Ajit Singh and Others vs Kamal Kishore and Others

V.K. Jhanji, J.—This is tenant''s civil revision against the order of the appellate authority ordering ejectment of the tenant from the premises in dispute.

Ram Rakha Mal was the orginal landlord-owner of the demised premises who let out the rented land to Jit Singh tenant at the rate of Rs. 1,800/- per annum vide rent note dated March 5, 1971. Under the rent note, the tenant was entitled to construct a building and instal machinery in the rented land but at the time of vacating it, he was to remove superstructure and the machinery. One other condition of the tenancy was that the tenant could not sub-let it to any one else Ram Rakha Mal transferred the property to Kamal Kishore and others vide registered gift deed dated January 19, 1973 and thus the relationship of landlord and tenant came into being between the parties to the present petition. Ejectment of the tenant was sought on the around that he had failed to pay the arrears of rent for the period April 1984 to July 31, 1984 amounting to Rs. 450/- and also that he was in arrears of house-tax from April 1, 1984 to July 31, 1984 amounting to Rs. 60. 75. The other ground on which ejectment of the tenant was sought was that the demised premises had been sub-let to the other respondents namely, Tara Singh, Bakhshish Singh and Jagdev Singh. It was also alleged in the petition that the tenant has shifted his own business at Ludhiana.

The petition was contested by Ajit Singh alias Jit Singh who denied the allegations made in the petition. He further took a stand that the demised premises are in his exclusive possession. He also set up a plea that he entered into partnership business with Tara Singh, Bakhshish Singh and Jagdev Singh, besides one Jangir Singh, Jaswant Singh and Devinder Singh with effect from April 22, 1971. On March 15,1982 the said Jangir Singh, Jaswant and Devinder Singh retired from the partnership firm and now the partnership business is being carried on by Ajit Singh (Jit Singh) with other respondents.

On September 4, 1983 i. e. on the first date of hearing, the tenant through his counsel, Mr. Viney Mittal, Advocate tendered the rent as claimed in the petition as. well as the arrears of house-tax, interest and the cost assessed by the learned Rent Controller. Thus, a a total sum of Rs. 591/- was tendered on that date. On behalf of the landlord, the tender was accepted under protest as it was claimed that the tender was inadequate and thus not valid.

On the pleadings of the parties following issues were framed by the learned Rent Controller :-

Whether the tender made by the respondent is a valid tender ? POPR.

Whether the respondent No. 1 has sub-let the plot in dispute to respondents No 2 to 4 ? If so, its effect ? OPA.

Relief.

The learned Rent Controller decided both the issues against the landlords and ejectment application was dismissed. Landlords preferred appeal before the appellate authority who decided both the issues in favour of the landlords and passed an order of ejectment. The tenant has preferred the present civil revision challenging the order of the learned appellate authority.

Learned counsel for the petitioner contended that on the first date of hearing arrears of rent as demanded by the landlords were tendered by the tenant and thus the order of the learned appellate authority on this score cannot be sustained. As regards the landlord''s plea of sub-letting, Mr. Mattewal, Senior Advocate, counsel for the petitioner contended that the petitioner has proved on the record the partnership deed entered into between the tenant and the other respondents which conclusively proves that there is a genuine partnership between the tenant and the so-called sub-tenants and thus the order of ejectment on the ground of sub-letting cannot be maintained.

On the other hand, learned counsel for the landlords submitted that by mistake the landlords mentioned the arrears of rent as Rs. 450/- whereas the rent due on the date of filing of the petition was Rs. 600/- and the tenant having not tendered the rent due, the order of ejectment was rightly passed by the learned appellate authority on the ground of non-payment of arrears of rent. With regard to sub-letting, he submitted that the tenant has failed to prove on the record that there was a genuine partnership between him and the sub-tenants.

After hearing the learned counsel for the parties and perusing the entire evidence on the record, I am of the view that the finding of the learned appellate authority on issue No. 1 cannot be sustained'' The appellate authority was of the view that on the date of ejectment application, the tenant was in arrears of rent for the period from April, 1984, to July 31, 1984 and these arrears of rent amounted to Rs. 600/- and since Rs. 450/- was tendered on the first date of hearing the tender was short by Rs. 150/-. It is true that the rent due on the first date of hearing was Rs. 600/- and the tenant tendered only a sum of Rs. 450/- but the landlords in their petition specifically claimed that the tenant is in arrears of rent amounting to Rs. 450/- and thus the tenant, on the basis of the averment made in the ejectment application, tendered the rent; No doubt, a sum of Rs. 450/- was erroneously mentioned but the tenant cannot be made to suffer on account of the mistake made by the landlords; The matter would have been different in case the landlords had only stated that the tenant was in arrears of rent with effect from April, 1984, to July, 1984 instead of mentioning that the rent due was Rs. 450/-. In that situation, if the tenant had tendered Rs. 450/- as rent, then certainly the tender could be said to be invalid. In this view of the matter, the order of the appellate authority on issue No. 1 cannot be sustained and the same is reversed.

The tenant, against the landlord''s plea of sub-letting, set up a case that the alleged sub-tenants, namely, Tara Singh, Bakhshish Singh and Jagdev Singh were in fact his partners in the business being run under the name and style of M/s. Onkar Diesel Motor Workshop, Dhanaula Road, Barnala. In order to prove this allegation, he proved on record the partnership deed dated, April 22, 1971 (Ex. RX). Under this partnership deed, the partnership business came into being with effect from April 1, 1971 which continued till the same was dissolved on March 15, 1982 when three partners, namely, Jangir Singh, Jaswant Singh and Devinder Singh left the partnership business on the dissolution of the partnership dated April 1, 1971. New partnership came into being vide partnership deed dated March 15, 1982. Under the new partnership, the business carried on by the erstwhile partners under the name and style of M/s. Onkar Diesel Motor Workshop was taken over by the remaining partners i. e. Ajit Singh, Tara Singh and Jagdev Singh. Under the old partnership, the share of the tenant in the partnership business was 17 paise and on dissolution, his share was reduced to 10 paise. Apart from producing the partnership deed, the tenant has not produced any other document to show that there was a genuine partnership between him and other respondents, namely, Tara Singh, Bakhshish Singh and Jagdev Singh. Ajit Singh when appeared as RW-3, admitted that his children are studying at Ludhiana and with regard to partnership business, he stated that he is performing only supervisory duties in the Barnala firm and no bill was issued by him. It is not denied that the partnership business is maintaining account books and is assessed to Income Tax. Petitioner failed to produce the account books as. well as record of the Income Tax Sales tax or any other authority to show that there was a genuine partnership between him and other respondents.

The learned appellate Authority, after going through the partnership deeds and, other evidence on record, came to the conclusion that partnership deed in this case is fake and consequently it raises a presumption of sub-tenancy in favour of Tara Singh, Bakhshish Singh and Jagdev Singh.

Learned counsel for the petitioner has not been able to show as to how this finding arrived at by the appellate authority is vitiated. Once the tenant in his written statement, took up the plea of partnership, then onus was on him to prove that there was a genuine partnership'' Petitioner having failed to prove the same, I find no ground to interfere in the finding of the learned appellate authority. The judgment of the Hon''ble Supreme Court in Helper Girdharbhaj v. Saiyed Mohd. 1987 (2) R.C.R. 124, is clearly distinguishable on the facts of the present case. In. Helper Girdharbhaj''s case, (supra) apart from the partnership deed, the tenant also produced in evidence the Sales-tax registration, other registration certificate and licences under the shops and Commercial Establishments Act and also the Income Tax returns and orders of assessment in order to prove that there was a gennine partnership between him and the so-called sub-tenants. However, in the present case, apart from the partnership deed, no other evidence was produced by the tenant.

The other argument of learned counsel for the petitioner that the landlord has failed to prove that the sub-letting was for consideration is also devoid of any merit. The plea of the tenant of partnership having been found to be unsatisfactory and unacceptable, an inference can easily be drawn that the sub-letting by the petitioner to the so-called sub-tenants was for monetary consideration.

Consequently, I find no substance in this civil revision which is hereby dismissed with costs.