Ishtiaq Husain and Others vs Smt. Krishna Devi

J.M.L. Sinha, J.—This is a Defendant''s second appeal arising out of the judgment and decree dated 16th February, 1966, passed by the First Additional Civil Judge, Moradabad, in Civil Appeal No. 173 of 1965.

The facts giving rise to this appeal, briefly stated, were as follows:

One Gulab Singh was originally the landlord and Mushtaq Husain was the tenant of the premises in suit. On the death of Gulab Singh the premises in suit, by a partition among his heirs, became the property of Smt. Krishna Devi, Plaintiff-Respondent. Mushtaq Husain, the original tenant, died and thereafter his two sons, Ishtiaq Husain and Ishaq Husain, Appellant Nos. 1 and 2, became the tenants thereof. In July 1961, Ishtiaq Husain and Ishaq Husain entered into a partnership with Ravendra Kumar, Appellant No. 3, for doing timber business in the shop. In 1964 Smt. Krishna Devi Sled a suit against the three Appellants for their eviction on the ground of sub-letting and of material alteration having been made in the premises in suit. The Appellants contested the suit. They denied that any material alteration has been done in this premises in suit. The fact that Appellant Nos. 1 and 2 had entered into a partnership with Appellant No. 3 was not denied, out it was pleaded on their behalf that the shop had not been sublet to the Appellant No. 3. It was further pleaded by the Appellant Nos. 1 and 2 that the Plaintiff-Respondent was not entitled to maintain the suit, that the suit was barred by Order 2, Rule 2, CPC and, in any case the partnership agreement came into existence with the consent of the Plaintiff-Respondent.

The trial court rejected the contentions raised on behalf of the Appellants about the maintainability of the suit by the Plaintiff-Respondent alone. The plea that the suit was barred by Order 2, Rule 2, CPC was also rejected. The trial court also did not accept that the Appellants had made any material alteration in the premises in suit. The trial court, however, accepted that the agreement between the Appellant Nos. 1 and 2 on the one side, and Appellant No. 3, on the other, executed in July, 1961, for doing partnership business in the premises in suit, amounted to subletting and on that ground decreed the suit. The Defendants went up in appeal before the learned District Judge, Moradabad. The learned Additional Civil Judge, who heard the appeal, however, concurred with the findings recorded by the trial court and dismissed the appeal. The Defendants have, accordingly, come up in second appeal before this Court.

Learned Counsel for the Appellants contended before me that the courts below have committed an illegality in coming to the conclusion, on the basis of the agreement dated July 15, 1961, that the premises in suit had been sub-let by Appellant Nos. 1 and 2 to Appellant No. 3.

On the perusal of the judgment of the lower appellate court 1 find that it has relied on a Division Bench decision, of this Court in the case of Radha Kishan v. Data Ram 1961 AWR 641 to conclude that the agreement executed between Appellants Nos. 1 and 2 on the one side and Appellant No. 3 on the other in the present case amounted to an agreement of sub-letting in the case of Radha Kishan v. Data Ram (supra) an agreement had taken place between Defendant No. 1, who was the original tenant of the shop, and Defendant No. 2 where by Defendant No. 1 took Defendant No. 2 as a partner by entering into a partnership agreement. One of the terms of the partnership agreement was as follows:

Yeh ki dukan haza tarikh imroza se baruya shirakatnama haza donon fariqain ki mushtarka kirayedari me mutsawwar hogi.

The Division Bench having taken the aforesaid condition of the agreement into account came to the conclusion that it amounted to lease or sub-lease. The Division Bench observed;

* * * *

In the case before me also one or the clauses in the partnership agreement stated that after the execution of the partnership agreement, the rent would be paid by the firm and the firm shall be the tenant of the premises in suit, This clause in the agreement executed between Appellant Nos. 1 and 2 on the one side and Appellant No. 3 on the other is akin to the condition of the partnership agreement referred to in the case of Radha Kishan v. Data Ram (supra). The rule laid down by this Court in that case was, therefore, clearly applicable to the present case.

Learned Counsel for the Appellants, however, invited my attention to another Division Bench decision of this Court in the case of Seth Lakshmi Chand v. Nathmal Dulichand 1965 AWR 663. In that case Nathmal and Duli Chand were the original tenants. They entered into a partnership with Sri Sriramfor doing business in the premises in suit. The question that arose in that case was whether it could be held that Nathmal and Duli Chand had sub-let the shop. On the facts of that case, the Division Bench held that it could not be held that sub-letting had taken place. Superficially looking, the rule laid down in the case of Lakshmi Chand v. Nathumal Dulichand (supra) supports the Appellants. But on a closer examination, I find that it is distinguishable on facts. It may be mentioned at the cost of repetition that in the case of Radha Kishan v. Data Ram (supra) one of the terms of the partnership agreement was that, after the execution of the partnership, the shop will be in the tenancy of both the partners. In other words, according fo the agreement executed between the Defendants in the case of Radha Kishan v. Data Ram, the Defendant had made another person a partner in the tenancy rights. As opposed to this, it does not appear from the decision of the case in Lakshmi Chand v. Duli Chand (supra) that in the agreement executed between Nathumal and Duli Chand, on the one side and Sri Sriram, on the other, there was any term making Sri Sriram a partner in the tenancy. I have already pointed out earlier that in the case before us also there was a term of agreement by which the firm, which included a third partner, namely, Ramendra Kumar, Appellant No. 3, was made a partner in the tenancy. It may not be out of place to add that the Division Bench in the case of Lakshmichand v. Nathumal Dulichand (supra) considered the case of Radha Kishan v. Data Ram (supra) but did not express any dissent with it.

I, accordingly, hold that the decision in the case of Seth Lakshmichand v. Nathumal Dulichand (supra) is distinguishable on facts and cannot be made use of in the present case.

Learned Counsel then referred us to a decision of the Supreme Court in the case of Murli Dhar v. Chuni Lal 1970 RCJ 922. In that case the shop was originally let out to a firm which consisted for Chunni Lal, Cherulal and Meghraj as partners. Sometime later the shop was used by a new firm of the name of Meghraj Bansidhar of which the partners were Meghraj of the original firm and two other persons. Two contentions were raised before the Supreme Court viz. (i) that the possession of the premises by the new firm proved sub-letting and (ii) Meghraj having entered the partnership with a stranger, there was a sub-letting to the new partnership. The first contention was rejected with the following observation:

* * * *

The second contention was rejected with the following observation:

* * * *

With the above observations, the Supreme Court rejected the contention raised on behalf of the landlord that the shop had been sublet. On a careful examination of the aforesaid case, however, I find that it is also distinguishable on facts. It does not appear from the report of the case that there was any evidence to show that Meghraj had made the other partners of the firm partners in the tenancy. The contention of the landlord was that an inference of sub-letting should be drawn merely on the basis of the shop being in the joint possession of the original tenant and two other persons. In the case before me the Plaintiff-Respondent did not rely merely on the basis of the Joint possession of the Appellants. He bat farther relied on that clause contained in the partnership agreement whereby Appellant Nos. 1 and 2 viz. the original tenants, made the partnership firm which included Ramendra Kumar Appellant No. 3 partner in the tenancy. The decision of the Supreme Court in the case of Murli Dhar v. Chunni Lal (supra) would not, therefore, apply to the present case. I, accordingly, conclude that the trial court rightly held that the shop had been sublet by the Appellant Nos. 1 and 2 to Appellant No. 3.

No other question of law having been raised before me on behalf of the Appellants, I find that this appeal has no force and must fail.

The appeal fails and is hereby dismissed.