Chanan Singh Chitti vs Darbara Singh and another

J.V. Gupta, J.—This is tenant''s petition against whom eviction order his been passed by the authorities below.

Shri Darbara Singh, landlord, filed the present ejectment application on 28th November, 1981, against the tenant Chanan Singh from the demised premises, i.e., the shop which was let out on a monthly rent of Rs. 30/- p m. It was alleged that the tenant Chanan Singh had sublet the premises to Shri k. K. Sharma, Proprietor, International Enterprises, 9 Cannaught Place, New Delhi (Respondent No. 2). Arrears of rent were also claimed from 1st April, 1978 up to date, but that ground is no more subsisting. In the written Statement, it was danied by the tenant Chanan Singh that he had sublet the demised premises to Respondent No. 2-Shri k. k. Sharma, as alleged, who had nothing to do with the said premises; that the former was, in fact, in possession of the premises and that he had not at all transferred his tenancy rights to the latter, as alleged. Shri K. K. Sharma, Respondent No. 2, filed his own Written Statement on the same averments. He pleaded that he was not in occupation of the demised premises as a sub-tenant, as alleged and that the possession of the entire shop has been with Chanan Singh, Respondent No. 1, for many years. Thus, the main controversy between the parties was as to whether Chanan Singh had sublet the premises to Shri K. K. Sharma, Proprietor, International Enterprises, or not It may be mentioned here that the tenant Chanan Singh was carrying on business on the demised premises under the name and style of Messrs. International Travels.

The learned Rent Controller found that Chanan Singh had sublet the demised premises in favour of Respondent No. 2, K. K. Sharma, without the written consent of the Petitioner. Consequently, eviction order was passed. In appeal, the learned Appellate Authority affirmed the said finding of the Rent Controller, and, thus, maintained the order of eviction. Aggrieved with that, the tenant has come up in revision.

Learned Counsel for the Petitioner-tenant contended that it has nowhere been proved nor has been found by either of the authorities below that the tenant Chanan Singh himself was carrying on his business under the name and style of M/s. International Enterprises. According to the learned Counsel, the tenant, Chanan Singh, produced in evidence the assessment orders for the Assessment Years 1978-79 to 1982-83 (Exs. R1 to R5) to show that he has been filing returns and paying income tax on his business. According to the learned Counsel, Chanan Singh is in occupation of the demised premises; that as he never parted with the same in favour of Respondent No. 2, K. K. Sharma, Proprietor, M/s. International Enterprises the question of subletting did not arise, and that merely entering into an arrangement with K. K. Sharma for doing business for him did not amount to subletting in any manner In support of his contention he referred to Smt. Krishnawanti v. Hans Raj 1975 R. C. J. 164 (S. C.). Smt. Shanti Devi v. Puran Chand (1975) 77 P. L. R. 654 and Sat Narain v. Raghbir Singh 1983 (1) R. C. R. 39.

On the other hand, learned Counsel for the Respondent-landlord submitted that on appreciation of the entire evidence, it has been concurrently found that Chanan Singh, tenant, has sublet the premises to K. K. Sharma, Respondent No. 2, and this being a finding of fact, could not be interfered with in revisional jurisdiction. He further submitted that the returns of income tax filed by the tenant (Chanan Singh) were fictitious and could not be believed because he never showed therein the salary of Rs. 500/- received by him from K. K. Sharma. According to the learned Counsel, K. K. Sharma admitted in answer to intero-gatories issued to him (Ex. A. 5) that he had been paying trade test, telephone, rent and salary of the staff to the tenant Chanan Singh. Thus, argued the learned Counsel, this admission by K. K. Sharm was itself sufficient to prove that he had been paying rent to Chanan Singh, and this clearly amounted to subletting. In addition to this, it is contended, the fact that the sign-board under the name of K. K. Sharma, Proprietor, International Enterprises, was hanging on the premises in dispute further proved that the tenant was only acting as an agent of K. K. Sharma, and not in his own right. Thus, argued the learned Counsel, from the admissions made both by Shri K. K. Sharma and Chanan Singh that he was getting salary and other charges, it has been rightly found by both the authorities below that the tenant had sublet the premises to K. K. Sharma, Proprietor of International Enterprises. The learned Counsel for the Respondent cited certain judgments to show that an admission is the conclusive evidence. He, in this behalf, referred to Union of India (UOI) Vs. Moksh Builders and Financiers Ltd. and Others,

I have heard the learned Counsel for the parties, and also gone through the relevant evidence on record. It has nowhere been found by cither of the authorities below that Chanan Singh was no more carrying on his business in the name of M/s. International Travels. What has weighed with the authorities below is that since the sign-board of business, as K. K. Sharma, International Enterprises was there on the demised premises, it proved that the same had been let out by Chanan Singh, tenant, to K. K. Sharma. The evidence led by the tenant that he has been running his own business in the name of M/s. International Travels for which he had been filing his income tax returns, and the assessment orders passed thereon (Exs. R1 to R5) for the assessment years 1978-79 to 1982-83, has not been discussed by the Appellate Authority nor has any finding been recorded that the tenant had ceased to do his own business under the name and style of M/s. International Travels. It is not the case of the landlord that Chanan Singh, tenant, was not in occupation of the premises, or that the same were in occupation of K. K. Sharma. The case set up by landlord is that since the tenant is carrying on the business under the name and style of M/s. International Enterprises, of which K. K. Sharma is the Proprietor, and, therefore, the tenant-Chanan Singh was his agent and carrying on his business, and, thus, it amounted to subletting. From this evidence, it could not be concluded that it amounted to subletting. So long a tenant is in occupation of the premises and does not part with the same, the question of subletting as such does not arise. For the purpose of subletting, parting with possession is a necessary ingredient, as held by the Supreme Court in Shmt. Krishnawanti''s case (supra) as well as in Shmt. Shanti Devi''s case (supra). In the latter judgment it was observed:

A lessee would be said to have sublet the property if he has transferred his rights under the lease and by delivering possession of the said property becomes a stranger, and has no right to have its possession restored to him. There can be no subletting without the lessee''s parting with the legal possession of the demised premises, the real test to determine sub-letting is whether the tenant has walked out of the demised premises and has handed over its exclusive possession and control to the sub-tenant. A tenant is entitled to use the demised property for any business he likes and if he takes someone as partner in his business, the partner does not get the right of tenancy and cannot claim the status of a tenant or sub-tenant. If the tenant takes someone as partner in his business, it cannot be treated as subletting of the premises to the partner.

Thus, in order to succeed, the landlord must prove that the tenant Chanan Singh was no more in occupation of the premises and the poses-sion was that of K. K. Sharma. This, the landlord has failed to prove by any cogent evidence. Even the authorities below have not given any finding in favour of the landlord in that regard. In somewhat similar situation, it was ruled by this Court in Sat Narain''s case (supra) that the tenant doing business of goods transport in the premises, and also working as a commission agent of another transport company and displaying sign-board of that company on the premises, did not tantamount to sub-letting. Thus, the whole approach of the authorities below in this behalf was wholly wrong, illegal, improper and misconceived. From the evidence on record and the findings arrived at by the authorities below, it could not be concluded that Chanan Singh had sublet the premises to K. K. Sharma because from the evidence it is amply proved that the premises are in occupation of the tenant Chanan Singh, and K. K. Sharma has nothing to do with the same as such. The mere fact that he is paying Rs. 500/- p.m. as salary to the tenant for doing his business, in addition to certain other charges, did not mean that the tenant has sublet the premises to K. K. Sharma. Since both the tanant, Chanan Singh, and K. K. Sharma are doing the same type of business, the tenant accepted to do the same on behalf of K. K. Sharma also, over the demised premises. But that by itself does not amount to subletting in any manner. Moreover, K. K. Sharma nowhere admitted that he was paying rent for the demised premises The question in the interrogatories (Ex. A5) was: "What is the term and condition agreed with Chanan Singh Chitti (tenant) ?

Ans. I told I will pay all expenses of office and Rs. 50/- net on each worker after paying all expenses on recruitment, such as Trade test, telephone, rent and salary of staff." From this admission, it could not be concluded that he was paying any rent for the demised premises to Chanan Singh, tenant. In any case, as observed earlier, so long as Chanan Singh carries on his own business, and is in occupation of the premises, having not parted with its possession in any manner ; and in addition there to, also accepts the agency business from K. K. Sharma and carries on his business over the demised premises, it could not be held that it amounts to subletting. In the present case, the necessary ingredient of subletting, viz., parting with the possession, has not been established by the landlord.

For the foregoing reasons, the petition succeeds, the eviction orders are set aside and the ejectment application is dismissed with no order as to costs.