Deep Chand vs Waqf Haji Khudabaksha and another

K. N. Seth, J.

In this revision by the defendant the only question involved is whether he is liable to ejectment on the ground that he had illegally sublet the premises in question. It is not in dispute that originally Raj Narain, father of defendant No. 1, was the tenant of the premises. A suit was brought against him for eviction on the ground that he had sublet the premises to Ramji Lal, defendant no 2. That suit was dismissed on the finding that Ramji Lal was a partner of Raj Narain and not a subtenant. Raj Narain died in October. 1974. Thereafter the present suit was filed seeking a decree for eviction on the ground that defendant No. 1 had sublet the premises to defendant No. 2. The suit was contested on the ground that defendant No. 2 was a partner of defendant no. 1 and that the plea of subletting was barred on the principle of res judicata. The trial court upheld the plea of the defendant. The revisional court decreed the plaintiffs suit holding that the premises had been sublet by defendant No. 1 to defendant No. 2. According to the defendantapplicant originally his father Raj Narain and defendant No. 2 were partners. The legal consequence was that the partnership came to an end on the death of Raj Narain. The tenancy righ s of Raj Narain were inherited by his son defendant No. 1. According to the defendantapplicant after the death of his father the partnership on the same terms and conditions continued between defendant No. 1 and defendant No. 2. Raj Narain died after the enforcement of U. P. Act No. 13 of 1972. Subsection (3) of Sec. 12 of U. P. Act No. 13 of 1972, provides that in the case of a nonresidential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. Even if the case set up by defendant No. 1 is accepted that in October, 1974 he and defendant No. 2 constituted a partnership on the death of Raj Narain, the legal effect would be that the tenant, i. e., defendant No. 1 shall be deemed to have ceased to occupy the building. Explanation (i) to Sec. 25 provides that where the tenant ceases, within the meaning of subsection (2) of Sec. 12, to occupy the building or any part thereof he shall be deemed to have sublet that building or part. It is thus obvious, assuming that the case set up by defendant No. 1 regarding partnership is correct, that by operation of law defendant no. 2 became the subtenant. Sec. 25 provides that no tenant shall sublet the whole of the building under his tenancy and that the tenant may with the permission in writing of the landlord and the District Magistrate sublet a part of the building. In the present case the tenancy consisted of a shop. The entire shop is deemed to have been sublet to defendant No. 2, which is not permissible under the Act. It was thus a case of illegal subletting which could be made a ground for a suit for eviction without the permission of the District Magistrate.

On facts the learned Additional District Judge has recorded a clear finding that the plea of partnership raised by the defendants was not established. According to the defendant it was an oral partnership. Defendant No. 2 did not appear in the witness box to support the plea of partnership. The plaintiff deposed that the business in the shop was carried on exclusively by defendant No. 2. No evidence was produced by defendant No. 1 relating to the business of partnership. He failed to produce the account books which could have shown that he shared the profits of the business with defendant No. 2. The rending recorded by the learned judge has not been shown to be vitiated by any error justifying interference by this Court. In my opinion the court below rightly decreed the plaintiff''s suit for eviction of the defendants.