Sudarshan Kumar vs Bhola Nath and Another

R.L. Anand, J.—This is a rent revision filed by Sudershan Kumar, landlord, and it has been directed against the judgment dated 15.2.1983, passed by the court of the appellate authority, Rohtak, under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (herein after called ''the Act''), who concurred with the findings dated 15.9.1982 passed by the Rent Controller, Rohtak, who dismissed the rent petition of the landlord u/s 13 of the Act.

The pleadings of the parties can be summarised in the following manner:-

The landlord filed an ejectment petition u/s 13 of the Act against Bhola Nath son of Ishwar Dass and M/s Deepak machinery Store, Jhajjar through Varendra Kumar son of Jassu Ram, describing him as proprietor of M/s Deepak machinery Store, and the case set up by the petitioner was that Santokh Chand was the landlord of this property and Bhola Nath, respondent No. 1, was the statutory tenant. The property was given on rent on a monthly rental of Rs. 25/-. The petitioner subsequently purchased this property from Santokh Chand, the previous owner and, in this manner, he became the landlord of the property and respondent No. 1 the tenant. According to the petitioner, the respondents No. 1 and 2 are liable to be ejected from the demised premises because the tenant respondent No. 1 had neither paid nor tendered the arrears of rent since 1.3.1977 and that "respondent No. 1 has sub-let the rented premises to respondent No. 2"

Notice of the petition was given to the respondents, who filed the written statement and denied the allegations. So far as the relationship of landlord and tenant between the Santokh Chand and Bhola Nath was concerned,it was admitted. The rest of allegations were not accepted. According to the respondents, respondent No. 1 had not sub-let the premises to respondent No. 2 nor respondent No. 1 had parted the possession. Rather, respondent No. 1 had entered into a partnership with Jassu Ram son of Iswar Dass, his real brother, Om Parkash and Varendra Kumar, sons of Jassu Ram, his cousin vide partnership deed executed on 13.2.1978 on the terms and conditions mentioned in the Deed itself for carrying on the business in the demised premises under the name and style of M/s Deepak machinery Store w.e.f. 18.12.1976. Respondent No. 1 is a partner in the said partnership and in possession of the demised premises, as such, the other partners are not tenants under the landlord or the subtenant. They have no concern with the tenancy rights. The respondent No. 1 has never relinquished the possession of the shop in question to respondent No. 2 or anybody else.

A rejoinder was filed by the landlord, who stated that the alleged partnership, if any, was a bogus affair, ingenuine and sham and it has been created simply to avoid ejectment.

On the above pleadings of the parties, the learned Rent Controller Framed the following issues for the disposal of the petition :-

"1) Whether the respondents are liable to ejectment from the premises in dispute on the grounds alleged in the petition? OPA.

2) Whether the petitioner has no locus standi to file the petition? OPR.

3) Relief."

The parties led oral and documentary evidence in support of their case and on the conclusion of the proceedings, the Rent Controller decided both the issues against the landlord and in favour of the tenant and dismissed the rent petition.

Aggrieved by the order of the Rent Controller, the landlord filed a rent appeal u/s 15 of the Act in the court of the appellant authority at Rohtak, who for the reasons given in the impugned judgment itself, dismissed the appeal and aggrieved by the orders of the courts below, the present revision by the landlord.

I have heard Mr. Arun Jain, counsel for the petitioner and Mr. Hemant Sarin counsel for the respondents and with their assistance have gone through the record of this case.

Before I deal as I have enumerated above, the landlord has sought the ejectment on the ground of sub-letting. In order to constitute sub-letting, it is necessary to prove on the part of the landlord that the tenant had relinquished the legal possession over the demised premises in question to the sub-tenant. In this regard, the allegations of the landlord are very relevant. I have highlighted above and in comes what was pleaded by the landlord in the ejectment petition and at the cost of repetition, I may mention that the allegations of the landlord were very cryptic and vague. He simply stated that respondent No. 1 has sub-let the rented premises to respondent No. 2. there is no averment in the rent petition that any consideration was agreed to be paid by respondent No. 2 to respondent No. 1. The landlord in his wisdom has also not mentioned the inter se relationship between the respondents No 1 and 2 for the obvious reasons that respondent No. 2 Varendra Kumar is none else but the son of Jassu Ram, who is real brother of Bhola Nath, respondent No. 1 In order to succeed on the ground of sub-letting, it is necessary on the part of the landlord to alleged and show that the tenant has parted with the exclusive possession of the premises over which the main tenant had no control and these findings were given by the Hon''ble Supreme Court in Dipak Banerjee Vs. Lilabati Chakraborty, . Further the Hon''ble Supreme Court held that it is obligatory on the part of the landlord to show the consideration for sub-letting. It is true that sub-letting is a secret arrangement and pact between a tenant and a sub-tenant of which the landlord was never a party and such like contracts or agreements are invariably entered into at the back of the landlord., Yet, the initial onus is upon the landlord to establish that the tenant had parted the legal possession of the demised premises to the sub-tenant with the intention that the tenant does not want to exercise his right over the property as a lessee for all intents and purposes and that he wanted to divest the control of the premises in favour of a stranger; may be a close relation like son or brother. Thus, it can be said that sub-letting is a question of fact which can be proved from facts of each case.

In his endeavour to succeed against the tenant on the ground of sub-letting, it was argued by the counsel for the petitioner that the case set up by the tenant is that he has entered into a partnership vide partnership deed dated 13,2,1978 and the court has always the power to lift the veil in order to find out whether the deed of partnership was a genuine affair or not and if the court comes to the conclusion that the partnership deed has been created as a device to defeat the legitimate claim of the landlord, an adverse inference should be drawn against the tenant. Counsel for the petitioner submitted that the tenant has not placed on record any record of the departments of Sales Tax or Income Tax. So much so, no accounts books of respondent No. 2 have been produced in order to show whether respondent No. 1 had any interest in the said partnership or not. So much so, no cash memos of either sale or purchase have been placed on record. The documentary evidence which has been relied upon by the respondents is not enough to hold that there was a genuine partnership. The counsel even went to the extent by saying that respondent No. 1 had started his own shop in which he and his wife and son are partners and it is not possible that respondent No. 1 would retain only 10% of his share in the partnership firm known by the name of Deepak Machinery Store and he would not readily part with 90% interest in favour of his brother Jassu Ram and two sons of his brother; namely, Om Parkash and Varendra Kumar.

In support of his contention, counsel for the petitioner relied upon Sh. Janak Raj Ahuja Vs. Sh. Navneet Sehgal and Another, , Smt. Darshana Devi and Another Vs. Des Raj Singh Thakur, .

Basant Kaur and Ors. v. Shanti Devi and Ors. (1991)96 P.L.R. 115 and Ajit Singh and Others Vs. Kamal Kishore and Others, .

I have considered the submissions of the counsel for the petitioner with the help of the record but I am not in a position to accept the same for the established facts which are totally distinguishable from the record. First of all, I would like to discuss the documentary evidence which has been placed on record by the tenant in order to establish that he entered into a genuine partnership with his brother and his sons. Respondent No. 1 has not committed any crime or mistaken when he had started his new business in partnership with his wife and son, the point for determination would be so long as respondent No. 1 had the control over the premises in question, it cannot be held that he had parted the possession of the shop in favour of respondent No. 2 or anybody else. A partner can run different and many businesses. I have already stated above that in order to constitute sub-letting, it is to be established and proved that the tenant had left the control over the premises with the intention to relinquish this tenancy rights in favour of the sub-tenant. Ex.R-1 is the partnership deed in original. Through this partnership deed, four partners were inducted in the firm; namely, Jassu Ram, Bhola Nath, Om Parkash and Varandra Kumar, who had 40%, 10%, 25% and 25% share, respectively, in the profit and loss. It was also agreed upon by the partners that the business will be run in the name and style of Deepak machinery Store and this partnership firm had come into existence w.e.f. 8.12.1976. The deed was, however, executed on 13.2.1978 and the stamps were also purchased on the same day by Om Parkash son of Jassu Ram. In pursuance of this partnership deed, the firm Deepak Machinery Store started filing the Income Tax Returns. The first return was of the year 1978-79.

Firstly, the firm was register u/s 185(1) of the Income Tax Act and an application for registration in Form 11 was submitted before the income tax authorities on 28.3.1978. That application was accompanied by original instrument of partnership deed executed on 13.2.1978, Ex.R-1. The application was made within limitation. In the application, the income tax authorities were satisfied that the profits have been divided in accordance with the shares stipulated in the deed and all the legal formalities had been fulfilled. A very significant remark was given by the income tax department on the face side of Ex.R-2, i.e. " the first is genuine." After being satisfied that the firm is genuine, the authorities granted registration to the firm for the assessment year 1978-79. A further reading of Ex.R-2 would show that a return was submitted and an income of Rs. 14,600/- was shown. Accounts books of the firm were also produced before the income tax authorities and these were examined and, finally, the income was assessed at Rs. 19,000/- as against the return of Rs. 14,600/-. A deduction of Rs. 518/- was given and the net income was assessed at Rs. 18,482/-. The share of Jassu Ram came to Rs. 7,393/-, while that of Om Parkash at Rs. 4,620/-, Varendra Kumar got Rs. 4,621/- and Bhola Nath got Rs. 1,848/-. In the light of this, it is clear that the firm had been maintaining accounts books, those books were shown to the authorities. The accounts books were examined by the income tax authorities and, thereafter, a tax was imposed. That meets the major criticism of the counsel for the petitioner that the respondents had not produced the best evidence of accounts books in the court so as to disprove the case of the landlord. In this very document, it was held that the firm was a genuine one. In this background, it was not obligatory on the part of the respondents to again, produce the accounts books when the landlord has not given any notice under order 12 rule 8, CPC to the tenant to produce the accounts books of M/s Deepak Machinery Store.

Ex.R-4 yet another document would show that this very firm was, again, assessed to Income Tax for the assessment year 1979-80 at Rs. 22,730-00 and a tax of Rs. 731/- was imposed. Yet another payment of Rs. 253/- was raised upon Deepak Machinery Store vide Ex.R-3 and it has been shown that it is a registered firm for the purposes of Income Tax Act. In such state of affairs, it cannot be held that the partnership was a fake one just to deceive the landlord. Even the landlord does not say that respondent No. 1 had no proximity of relationship with the alleged sub-tenant or his son. He has not conveniently mentioned in the rent petition the relationship of Varendra Kumar and Bhola Nath.

Against this documentary evidence, the petitioner has not led any documentary evidence to show that the partnership was not a genuine affair.

Now, I would like to discuss the oral evidence of the petitioner. Though, he has examined 7 witnesses but after reading the statements of these witness. I am of the opinion that none of the witnesses has been able to make out a case of sub-tenancy. Some witnesses wanted to show saneness about the relationship of Bhola Nath with his brother Jassu Ram and some had even gone to the extent by saying that they did not know if any rent was paid in their presence by the alleged sub-tenant to the tenant. There was a lot of stress by the counsel for the petitioner on the statement of A W-6, the Industry Inspector, who stated in his examination in chief that this firm was registered as a''small scale unit on 14.11.1977 and Varendra Kumar s/o Jassu Ram has been shown as an individual proprietor. The statement of this witness does not advance the case of the petitioner. Every partner is also a proprietor of the firm. If, Varendra Kumar has signed the form in his individual capacity, that does not mean that he is the exclusive owner of M/s Deepak Machinery Store. Yet, the stress was placed on the statement of AW-7, the landlord, who stated in his examination in chief that Bhola Nath had given the possession of the shop in question to Varendra Kumar by way of sub-tenancy. Even the statement of the landlord does not make a case of sub-letting. In the cross-examination, he had to admit that he does not know if Varendra Kumar paid anything to Bhola Nath or not.

As against the oral statements of AWs, there is a categorical statement of Bhola Nath, who appeared as RW-1 that he had not parted the possession of the shop in question to Varendra Kumar. Rather, he had entered into partnership with his brother and his two sons. So much so, he has stated that he took a loan from the State Bank in the name of M/s Deepak Machinery Store.

The only criticism which was levelled against the statement of Bhola Nath was that he was not in a position to tell how much capital he had invested in the partnership firm. This criticism, in the opinion of this court, is not enough to hold that it was a case of sub-letting. If the entire statement of Bhola Nath is read, he has clearly stated that he had the control over the premises. A partner may not be in a position to tell as to what amount he had actually invested in the partnership firm. There is no denying the fact that the interest of Bhola Nath in this firm is only to the extent of 10% but that circumstance, alone is not sufficient to junip to the conclusion that he had no control over the premises.

The case law relied upon by the counsel for the petitioner also will not help him. In Janak Raj Ahuja''s case (supra), the partnership deed was produced before the rent controller but accounts books and income tax returns were not produced and, in these circumstances, it was held that the partnership was merely a camouflage. In the present case, the deed of partnership has come. The income tax assessment orders have come and in those orders, there is a clear indication that the firm was maintaining the accounts books and those accounts books were examined by the income tax authorities and the firm was held to be genuine. There was proper distribution of profits and loss amongst the partners. Bhola Nath had also started his new business and for that reason he might have entered in to partnership with his own brother and his sons. In this very judgment, it was held that so long the tenant remains to be the partner in the partnership firm, there is no sub-letting because being the partner in the business, he will be deemed to be in possession of the demised premises. Once a genuine partnership is established, there will not be any question of sub-letting.

In Darshana Devi''s case (supra), the tenant had not produced any record such as accounts books, bank accounts, share capital, distribution of profits, etc. In that background, it was held to be a case of sub-letting. The presumption in favour of the landlord can only be derived if it is established that the tenant had parted the exclusive possession to the sub-tenant. Here is a case on different lines. The possession and control over the demised premises still vests with Bhola Nath, who has entered into a real partnership as stands proved from the documentary evidence.

The judgment in Basant Kaur''s case (supra) also is on different premises, wherein it was held that exclusive possession had been given by the tenant. The interest of the tenant in the partnership firm was very nominal and she was not taking any interest in the running of the partnership affairs. Every case has to be seen from its own facts.

Similarly, the judgment in Ajit Singh''s case (supra) is distinguishable. In the cited case, the tenant only produced the partnership deed and no other evidence in support of his case. In these circumstances, it was held that once the tenant took the plea of partnership, then, onus lies on him to prove that there was a genuine partnership. In the present case, genuine partnership stands proved. It is also confirmed by the income tax authorities. What else was required on the part of the tenant to be shown has not been explained by the counsel for the petitioner except by repeating his arguments quoted above, which I have already rejected.

As against this, the counsel for the respondents has attacked the arguments of the counsel for the petitioner from different angles. He submitted that the concurrent findings of fact had gone against the landlord and those concurrent findings should not be disturbed by the revisional authority and in support of his contention, the learned counsel for the respondent relied upon Dr. Gyan Parkash v. Som Nath and Ors. 1996(1) R.C.R. 342, where in it was held by the Hon''ble Supreme Court that when the concurrent findings of fact have gone against the landlord on the question of sub-letting, the High Court should not re-appreciate the entire evidence and come to a contrary finding. This dictum of the Hon''ble Supreme Court can be safely followed in this case. I do not find any wrong or illegal appreciation of evidence by the courts below, therefore, the re-visional authority would be quite slow and shall not disturb the concurrent findings of fact.

In Dev Kumar (Died) through LRs. Vs. Smt. Swaran Lata and others, , the Hon''ble Supreme Court has held that the powers of the High Court in revision in re-appreciating the evidence and interfering with the conclusion of the appellate authority is limited unless perversity in the matter of appreciation of evidence is distinguishable from the findings of the courts below. It was further held that the exclusive possession of the premises by the sub-tenant is the first criteria for sub-letting. This judgment is also helpful to me to repel the case of the petitioner.

Counsel for the respondent, then, relied upon Victor Kumar Vs. Shakuntla Devi and Others, , in which it was held that if accounts books are not produced by the tenant on this single factor, an adverse inference should not be drawn against him. It is true that the parties are supposed to lead the best evidence in their power and possession in support of their case but in this case it is evident from Ex.R-1 that the income tax authorities and further the landlord never served any notice on the tenant to produce the accounts books of M/s Deepak Machinery Store.

In Vir Bhan v. Kunj Lal and Anr.(1971)73 P.L.R. 810, it was held that when the tenant take two more persons as partners it will not have any effect on the tenancy, if those two persons were genuine persons. It was held that it was for the court to see whether there was genuine partnership or not.

Reliance was also placed upon Ram Dhan Sharma Vs. Shri Bishan Sarup Mittal and Another, and Syed, Feroze Ali Shah v. Syod Jamil Ali Shah and Anr. 1980(2) R.C.R. 320. The common ratio of both these authorities is that if there is no evidence to show that the tenant was receiving any consideration, it can be reasonably inferred that the tenant had not parted with the legal possession.

From the above discussion, I have come to the conclusion that the landlord has not been able to make out a case of sub-tenancy. It was a case of genuine partnership and the concurrent findings of the courts below are hereby affirmed.

No merits. Dismissed. No costs.