reporter 710. In the cited case, the brother of the tenant was looking after the business of photography in the shop in dispute. The tenant himself was carrying on the business at a different place. The brother was stated to be assisting the tenant. It was held that it could not be taken that possession has been parted with. The principles cannot be disputed. One finds in respectful agreement with the said view. There is nothing to indicate that petitioner No. 1 ceased to be in legal possession and, therefore, the findings of the learned Appellate Authority cannot be sustained.
19. For these reasons, the revision petition is allowed and the impugned judgment is set aside. Instead, the eviction petition is dismissed.