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Arun Kumar Vs. Prakash Chand Gupta - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revision No. 82 of 2007
Judge
AppellantArun Kumar
RespondentPrakash Chand Gupta
Excerpt:
rajiv sharma, j. 1. petitioner has challenged the judgment dated 3.5.2007 passed by the appellate authority (ii), shimla in rent appeal no. 10-s/13 (b) of 05/03. 2. material facts necessary for the adjudication of this petition are that respondent-landlord (hereinafter referred to as ‘landlord’ for convenience sake) is the owner of shop no.1, lahauri market, building no. 142-145/1, lahauri market, lower bazar, shimla. he purchased this shop in the year 1980 by way of sale deed on 21.11.1990 ex.pw-8/a. petitioner-tenant, arun kumar, and proforma respondent-tenant, manohar lal were inducted as tenants in the shop in the year 1971. rent deed was entered between the landlord and tenants on 17.11.1971 vide ex.pw-8/b. the shop at that time was owned by faquir chand. the eviction of.....
Judgment:

RAJIV SHARMA, J.

1. Petitioner has challenged the judgment dated 3.5.2007 passed by the Appellate Authority (II), Shimla in Rent Appeal No. 10-S/13 (b) of 05/03.

2. Material facts necessary for the adjudication of this petition are that respondent-landlord (hereinafter referred to as ‘landlord’ for convenience sake) is the owner of shop No.1, Lahauri Market, building No. 142-145/1, Lahauri Market, Lower Bazar, Shimla. He purchased this shop in the year 1980 by way of sale deed on 21.11.1990 Ex.PW-8/A. Petitioner-tenant, Arun Kumar, and proforma respondent-tenant, Manohar Lal were inducted as tenants in the shop in the year 1971. Rent deed was entered between the landlord and tenants on 17.11.1971 vide Ex.PW-8/B. The shop at that time was owned by Faquir Chand. The eviction of the tenants was sought on the following grounds:

i) It is alleged that the tenants sublet the premises to M/s Vijay Crockery and Tent House and the tenants have parted with the possession. The possession was with Vijay Kumar and Sudershan Kumar, partners of the business concern M/s Vijay Crockery and Tent House.

ii) The tenants were in arrears of rent with effect from 1.12.1980.

iii) The sub-tenants were guilty of nuisance as they had been causing obstruction in the passage of the petitioner by keeping their merchandise on the passage.

3. The petition was contested by the tenants on the grounds of non-joinder, estoppel etc. It was alleged that the tenancy was created in the name of tenants and though Manohar Lal, tenant, joined Government service, but he never surrendered his tenancy rights. In the alternative, it was pleaded that the original rent note Ex.PW-8/B was never acted upon. The tenants have denied that the premises have been sublet. Tenant No.1, i.e. Manohar Lal, was in full control of the premises and it was denied that the tenants were in arrears of rent. A draft of Rs.648/- was sent by them to the landlord but the landlord neither enchased the draft nor returned the same. He did not issue any receipt, upon which a notice was issued to him, however, no reply was given to the notice. It was also denied that there had been any act of nuisance on the part of the tenants. As far as the alleged nuisance is concerned, an injunction suit was also pending in the civil court and in these circumstances, it was prayed that the petition deserves to be stayed under section 10 of the Code of Civil Procedure.

4. Landlord filed rejoinder to the reply filed by the tenants. Learned Rent Controller framed issues on 11.5.1993. He dismissed the petition on 30.9.2002. Thereafter the landlord preferred an appeal before the Appellate Authority (II), Shimla. He allowed the same on 3.5.2007. Hence, the present petition against the judgment dated 3.5.2007.

5. Mr. Bhupender Gupta, Senior Advocate has supported the order dated 30.9.2002 passed by the Rent Controller (3), Shimla. According to him, the landlord has failed to prove the ground of sub-letting by the tenants. He then argued that the tenants were not in arrears of rent. According to him, no nuisance has ever been caused by the tenants to the landlord by placing their merchandise on the passage.

6. Mr. G.C. Gupra, Senior Advocate has supported the judgment dated 3.5.2007 passed by the Appellate Authority (II), Shimla. According to him, the landlord has proved that the premises have been sublet by the tenants to Vijay Kumar and Sudershan Kumar. According to him, the tenants have not paid the arrears of rent with effect from 1.12.1980 and the sub-tenants were also guilty of nuisance.

7. I have heard the learned counsel for the parties and have gone through the records meticulously.

8. It is not in dispute that initially the premises were owned by Faquir Chand and the landlord has purchased the same on 21.11.1990 vide sale deed Ex.PW- 8/A. The premises were rented out to Manohar Lal and Arun Kumar as per Ex.PW-8/B on 17.11.1971. The partnership deed was prepared between Manohar Lal and Arun Kumar on 26.1.1972 whereby Manohar Lal was entitled to share of 55% and Arun Kumar Kumar was entitled to share of 45% vide Ex.PX. Second partnership deed was entered between Arun Kumar and Vijay Kumar on 1.4.1992 vide Ex.PY whereby the profits were to be shared in the ratio of 50:50.

9. Now, the Court will advert to the oral as well as documentary evidence led by the landlord and tenants.

10. PW-1 Ramesh Chand has produced the record of M/s Vijay Crockery and Tent House. He has brought copy of partnership deed 1972-73, according to which Arun Kumar had share of 55% and Manohar Lal 45%. In 1972- 73, income tax return was signed by Manohar Lal, as partner. Sh. Vijay Kumar has signed the income tax returns for the financial years 1975-76, 1976-77, 1977-78 and 1978-1979. The income tax returns pertaining to the financial year 1981-82 and 1983-84 were signed by Arun Kumar, as partner. The income tax return for the financial year 1982-83 was signed by Vijay Kumar. Similarly, the income tax returns for the financial year 1993-94 were signed by Vijay Kumar.

11. PW-2 Sanjay Verma has deposed that according to the record, in the year 1972-73, the assessee has filed with the department copy of partnership deed dated 26.1.1972. He has brought the original of the same. Photocopy of the same is Ex.PX. The assessee has also produced copy of partnership deed dated 1.4.1992 with the department vide Ex.PY. He further deposed that M/s Vijay Crockery and Tent House were registered in the year 1972. Alongwith application form, there was partnership deed also, according to which Manohar Lal and Arun Kumar were partners. He has also deposed that the firm paid the income tax after the date of recording his statement, i.e. 19.7.1998. He has also brought the income tax return for the year 1996-97, according to which, Vijay Kumar and Arun Kumar were the partners. In his cross-examination, he stated that Arun Kumar was partner and the income tax returns were being filed regularly in the name of firm.

12. According to Vimal Kumar, Vijay Kumar and Sudershan Kumar were running the business in the name and style of M/s Vijay Crockery and Tent House. They had been doing this business for the last 4-5 years. One of the partners, i.e. Manohar Lal joined service in the Bank in 1977-78. Thereafter he was posted at Chandigarh. Arun Kumar was running a shop at Shimla. He further stated that Sudershan Kumar and Vijay Kumar used to open and lock the premises. He had seen the business being run in the premises in the name and style of M/s Vijay Crockery and Tent House since 1972. He has seen Vijay Kumar running the shop for the year 5-6 years. According to him, initially, Manohar Lal and Arun Kumar were running the business in the name and style of M/s Vijay Crockery and Tent House. He has denied the suggestion that Vijay Kumar and Arun Kumar are doing the business.

13. Arun Kumar has deposed that the shop is being run by Vijay Kumar and Sudershan Kumar in the name and style of M/s Vijay Crockery and Tent House. He has not seen the tenants on the shop after 1989-90. The shop is opened by Vijay Kumar and Sudershan Kumar. Arun Kumar is running shop in Ganj Bazar since 1990. Manohar Lal has joined Bank’s service. He could not say in his cross-examination that who was sitting in the shop before 1990.

14. According to Megh Ram M/s Vijay Crockery and Tent House, Lower Bazar, Shimla was assessee with the Excise and Taxation Department since 4.2.1972. This firm was registered as SIM-111-2761 G.S.T. and SIM-CST-1071. According to the records, the same status was in existence till date. According to him, as per record, Manohar Lal was holder of Ration Depot of Upper Kaithu.

15. Landlord has appeared as PW-8. He has produced the sale deed Ex.PW-8/A on the basis of which shop was purchased by him from Faquir Chand in the year 1980. At that time, Arun Kumar and Manohar Lal were the tenants. He has produced the copy of the rent deed entered into between Arun Kumar, Manohar Lal and Faquir Chand vide Ex.PW-8/B. According to him, Manohar Lal joined service in the State Bank of India in the year 1974. Arun Kumar used to sit in the shop occasionally till 1989. Thereafter the shop was sub let to Vijay Kumar and Sudershan Kumar. This was done without his permission. Vijay Kumar and Sudershan Kumar were running the business in the name and style of M/s Vijay Crockery and Tent House. He stated that Arun Kumar was having his separate business at Kaithu and as of today he was running shop in Ganj Bazar. According to him, Manohar Lal and Arun Kumar had no concern with the business run in the shop and Vijay Kumar and Sudarshan Kumar were in possession and control of the business. They used to open and close the shop. The shop was let out to the tenants @ Rs.100/- per month. The tenants were also bound to pay Municipal taxes @ 8%. He has not received any rent after 8.12.1980. He has also deposed that the shop was sub let to M/s Vijay Crockery and Tent House and Sudershan and Vijay Kumar are causing obstruction in his passage by placing merchandise on the same. He had seen Vijay Kumar working in the shop since 1980 and Sudershan Kumar from 1985. Before 1980 Arun Kumar, Vijay Kumar and Des Raj were running the shop. He has admitted that he has not issued any written notice to the tenants and has received the draft issued to him in the year 1981, but he did not encash the draft. He has denied the suggestion that Arun Kumar used to open and close the shop. He has admitted in his cross-examination that at one side of the passage, he has constructed Almirah and on the other side there is Almirah of Electric Centre.

16. Tenants have produced 8 witnesses. RW-1 Rajinder Singh, Shop Inspector, has deposed that M/s Vijay Crockery and Tent House were registered under the Shops and Establishment Act, 1969 on 28.3.1977. Sh. Arun Kumar has been shown proprietor of the same. This entry is recorded till 1999-2000. In his cross-examination, he has admitted that at Sr. No. 1114, name of Arun Kumar has not been written as proprietor. He has also admitted that in the record, which he has brought, there is no separate column for proprietor. The entries are made on the basis of the application and it is not verified whether the applicant is proprietor or not.

17. RW-2 S.R. Rana has deposed that he has seen the shop being run in the name and style of M/s Vijay Crockery and Tent House for the last 18-20 years. The shop is situated in Lahori Market. He has seen Arun Kumar and Vijay Kumar working in the shop. According to him, there was no obstruction caused to the passage by the tenants. In his cross-examination, he has admitted that Manohar Lal was working in the bank for the last 15 years and Arun Kumar had been running the shop in Ganj Bazar. However, volunteered that he sits in the disputed premises. He further stated that Arun Kumar is running general provisional shop. According to him, Arun Kumar had no depot at Kaithu.

18. According to RW-3 Gian Chand Kashyap, the records of statement of account for the years 1972 to 1980 has been destroyed and he has issued certificate Ex.RW- 2/A to this effect.

19. RW-4 Yog Raj has deposed that Manohar Lal and Arun Kumar were running the shop. Manohar Lal left the business and thereafter he has seen Arun Kumar and Vijay Kumar doing the business. He has stated that Manohar Lal used to sit in the shop and thereafter he went to Chandigarh.

20. RW-5 Kapil Devi Sood has deposed that he has seen Arun Kumar and Vijay Kumar sitting in the shop. According to him, he knew Arun Kumar since 1971 but he has no relations with him. However, he has stated that Arun Kumar was brother of his brother-in-law. Arun Kumar was running general store in Ganj area for the last 8-10 years. He did not know whether Arun Kumar was running shop at Kaithu.

21. RW-6 Vijay Kumar has stated that the shop in question was taken on rent from Faquir Chand in the year 1971. He has stated that Manohar Lal has left the partnership in the year 1973 since he had joined the job in the State Bank of India. He further stated that the business in the premises was being run in the name and style of M/s Vijay Crockery and Tent House. He has also stated that he and Arun Kumar were partners of M/s Vijay Crockery and Tent House. He further stated that they were assessee of income tax qua their business firm. He further stated that the shop in question was being opened and closed by them. According to him, the accounts of this business were written at times by him and at times by Arun Kumar. A draft amounting to Rs.648/- was sent to the landlord but they did not receive any intimation. They were ready and willing to pay rent as per the admission made in the cross-examination. Sudershan Kumar is his brother and he was employed in the shop since 1974-75. The shop was registered under the Shop and Establishment Act and the shop was registered for the sales tax since 1972 as per sales tax No. 2781 and C.S.T. No. 1070 dated 7.2.1972. According to him, at times he and at times Arun Kumar sit in the shop and Sudershan, his brother, sits in the shop as employee. They used to pay rent to Faquir Chand @ Rs.125/- for godown and Rs.108/- for shop. He has denied that he premises were sub let. According to him, Arun Kumar as of today was running the shop. They have never stopped the passage of the shop. The salary paid to Sudarshan Kumar was entered in the accounts book, but he has not produced the salary accounts of his brother Sudarshan Kumar. He has admitted in his crossexamination that in the partnership made in the year 1972, Arun Kumar and Manohar Lal were the partners. Manohar Lal got employment in 1972-73. Arun Kumar has not been running business at Kaithu. Arun Kumar opened shop in Ganj Bazar in the year 1989. This shop is in exclusive possession of Arun Kumar. Arun Kumar is income tax assessee. He had been paying income tax since 1972-73 and in his income tax returns; he has shown the income tax of M/s Vijay Crockery and Tent House. According to him, he was partner since 1973 and he was also partner in the years 1996-97 of M/s Vijay Crockery and Tent House. He did not know that any dissolution deed was prepared when Manohar Lal had left the business. He was drawing salary @ Rs. 24,000/- per annum and Arun Kumar was drawing the salary of Rs.16,000/- per annum. The salary was being drawn in cash. Sudershan Kumar was being paid Rs. 30,000/- per annum. He has further admitted that the rent deed was made when the shop was taken on rent and the same was let out to Manohar Lal and Arun Kumar. However, he has stated that the rent deed was never acted upon. He could not disclose the month when he became partner. According to him, he was partner before Ex.PY dated 1.4.1992. He could not produce the copy of partnership deed of 1972, according to which, he became the partner. He could not produce any record to substantiate that he has shown in income tax returns his income from M/s Vijay Crockery and Tent House since 1972. He has denied that Arun Kumar and Manohar Lal have not paid the rent with effect from 1.12.1980. He has admitted that Manohar Lal has no concerned with the business. He has denied that Arun Kumar has also no concern with the business. He has denied the suggestion that the business was being run by him and Sudershan Kumar. According to him, Arun Kumar has written the accounts of the years 1973-74 and 1974-75. He volunteered that the accounts were written under his supervision.

22. RW-7 Sudershan Kumar has deposed that he was in service since 1975. According to him, his brother Vijay Kumar and Arun Kumar are sitting in the shop. The shop in question is being opened at times by Vijay Kumar and at times by Arun Kumar, however, most of the time the shop is opened by Arun Kumar. In his cross-examination, he has admitted that Arun Kumar has his shop in Ganj Bazar since 1992.

23. RW-8 Arun Sood has deposed that they were running the business in the premises under the name and style of M/s Vijay Crockery and Tent House from the very beginning. The shop was taken from Faquir Chand. He and Manohar Lal were the partners. Manohar Lal remained partner for one year. Thereafter he joined job in the State Bank of India. He and Vijay Kumar were the partners. He has stated that before he entered into partnership with Vijay Kumar, earlier partnership with Manohar Lal was dissolved. Sudershan Kumar was working as employee in the firm. He alongwith Vijay Kumar sits in the shop and Manohar Lal has also not surrendered his tenancy. Initially, accounts books were written by Manohar Lal and thereafter Vijay Kumar used to write the accounts books under his supervision. He has denied that he and Manohar Lal have sub let the premises. He has admitted that initially the rent deed was between him and his brother Manohar Lal, but added that the same was not acted upon. He has admitted that he is also running business in Anaj Mandi. He was the sole proprietor of the business concern. He has denied the suggestion that he had been running the business at Kaithu. He has stated that he has control over the same. However, in his further cross-examination, he has admitted that he was tenant in Kaithu and Mr. M.C. Kuthiala was the earlier owner and later on Anand Kuthiala became the owner. He has further admitted that eviction petition was filed against him and his eviction was ordered on the ground of “ceased to occupy”. He has admitted that no application has ever been moved before the Rent Controller to deposit the rent. Initially, he denied the suggestion that Madan Lal alone was the tenant, but volunteered that Madan Lal and he were the tenants.

24. What emerges from the evidence led by the parties is that initially Faquir Chand was the owner of the premises. Landlord has purchased the same vide sale deed Ex.PW-8/A on 21.11.1990. Rent deed was prepared between Faquir Chand and Arun Kumar and Manohar Lal vide Ex.PW-8/B. In Ex.PW-8/B, there is no recital about the shop, i.e. M/s Vijay Crockery and Tent House. The premises were let out to Manohar Lal and Arun Kumar. Manohar Lal has left the business and joined job in the State Bank of India somewhere in 1973-74. The partnership between Manohar Lal and Arun Kumar was prepared on 26.1.1972 vide Ex.PX. Second partnership deed was prepared between Vijay Kumar and Arun Kumar on 1.4.1992. It has come in the evidence that Arun Kumar is running separate provisional store in Ganj Bazar. His eviction was also ordered by the Rent Controller on the ground of “ceased to occupy”. Sh. Vimal Kumar has seen Vijay Kumar and Sudarshan Kumar running the business in the shop. According to Vimal Kumar, Arun Kumar was running shop in Ganj Bazar. Arun Kumar has deposed that Vijay Kumar and Sudarshan Kumar are opening and closing the shop since 1990. According to him, Arun Kumar was running business in Ganj Bazar since 1990. PW-8 has categorically deposed that the shop in question has been sub let by the tenants to Vijay Kumar and Sudarshan Kumar without his permission. He was entitled to rent @ Rs.800/- per month and the tenants were also bound to pay Municipal taxes @ 8%. According to him, the premises were in possession and control of Vijay Kumar and Sudarshan Kumar. RW-1 Rajinder Singh admitted in his cross-examination that at Sr. No. 1114, name of Arun Kumar has not been shown as proprietor. RW-2 S.R. Rana has also admitted that Arun Kumar is running shop in Ganj Bazar though volunteered that he still sits in M/s Vijay Crockery and Tent House. According to him, Arun Kumar was running provisional store in Ganj Bazar. According to RW-4 Dev Raj, Arun Kumar and Vijay Kumar were running the shop. RW-5 Kapil Dev Sood has admitted that Arun Kumar is running a shop in Ganj Bazar for the last 8-10 years. RW-6 Vijay Kumar has stated that his brother Sudarshan Kumar was working as employee on the salary of Rs.36,000/- per annum. He was drawing salary of Rs.24,000/- per annum and Arun Kumar was drawing salary of Rs.16,000/- per annum. According to him, initially the records were written for short duration by Arun Kumar and thereafter he had been writing the accounts of partnership firm under the supervision of Arun Kumar. According to him, he and Arun Kumar sit in the shop though he has claimed that he had been in the business since 1972 on the basis of partnership deed, but he could not produce the partnership deed. The partnership according to Ex.PY dated 1.4.1992 was entered between Arun Kumar and Vijay Kumar whereby they had share of profit in the ratio of 50:50. It is not believable that the brother will engage his younger brother as an employee of the firm, that too, on a partial salary of Rs.3,000/- per month. This is ploy adopted by the tenant to deny the ground of sub letting. The premises have been let out to Manohar Lal and Arun Kumar on the basis of rent note dated 17.11.1971. The partnership deed has only come into existence on 26.1.1972. The status of the landlord and the tenants was to be determined on the basis of rent note dated 17.11.1971 and not the partnership which has been subsequently made between Manohar Lal and Arun Kumar and thereafter Arun Kumar and Vijay Kumar. The parties were bound by rent note Ex.PW-8/B and the explanation given by the tenants that the same has not been acted will not advance their case. There is ample evidence on record to come to a conclusion that Manohar Lal has left the business after joining service in the State Bank of India. Though Arun Kumar has deposed that earlier firm was dissolved, but he has not produced any evidence to substantiate the same. Arun Kumar has also started his own business in Ganj Bazar in 1989. He has not produced any document to establish that while furnishing income tax returns, he has shown the income of Vijay Crockery and Tent House in the same. It has come in the evidence of the landlord that Vijay Kumar and Sudarshan Kumar were running the business and Arun Kumar and Manohar Lal had no concern with the business. The partnership deed, i.e. Ex.PY dated 1.4.1992 also correspond to the period when Arun Kumar has started running the business in Ganj Bazar. It is, thus, evident that the premises have been sub let to Vijay Kumar and Sudarshan Kumar by the tenants, i.e. Arun Kumar and Manohar Lal. In case Vijay Kumar was already carrying business in the suit premises as a partner, there was no need to prepare partnership deed on 1.4.1992 vide Ex.PY. Vijay Kumar has also not produced any partnership deed according to which he became the partner in the year 1972. There is no tangible evidence on record to establish that Arun Kumar had been writing the accounts books of M/s Vijay Crockery and Tent House after 1989-90.

25. It is evident from the oral as well as documentary evidence discussed hereinabove that Arun Kumar had already ceased to work from the suit premises and had shifted his business to Ganj Bazar. Manohar Lal had also joined the Bank Services. In view of this, the partnership deed had come to an end as far as the suit premises were concerned. Arun Kumar and Manohar Lal had parted with their legal possession in favour of Vijay Kumar and Sudarshan Kumar. It is evident after lifting the veil that the partnership was purportedly made by Arun Kumar and Manohar Lal, and Arun Kumar and Vijay Kumar to defeat and overreach the provisions of the Act. Thus, in these circumstances, it can safely be presumed that parting of possession by Arun Kumar and Manohar Lal was for consideration.

26. Mr. Bhupender Gupta, learned Senior Advocate has relied upon Haji P. Mammu Versus Abdurahiman Basha, 1987(2) RCR 8 whereby the Division Bench of Kerala High Court has held that the firm name is only a compendious way of describing the partners of firm. Their Lordships have further held that since the firm came in possession of partnership firm which included original tenants as well, it will not amount to sub-letting. Their Lordships have held as under (paras 4 and 8):-

“If the finding of the learned District Judge that Ext.B1 is a camouflage is not in accordance with law, it follows that we must regard the said document as evidence of partnership. That being the position it is obvious that persons who were original tenants of the respondent and who were in possession of the premises have entered into a transaction evidenced by Ext.B1 with petitioners 2 to 8 and a new partnership has come into existence. The property which was in possession of the original tenants thus continues in possession of all the partners of the new partnership firm which includes the original tenants as well. A learned single Judge of this Court has held in P.J. Jacob v. T.J. Jacob (1977 KLT. 224) the such a transaction does not bring about sublease to enable the landlord to seek eviction invoking S. 11(4)(i) of the Act. That decision has held the field for nearly 10 years. The learned single Judge has followed the judgment of the Madras High Court reported in A.I.R. 1954 Madras 182 between Gundalapalli Rangamannar Chetty and Desu Rangiah and Others. The learned single Judge while referring these cases to the Division Bench has observed that the correctness of the judgment of the learned single Judge reported in 1977 KLT 224 having been questioned, it was felt necessary to refer the cases to the Division Bench. It appears to us that this question need not detain us as the matter now stands concluded by the decision of the Supreme Court reported in A.I.R. 1986 SC. 1564 between M/S. Madras Bangalore Transport Company (West) and Inder Singh and Others. The very judgment of the Madras High Court reported in A.I.R. 1954 Madras 182 on which the learned single Judge of our Court has relied upon in the aforesaid decision has been affirmed by the Supreme Court. In a situation like this the Supreme Court has held that there would be no subletting of the premises. As the matter now stands concluded by the decision of the Supreme Court, the question of reconsidering the judgment of the learned single Judge does not arise. Following the said decision of the Supreme Court it has to be held that the case of sublease pleaded by the respondent-landlord has not been established.

It is no doubt true that the learned District Judge has come to the conclusion that as the business is being carried on by the partnership firm, the second proviso does not become applicable on the ground that the partnership is not a natural person. The answer to this question is to be found in the judgment of the Supreme Court earlier referred to and in particular the relevant observations in paragraph 5 of the judgment, which reads as follows:-

“The contention that the old firm and the new firm were different legal entities and therefore the occupation by the new firm amounted to subletting by the old firm was repelled by this Court with these observations:

“The contention is entirely without substance. A firm unless expressly provided for the purpose of any statute which is not the case here is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore occupation by a firm is the occupation by its partners. Here the firm have a common partner. Hence the occupation has been by one of the original tenants.”

“The submission that the entry of a stranger as partner of the new firm indicated that there was sub-letting was not also accepted and it was said:

“It seems to us that the point sought to be made was that when Meghraj was in possession as the partner of Meghraj Bansidhar, he was in possession of the shop in a capacity different from that in which he was in possession as a partner of Chini Lal Gherulal. This is clearly fallacious. Meghraj was in possession all through in his individual capacity. It is impossible to treat him as possessing one legal personality as member of one firm and another such personality as member of another firm.”

It is therefore clear that the finding of the learned District Judge that the firm is not a natural person is not correct. It is compendious name for all the partners of the firm. That being the position, the second proviso would be applicable to the partnership.”

27. However, in this case, the premises were let out to Arun Kumar and partnership firm was constituted in the year 1972. In case the veil is lifted from Exts. P-X and P-Y, it is discernible that the same has been constituted to avoid eviction on the ground of subletting the premises. It is open to the Court to lift the veil to see whether the partnership is genuine or mere a camouflage to defeat the provisions of law. In this case the rights of the parties are to be determined on the basis of rent note Ex.PW-8/B. Thus, this judgment shall not be applicable in the present lis.

28. Mr. Bhupender Gupta, learned Senior Advocate has also placed reliance on Jagan nath (Deceased) through LRs. Versus Chander Bhan and others, (1988) 3 SCC 57, wherein their Lordships of Hon’ble Supreme Court have held that the parting with possession must be by the tenant and it means giving possession to persons other than those to whom possession had been given by the lease. User by other person is not parting with possession so long as the tenant retains the legal possession himself. In this case, the tenancy was created in favour of Arun Kumar and Manohar Lal. Manohar Lal has left the partnership in 1974 and thereafter Arun Kumar has also shifted his business to Ganj Bazaar and the business was being run by Vijay Kumar and Sudershan Kumar after parting possession by Arun Kumar and Manohar Lal. Their Lordships of Hon’ble Supreme Court have held as under (para 6):-

“The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant, user by other person 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 of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession. This court in Smt. Krishnawati v. Hans Raj, (1974) 1 SCC 289 : (AIR 1974 SC 280) had occasion to discuss the same aspect of the matter. There two persons lived in a house as husband and wife and one of them who rented the premises allowed the other to carry on business in a part of it. The question was whether it amounted to sub-letting and attracted the provisions of sub-section (4) of Section 14 of the Delhi Rent Control Act. This Court held that if two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence a rash inference to draw that the owner has let out that part of the premises. In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of Section 14(1)(b) of the Act.”

29. The learned single Judge of this Court in Ram Saran versus Pyare Lal and another, 1993 (1) Sim. L.C. 406 has held that in order to prove the sub-letting, the landlord has to establish that the tenant has parted with the legal possession of the premises in favour of the subtenant. In this case there is ample evidence as discussed above that the original tenants Arun Kumar and Manohar Lal have parted with their legal possession and the premises have been handed over to Vijay Kumar and Sudershan Kumar.

30. The learned single Judge of Punjab and Haryana High Court in Summat Prashad Jain Versus Murari Lal Jain and others, 2000(1) RCR 386 has held that partnership is nothing but an association of persons and if a tenant forms a partnership and retains legal control and possession, then it will not be termed as a case of subletting. In this case, the parties were governed by rent note Ex.PW-8/B and there is no mentioning of the tenants forming partnership. One of the sub-lettees, i.e. Vijay Kumar has claimed that he also became partner in 1972, but no contemporaneous record was placed on record. Rather, the partnership was constituted in 1994 between Vijay Kumar and Arun Kumar, but by that time Arun Kumar had already shifted his business to Ganj Bazaar. It is also true that partnership can be founded by the tenant, but it must be genuine and not a cloak to defeat the provisions of law.

31. Their Lordships of Hon’ble Supreme Court in Kala and another Versus Madho Parshad Vaidya, (1998) 6 SCC 573 that the burden of proof of parting with the possession in favour of a third party lies on landlord. Once the landlord discharges the initial burden, onus shifts on tenant to explain. In this case, the landlord has amply proved that the tenants have parted their possession in favour of Vijay Kumar and Sudershan Kumar.

32. Their Lordships of Hon’ble Supreme Court in Amar Nath Agarwalla Versus Dhillon Transport Agency, (2007) 4 SCC 306 have held that since one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm, it will not amount to subletting and thus, the legal possession is retained by a partner who is one of the original tenants. This judgment of the Hon’ble Supreme Court is distinguishable. In the instant case the partnership firm was never tenant. The tenants were Arun Kumar and Manohar Lal. In case the tenancy has been created in favour of partnership firm, it could not have made any difference if one of the partners leaves the partnership firm and new partner joins since the possession of one of the tenants will continue who was member of the partnership deed to whom premises were let out. However, in this case, the case primarily hinges on the interpretation of rent deed and one of the partners had joined the Bank services and another had shifted his business to Ganj Bazar.

33. Mr. G.C. Gupta, learned Senior Advocate representing the respondent has relied upon Hem Raj versus Basta Singh and another, 1986 Sim. L.C. 22. In this case also, the plea of partnership was taken. The learned single Judge has held as under (paras 12 and 13):-

“The partnership deed next provides that accounts of the partnership business would be maintained and kept at all the three premises for inspection by either partner. No such accounts, however, were admittedly maintained. One could appreciate this omission in case both the tenants were actually attending to the partnership business in which case they could be presumed to be knowing the actual state of affairs and dividing the profits and losses regularly. In the instant case, however, when admittedly neither partner was taking interest in the running of the business, one fails to appreciate as to how they could know about the profits and looses of the business in the absence of any accounts.

Again, in terms of the partnership deed, the partners were to divide the profits and losses between them every month. The sharing of profits and losses between the partners is in fact one of the essential ingredients of partnership. In the instant case we find that neither any account of such profits and losses was maintained nor the same were ever divided between the alleged partners.”

34. The learned single Judge of Punjab and Haryana High Court in Amar Pal and others Vs. Anand Swaroop and others, 1987(1) RLR 221 has held that the partnership firm in which the tenant shown as one of the partners not genuine one, the premises in occupation of the firm in which the tenant has no interest will amount to subletting. The learned single Judge has held as under (para 6):-

“After hearing the learned counsel for the parties and going through the relevant evidence on the record, I do not find any merit in this petition. The tenants have not produced any other assessment order of the Income-Tax Department except for the year 1980-81 Exhibit R.2. Surprisingly enough the tenants never produced the accounts of the partnership firm. Amar Pal tenant has appeared as RW.5. In his cross-examination, he has stated that “I cannot tell orally that with how much capital I started the business of M/s. Raj Kumar-Sunil Kumar. I cannot tell whether I contributed any money. I never appeared in the office of the Income-Tax Officer and Sales-Tax Department.” Raj Kumar one of the partners also appeared as RW.6. He has categorically stated in his cross-examination that “I have no acquaintance with Amar Pal before starting the business. Amar Pal has no right to operate the accounts of the Bank”. He has further stated that Amar Pal only contributed Rs.1,000 in the partnership whereas he has invested Rs.25,000 and thus have 50% share of the partnership. His son contributed Rs.2,000 and thus has 15% share whereas his daughter-in-law invested Rs.2,500 and has got 20% share. Thus from the over all evidence on the record, it has been concurrently found by both the authorities below that the partnership was not a genuine one and Amar Pal tenant has sub-let the premises to the firm M/s. Raj Kumar-Sunil Kumar, which is in occupation of the premises in dispute. On the facts and circumstances of the case, I do not find any illegality or impropriety I the said concurrent finding.”

35. In a similar case where one of the partner of the partnership firm was tenant, the learned single Judge of Delhi High Court in New India Traders and others Versus Satish Swarup Gupta, 1988 (2) RLR 379 has held as under (para 7):-

“In the present case, possession of appellant no.3 is admitted by the tenant (appellant no.2), but as a partner. The onus to prove that the tenant had not parted with legal possession of the premises lay entirely on the tenant because he had admitted the possession of the alleged subtenant. Both the courts below have ordered eviction on the ground of sub-letting because the tenant failed to prove the partnership. The appellants have all through-out maintained that the partnership deed was executed and registered in the year 1981. Since the main case of the respondent landlord was that the partnership was sham and it was constituted only to avoid eviction, the best evidence that the appellant could have produced, would have been the document or partnership deed itself. It appears that thought the appellants had produced the income-tax assessment orders for the years 1982-83, 1983-84 and 1984-85 before the Additional Rent Controller, the partnership deed, account books and other documents were not produced. These documents would have indicated how the profits were to be shared by the partners as also the nature and genuineness of partnership. Though, the income-tax assessment orders show appellants 2 and 3 as partners, these orders do not indicate the nature of the partnership between them. No explanation is however forthcoming as to why the partnership deed was not produced before the Additional Rent Controller. No doubt, a partnership can be formed by oral agreement as well but once it was admitted that the partnership document was reduced in writing it had to be placed on record. If the party on whom the onus lies fails to produce the written document in his possession, adverse inference can be drawn. I find that there is concurrent finding arrived at by both the courts below on the basis of the evidence on record that though appellant no.3 was in possession since 1978-79, at the time of filing of the eviction petition there was no partnership in existence and in order to avoid passing of the eviction order, a sham partnership was constituted. It appears that the admitted case of the appellants is that the partnership deed was executed and registered on 4th May 1981 i.e. after the suit for eviction was filed by the respondent-landlord. There is nothing on record to show in what capacity appellant no.3 was in possession before that date. The appellants have not pleaded oral partnership before that date nor have they filed any document to show that they were carrying on the business partnership from the premises even prior to the execution of the partnership deed on 4th May, 1981. Account books, Bank Statements, various licences obtained by the alleged partnership firm before that date would have proved that the partnership was in existence even before 1981 and that the same is genuine. Now, even the income-tax assessment orders are for 1982-83 onwards and not prior to 1981.”

36. In this case also, the tenants have not proved how the profits were used to be shared.

37. The learned single Judge of Punjab and Haryana High Court has held in Kesar Chand and Anr. Vs. Lachhman Singh, 2005 (1) Civil CourtCases 687 that once the tenant has parted with exclusive possession of a tenanted premises then a reasonable inference arises with regard to consideration and payment of rent. The learned single Judge has further held that such an agreement between tenant and sub-tenant is always a secret arrangement executed at the back of landlord. The learned single Judge has held as under (para 6):-

“After hearing the learned counsel for the parties, I am of the considered view that the concurrent findings of facts recorded by both the Courts below show that tenant-petitioner No.1 has handed over the demised shop to his brother sub-tenant-petitioner No.2 Ruldu Ram without the consent of the landlord-respondent. There is no stipulation I the rent note showing that tenancy was created in favour of tenant-petitioner No.1 and sub-tenant-petitioner No.2. It has further been established that tenant-petitioner No.1 in fact is running another shop known as Pappu Cycle Stores and has parted with exclusive possession of the demised shop. It is well settled that once the tenant has parted with exclusive possession of a tenanted premises then a reasonable inference arises with regard to consideration and the payment of rent. Such like agreement between tenant-petitioner No.1 and sub-tenant-petitioner No.2 is always a secret arrangement executed at the back of the landlord-respondent. There is cogent evidence on record to sustain the findings and it cannot be said that the view taken by the Courts below suffers from such a perversity that no reasonable person would take the aforementioned view or that it is not based on any evidence. Therefore, the findings recorded by the Courts below do not warrant interference by this Court in the exercise of its revisional jurisdiction under Section 15(5) of the Act.”

38. The learned single Judge of Punjab and Haryana High Court in Jai Lal Jangra Vs. Vishav Karama Mandir Dharamshala, Ganaur Mandi, 2005(1) Civil Court Cases (PandH) has held that when a person other than tenant is in exclusive possession of shop, in such a situation consideration between tenant and sub-tenant can validly be drawn. The learned single Judge has held as under (para 8):-

“After hearing learned counsel for the parties, I am of the considered view that the instant petition is absolutely misconceived. The sub-tenant-petitioner has himself admitted that the tenant-respondent 2 was a tenant and he has been in exclusive possession of the demised shop as he claimed himself to be tenant under the landlord-respondent 1. It is not the case of the sub-tenant-petitioner that he is not in possession when he claims to be a tenant and under landlord-respondent 1. Once the exclusive possession has been established as a fact by the oral statement made by AW-1 Mauji Ram and AW-2 Hukam Chand along with the admission of the sub-tenant-petitioner, then the consideration between tenant-respondent 2 and sub-tenant-petitioner is a matter of inference as it is a clandestine affair which is executed at the back of a learned counsel. It is well settled that such an inference cold validly be drawn. For the aforementioned view reliance could be placed on two judgments of the Supreme Court in the cases of Rajbir Kaur v. Chokesiri and Co. 1989(1) SCC 19 and United Bank of India v. Cooks and Kelvey Properties (P) Ltd., 1994(5)SCC 9. Similar view has been taken by the Supreme Court in the case of Bharat Sales Ltd. v. LIC of India, 1998(3) SCC 1 : 1998(2) Civil Court Cases 97 (S.C.) : 1998(1) Apex Court Journal 494 (S.C.) which reads as under:-

“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, 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 over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out had put some other person into possession of that property. In such a situation, it would be difficult 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 difficult 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 sublet or it may 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 affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession of infer that the premises were let out.”

39. While interpreting Section 14 of the H.P. Urban Rent Control Act, 1971, their Lordships of Hon’ble Supreme Court in Ram Saran Versus Pyare Lal and another, (1996) 11 SCC 728 have held that in a case when show room was let out to the respondent in his personal capacity, however, later on a registered society was formed comprising of a number of family members of the respondent-tenant and the rent paid by the society through its President amount to subletting. Their Lordships have further held that in the circumstances of the case, a case of subletting without consent of the landlord was established. Their Lordships have also held that mere acceptance of rent tendered by the respondent in the name of the society will not create a new tenancy of a valid sub-tenancy. Their Lordships of the Hon’ble Supreme Court have held as under (paras 21 to 25):-

“It is an admitted position that the said registered society has been carrying on its diverse activities in the said shop room. At the relevant time, respondent No.1 was the President of the said registered society and therefore had occasion to control and regulate the activities of the said society. It appears that the aforesaid fact of regulating the activities of the said society by the respondent No.1 in his capacity as the President of the said society, has weighed with the learned Appellate Authority in coming to the finding that the said respondent No.1 had retained his possession of the said shop room. But, in our view, the Appellate Authority has failed to notice that the registered society is a distinct legal entity, its assets and liabilities belong to the said society which can sue and be sued in its name. The learned Rent Controller has rightly indicated that from the memorandum of association of the said registered society, which has been exhibited in the eviction case, it clearly transpires that any member may be removed and new members may be taken in the society by the decision of 2/3rd majority of members. It is, therefore, not unlikely that in course of time, the respondent No.1 or their family members may not be members of the said registered society and such society may be run by a completely different group of persons. It is therefore immaterial whether at the time of trial of the eviction proceedings, the respondent No.1 had been controlling the affairs of the said registered society in his capacity as its President.

It may be indicated here that it is not the case of the respondent No.1 that the said registered society has allowed to possess the tenanted premises for carrying on its diverse activities only as a licencee of the respondent No.1 or of the said firm Ashoka Jain Industries. On the contrary, the specific case made out by the respondent No.1 in his written statement is that the firm Ashoka Jain Industries has been changed to the registered society in the name of Mahavir Gram Udyog Samiti and the said society is occupying the tenanted premises and carrying on its various activities from the said premises by asserting its independent right as a tenant. As a matter of fact, the respondent No.1 has averred in the written statement that the said registered society has been paying rent for the tenanted premises not on behalf of the respondent No.1 or the said Ashoka Jain Industries but on its own behalf through its President, namely the respondent No.1. On account of such assertion of independent status of tenancy by the said registered society, a case was sought to be made out by the respondent No.1 that the landlord having accepted rent tendered in the name of the said registered society is estopped from seeking eviction of the respondent No.1 and the said society on the ground of sub-letting.

It appears to us that the respondent No.1 in an attempt to show that he had completely parted with possession of the said shop room in favour of the registered society also stated that he had been carrying on his soap business in the said premises. Such case, in our view, should not be accepted. The respondent No.1 has clearly stated in the written statement that the firm Ashoka Jain Industries was changed to a registered society and the said registered society is carrying on its activities in the shop room by asserting its status as a tenant. The activities of the registered society cannot be held to be personal activities of the respondent No.1 or the alleged partnership business of the firm Ashoka Jain Industries. Even if it is assumed on the face value of the assertion of the respondent No.1 that he is also carrying on his soap business in the disputed premises, in the context of the written statement of the respondent No.1, it only follows that the said registered society is possessing the tenanted premises by asserting its independent status as tenant by tendering rent in its own name through its President and the said respondent No.1 is in permissive possession under the said society in a portion of the tenanted premises for carrying on his personal business of soap. In any event, it is quite evident from the case made out by the respondent No.1 in the written statement that he has surrendered his right of tenancy in favour of the registered society and has delivered exclusive possession of the tenanted premises in favour of the said registered society which is occupying the same by asserting a right of tenancy. Hence, a case of lease without the written consent of landlord as required under Section 14 of the Rent Act for creating a valid assignment of sub-tenancy has been clearly established. Unfortunately, such position in law which is apparent from the case made out by the respondent No.1 has been lost sight of both by the learned Appellate Authority and by the High Court.

So far as payment of rent by respondent No.1 qua President of the said registered society and acceptance of such rent tendered on behalf of the registered society by the landlord with knowledge of the possession of the said shop room by the said society are concerned, it may be stated that the tenancy of respondent No.1 had not been surrendered and such surrender of tenancy has not been accepted by the landlord. If upon accepting the surrender of tenancy of the said tenant, occupation of a new tenant is acknowledged by the landlord by accepting payment of rent from the new tenant, they by such payment and acceptance of rent between the tenant and landlord, a new tenancy may be created. By a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, neither a new tenancy or a valid sub-tenancy in favour of the said registered society has been created. In this connection, reference may be made to a decision of this Court in Hiralal Kapur v. Prabhu Choudhury, (1988) 2 SCC 172 : (AIR 1988 SC 852). In the said case rent was paid by two cheques, one drawn by the tenant himself for a part of the rent, the other was drawn by the sub-tenant for the remaining part of the rent. It has been held by this Court that the landlord was entitled to rent (Rs.600/- p.m.) and so long he got this amount, it was immaterial for him whether the amount was paid in lump sum or by one cheque or more than one cheque and who the makers of the cheque were. In that case, a number of cheques given to the landlord were returned dishonoured and the landlord wrote to the tenant in which he specifically referred that five cheques were given by the sublessee. Even then, it has been held by this Court that such fact will not improve tenant's position at all for it only evidences the fact that the landlord was receiving the cheque issued in the name of the sub-lessee in discharge of the tenant's obligation to pay rent for the tenanted premises.

The Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy. Under Section 14 of the Rent Act, mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, will not create a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. It is nobody's case that the landlord has given any written consent for induction of sub-tenant. There is no estoppel against statute. Hence, even if the landlord has accepted payment of rent for the disputed premises from the said society, such acceptance of rent will not constitute legal and valid sub-tenancy in favour of the registered society. Consequently, landlord will not be estopped from claiming eviction of unauthorised sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority.”

40. In this case, the rent note was entered into between the landlord and the tenants and the partnership has been subsequently formed in the year 1972 only to avoid eviction. The mere fact that the partnership firm had been paying the rent and the rent was accepted by the landlord, will not take away the case from the ambit of subletting.

41. The Apex Court in Parvinder Singh Versus Renu Gautam and others, (2004) 4 SCC 794 has held that in case the partnership was entered into by the tenant, the veil can be lifted of partnership to see whether the tenant has parted with user and control of tenancy premises and deed of partnership has been drawn up as an indirect method of collecting consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permissible by law. Their Lordships have held as under (paras 8 and 9):-

“The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction, Once such ground , most common In all the legislations, is subletting or parting with possession of the tenancy premises by the tenant, Rent Control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or/or providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant. A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers, Quite often partnership is entered into between the members of any family m a part of tax planning, There is no stranger brought on the premises, So long as the premises remain In occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against subletting or parting with possession, This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy, There are cases where in the tenant sublets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction, Tyagaraja v. Vedathanni, AIR 1936 PC 70 is an authority for the proposition that oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different. A lease of immovable property is transfer of a right to enjoy such property. Parting with possession or control over the tenancy premises by tenant in favour of a third person would amount to the tenant having 'transferred his right under the lease' within the meaning of Section 14(2)(ii)(a) of the Act.”

42. Their Lordships of Hon’ble Supreme Court in Joginder Singh Sodhi Versus Amar Kaur, (2005) 1 SCC 31 have held that proof of monetary consideration by the sub-tenant to the tenant is not a sine qua non to establish subletting and once the landlord discharges the burden of proof of subletting by parting of possession by the tenant to a 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. In the instant case also, Shri Vijay Kumar and Sudershan Kumar are strangers to the landlord as they were never inducted as tenants by the landlord. Their Lordships of the Hon’ble Supreme Court have held as under (paras 16, 19, 20 and 23):-

“The contention of the learned counsel for the appellant, however, is that even if it is assumed that one of the ingredients of sub-letting was established, the second ingredient, namely, parting of possession with "monetary consideration" was not established. The counsel urged that there is no evidence on record that any amount was paid either in cash or in kind by Respondent 2 to Respondent 1. In the absence of such evidence subtenancy cannot be said to be established and the landlady was not entitled to get an order of eviction against the tenant.

Again in Kala v. Madho Parshad Vaidya this Court reiterated the same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to a 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.

We are in agreement with the observations in the above cases. In our considered opinion, proof of monetary consideration by the sub-tenant to the tenant is not a sine qua non to establish sub-letting.

Reference in this connection may be made to a decision of this Court in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta. In that case, a finding was recorded by the trial court that the tenant had sub-let the premises to his brother without the consent of the landlord and accordingly an order of eviction was passed. The High Court, however, took a different view observing that the socalled sub-tenant was brother of the tenant and hence it was a case of licensee and not of sub-tenant. When the matter came to this Court, setting aside the order passed by the High Court, this Court observed that there was "absolutely no warrant" for the reasoning which weighed with the High Court. The tenant was not occupying the property and had already shifted his residence to other place. It was, therefore, a clear case of sub-letting. This Court, in the circumstances, allowed the appeal of the landlord and passed an order of eviction.”

43. In the latest judgment Celina Coelho Pereria and Ors. V. Ulhas Mahabaleshwar Kholkar and Ors., AIR 2010 SC 603, their Lordships of the Hon’ble Supreme Court have held that a transaction such as sub-letting by tenant which is not permissible under lease may be outwardly a deceptive arrangement and landlord may not come to know of true facts. Their Lordships have further held that if the purpose of constituting partnership by the tenant is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting in a given case, the Court may be required to tear the veil of partnership to find out the real nature of transaction entered into by the tenant and in such circumstances the evidence let in by the landlord cannot be ignored on the ground that there is some variance between pleading and proof. Their Lordships have held as under (paras 28, 29 and 30):-

“The legal position that emerges from the aforesaid decisions can be summarised thus:

(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

The main question that falIs to be determined in the present case is: is High Court justified in non-suiting the landlord on the ground that he has not pleaded that business of the firm M/s. Mandovi Tours and Travels is not conducted by its partners, but by Balaji Lawande and Netravalkar and that tenant has parted with the premises by subletting the same to these two persons under the garb of deed of partnership by constituting a bogus firm? In our judgment, the answer have to be in negative. In the plaint, the landlord averred that the tenant has sub-let the premises to M/s. Mandovi Tours and Travels, a partnership concern, without his permission and that the sub-lessee has been exclusively running the business in the rented premises although he has not pleaded specifically that the premises have been sublet to Balaji Lawande and Netravalkar but such lack of pleading cannot be held to be fatal. It has to be kept in mind that a transaction such as sub-letting by tenant which is not permissible under lease may be outwardly a deceptive arrangement and landlord may not come to know of true facts. The pleadings in such matters ought not to be construed too technically. The true test, as has been repeatedly said, is to see whether the other side has been taken by surprise or prejudiced. If the purpose of constituting partnership by the tenant is ostensible and a deed of partnership is drawn to conceal the real transaction of subletting in a given case, the court may be required to tear the veil of partnership to find out the real nature of transaction entered into by the tenant and in such circumstances the evidence let in by the landlord cannot be ignored on the ground that there is some variance between pleading and proof. In a case such as the present one, the rule of secundum allegata et probate is not strictly applicable as the tenant cannot be said to have been put to any prejudice.”

44. The landlord has amply proved that the premises have been sub-let by the original tenants to Shri Vijay Kumar and Sudershan Kumar and there is a presumption which has not been rebutted by the tenants that the same is for consideration.

45. Consequently, the findings recorded by the appellate authority that the premises have been sub let by Arun Kumar and Manohar Lal to Vijay Kumar and Sudarshan Kumar are upheld.

46. Now, as far as the question of arrears of rent to the landlord by the tenants with effect from 1.12.1980 is concerned, the tenants have not led any evidence that the rent was paid by them with effect from 1.12.1980. A draft of Rs.648/- was sent to the landlord, which was not encashed by him. It has come in the evidence that no application was ever moved by the tenants before the Rent Controller to deposit the rent. It was necessary for the tenants to prove by leading tangible evidence that the rent has been paid. There is no evidence to this effect led by the tenants. Rather, it has come in the statements of the tenants that they were ready and willing to pay the rent. Thus, the findings recorded by the Appellate Authority that the tenants were in arrears of rent with effect from 1.12.1980 are also upheld.

47. The landlord has not led any cogent evidence to establish the nuisance being caused by the tenants in the suit premises, as such; the findings recorded by the Appellate Authority on this ground are also upheld.

48. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs.


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