Shanker Lal vs Ganesh Mal and Others

Dr. Vineet Kothari, J.—1. The defendant-appellant, Shanker Lal son of Prem Chand Jain has filed the present second appeal in this Court under Section 100 CPC on 9/5/2005 being aggrieved by the concurrent decree of eviction by the two courts below, inter alia, on the ground of material alteration and sub-letting.

The findings of the learned courts below giving eviction decree in the Suit No. 59/95 (37/81) and Appeal No. 7/96 are reproduced hereunder for ready reference:--

Findings of the trial court from the order dated 25/1/96:--

Findings of the first appellate court from the order dated 10/2/2005:--

The present appeal was admitted by the coordinate bench on 12/8/2008 and the following substantial question of law was framed for consideration by this Court:

"Admit. Notices need not be issued as the parties are represented.

The following substantial question of law is framed for consideration by this Court:--

"Whether there was any subletting of the suit premises in question by the original tenant Vardhi Chand in favour of the appellant-defendant Shanker Lal, whereas the said two persons Shanker Lal and Vardhi Chand entered into partnership in the name and style of M/s. Vinod Kumar and Company on 19/10/1969 and whether the learned courts below were justified in decreeing the suit inter alia on the ground of subletting?

In the meanwhile, the appellant-defendant shall continue to pay mesne profit to the respondents to the extent of Rs. 5000/- per month commencing from September, 2008 before 15th of next month regularly. In case, there is any default in payment of said mesne profit, the interim order granted by this Court shall stand vacated and the decree of eviction shall become executable forthwith. The stay application is accordingly disposed of."

Thereafter, after hearing the parties, on 26/9/2011 the execution of the judgment & decree dated 10/2/2005 was stayed by this Court.

Mr. Shridhar Purohit, learned counsel appearing for the defendant tenant submitted that the defendant Shanker Lal was a partner along with the original tenant Vardi Chand since 9/12/1968 and the documents filed in the Income Tax Department and Sales Tax Department for the said firm were signed by the defendant Shanker Lal in the capacity of partner and over the period of time, the name of the earlier firm M/s. Vinod Kumar and Company was changed to M/s. Shanker Lal Ashok Kumar in which the said Shanker Lal along with his son Ashok Kumar carry on the business of marble slabs and kota stones etc. in the suit premises, which are three in numbers, situated at different places at Sumerpur in District Pali.

Mr. Shreedhar Purohit, learned counsel for the appellant-defendants in support of his contentions relied upon the judgments in the case of Gyan Prakash & Ors. v. State of Rajasthan & Ors. -DNJ 2000 (Raj.) 235, Amrit Lal & ors. v. Smt. Sohan Kumari - (2007) WLC (UC) 696 and Bhuvneshwar Prasad & ors. v. UCO Bank & Ors. (2007) 7 SCC 232.

On the other hand, Mr. Suresh Shrimali, learned counsel appearing for the respondent-plaintiff -landlord vehemently supported the concurrent findings of the courts below that the defendant-tenants failed to adduce any evidence that the Shanker Lal was the partner with Vardi Chand, the original tenant, in whose favour the tenancy was created way back on 9/12/1968 and, thereafter, the other partners Khimraj and Vardi Chand retired. Therefore, the finding of the courts below to the effect that original tenant Vardi Chand had parted with the possession to his exclusion in favour of present appellant Shanker Lal was well proved and the plaintiff proved before the courts below that firm M/s. Shanker Lal Ashok Kumar is an independent firm and has no connection by way of partnership with the original tenant Vardi Chand and, therefore, the case of subletting was amply proved by the plaintiff and, thus, the decree of eviction deserves to be upheld.

Mr. Suresh Shrimali also submitted that it was not a case of change of name only from M/s. Vinod Kumar & Company to M/s. Shanker Lal Ashok Kumar and the original tenant Vardi Chand had no right over the tenanted premises & he has excluded himself from the possession of suit premises and the original tenancy was in respect of one Bara (open land) vide rent note Ex. 1, measuring 48x92 ft. and later on during the subsequent period of 1 or 2 years, the other two premises were also let out to defendant tenant-Vardi Chand.

Mr. Suresh Shrimali also submitted that Ex. A/25 and Ex. A/26, documents submitted in Income Tax & Sales Tax Departments, are for the later period and nothing turned out on the basis of those documents, so as to establish that said Shanker Lal could claim himself to be a partner of the firm with the original tenant Vardi Chand as no documents like Partnership Deeds, Certificate of Registration & change in the Constitution of firm, certified by Registrar of Firm, were ever produced by the defendant tenant.

Mr. Suresh Shrimali also submitted that the decree on any one of the grounds specified under Section 13 of the Act can be upheld and, therefore, the present appeal of the defendant deserves to be dismissed and the vacant and peaceful possession of all the three premises, as directed by the courts below, deserves to be handed over to the plaintiff-landlord.

Having heard the learned counsels for the parties, this Court is satisfied that the present appellant-defendant Shanker Lal is carrying on the business with his son Ashok Kumar in the name & style of M/s. Shanker Lal Ashok Kumar in all the three suit premises, namely cutting of marble slabs and kota stone etc. The original tenant Vardi Chand has no connection with the present partnership firm M/s. Shankerlal Ashok Kumar. The defendant-tenants failed to adduce any documentary evidence before the learned courts below showing the sequence of creation of partnership firm and change in its constitution from time to time, until when the original tenant Vardi Chand continued to be a partner in the present firm having possession of the suit premises. Therefore, it could not be said that the original tenant Vardi Chand, as a partner continued to be in possession as a tenant in the suit premises. Parting with the possession without the consent of landlord in favour of Shanker Lal and the present partnership firm M/s. Shanker Lal Ashok Kumar was, thus, clearly established by the landlord and the detailed reasons & cogent findings of fact in this regard by the courts below, as quoted above, are thus findings of facts, which do not deserve to be disturbed by this Court in the present second appeal. The judgments cited by the learned counsel for the appellant-defendants arise in different facts and circumstances of the case and, therefore, do not help the case of appellant-defendant-tenants in any manner.

Thus, this Court is of the considered opinion that the present second appeal has no merit and the same deserves to be dismissed and the eviction decree of the courts below concurrently given in favour of the plaintiff-respondent deserves to be upheld. The question of law framed above is answered in favour of the respondent-landlord and against the appellant-defendant.

In the circumstances of the case, it is directed that the appellant-defendant-tenants shall hand over the peaceful and vacant possession of the suit property viz. all the three premises in question to the respondent-plaintiff-landlord within a period of one year from today, i.e., on or before 28.02.2017 and shall pay mesne profit @ Rs. 15,000/- per month (Rupees Fifteen Thousand per month) @ Rs. 5000/- per month for each of the three premises on lumpsum basis from March, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent/plaintiff also and in case there is any default in payment of mesne profit, the period upto 28.02.2017, as mentioned above, for eviction shall stand reduced and the decree of eviction and injunction as granted by the Courts below would become executable forthwith. The appellant-defendant- tenants shall also clear all the arrears of rent and mesne profit and pay the same to the respondent-plaintiff within three months from today, otherwise the same will bear interest @9% per annum. The appellant-tenant shall also not sub-let, assign or part with the possession of the suit property or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The appellant-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-plaintiff on or before 28.02.2017, as mentioned above, from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-defendant shall also be entitled to invoke the contempt jurisdiction of this Court.