Trilok Singh vs Ramprasad and another

A.P. Sen, J.

This appeal by Defendant 2 is directed against a decree of the II Ird Additional District Judge, Jabalpur, dated 3rd December 1966, affirming the judgment and decree of the I Ind Civil Judge class II, Jabalpur, dated 25th February 1966, decreeing the Plaintiff''s suit for ejectment and mesne profits.

The facts leading to this appeal, briefly stated, are these. The Plaintiff, Ram Prasad Patel, had let out a portion of house No. 444/445 Galgala Ward, Jabalpur, delineated in red colour in the plaint map, to Bhojraj Arya, Defendant 1. The initial letting of the premises was for non-residential purpose. It appears that, from the very inception of the lease, the said Bhojraj started assembling sewing machines for sale in the name and style of Hindustan Sewing Machine Industries in the suit premises. In the year 1954, he entered into a partnership with the Appellant, Triloksingh, for carrying on this business in the name and style of Hindustan Sewing Machine Industries. The partnership firm was enlisted as a small scale manufacturing-unit by the Small Industries Service Institute attached to the Ministry of Commerce and Industry, Government of India. Thereafter, the firm was issued a certificate of registration as a small scale industry manufacturing sewing machiner. This partnership continued till 31st December 1962 when it was dissolved. As a result of the dissolution, Bhojraj Arya retired from the partnership which was taken over by Triloksingh and it became his proprietary concern. The dead of dissolution, dated 18 January 1963, stipulated that-

the business premises at 444, Galgala, Jabalpur, of the partnership firm Stood (sic) in the name of the outgoing partner, Shri Bhojraj Arya, which now will be nested by the ether partner, Sardar Triloksingh. Shri Bhojraj will have no right against these premises, and he will not put any hindrances even if the premises continue to stand rented in his name. He will try to get the same transferred in the name of Sardar Triloksingh

Before dealing with the appeal, it is necessary to set out a few more facts. The Plaintiff brought the suit for ejectment of the Defendants, Bhojraj Arya and Triloksingh, from the suit premises on the allegations that there was unlawful subletting of the premises by Bhojraj Arya to Triloksingh and further that he genuinely required the premises for setting up his own business in general merchandise.

In answer, the Defendant 1 admitted in his written statement that the Plaintiff did not agree to the transfer of the suit premises to Triloksingh and that he had sub-let the same without the consent of the Plaintiff. Tiiloksingh (Defendant 2) in his written statement denied the Plaintiff''s claim and, resisted, the suit on various grounds. Apart from disputing the genuiness of the alleged requirement of the suit premises, he further pleaded that the lease was for manufacturing purpose, and, thus, there was no valid determination by the notice, dated 8th February 1963. As regards the alleged subletting, he pleaded that actually the partnership firm was the tenant of the premises, although the tenancy nominally stood in the name of Bhojraj Arya and that the Plaintiff had knowledge of the dissolution of the firm, having acted as an intermediary in settling the terms. In other words, Triloksingh pleaded direct privity of contract between himself and the Plaintiff by necessary implication. The Courts below have negatived the defence of Triloksingh and found that the Plaintiff genuinely required the suit premises for starting a new business and further that there was unlawful subletting of the premises by Bhojraj.

The first question that arises for consideration in this appeal is whether the contract of tenancy was validly determined by the notice to quit, dated 8th February 1963. The contention urged on behalf of the Appellant Triloksingh is that the lease was for a manufacturing purpose and thus the tenancy was from year to year requiring six months'' notice. Relying upon the admission of the Plaintiff, Ram Prasad P.W.1, the learned Counsel further contends that the initial letting was for a manufacturing purpose. The contentions cannot be accepted for reasons which I shall state presently.

Although the pharse ''manufacturing purpose'' is used in Section 106 of the Transfer of Property Act in its popular sense, nevertheless, it means making of articles of trade and commerce by means of machinery. The statement of the Plaintiff is:

This does not necessarily imply that the lease was for a manufacturing purpose. The enlistment of the partnership firm as a small scale industry is not decisive of the matter. It is noteworthy that Triloksingh D.W.3 admits that initially the premises were taken for locating a repairing shop for sewing machines and not for a manufacturing purpose. It appears that assembling of sewing machines was first started by the partnership firm in the year 1954. A lease for a manufacturing purpose must be a lease which at its inception is for that purpose. The lease at the time of the grant by the landlord must be impressed with the purpose of manufacture. The fact that the premises were actually being used by the tenant for manufacture does not make the lease for a manufacturing purpose within the meaning of Section 106 of the Transfer of Property Act. The nature of subsequent user of the premises by the tenant without agreement of the landlord will not convert a lease into one for manufacturing purpose: [See, Sati Prasanna Mukherjee and Others Vs. Md. Fazel, , and Manzoor Ali v. Lal Devi AIR 1951 All. 396].

Apart from this, the popular concept of the word ''manufacture'' is the produption of a new or a different article for purposes of trade or commerce, or the conversion of one kind of article into another kind by use of machinery. The suit premises are admittedly being utilized for a mixed purpose, namely, assembling, repairing and selling, and such an use cannot be treated as a manufacturing purpose by any stretch of imagination. Taking of component parts for assemblage by hands into finished product is not a manufacturing purpose. The authorities relied upon by the learned Counsel for the Appellant are clearly distinguishable. In Rupeswari Debi Vs. Lokenath Hosiery Mills, , the premises were required for a manufacturing purpose to the knowledge of the landlord. In Steuart and Co. Ltd. Vs. C. Mackertich, , the purpose of the tenancy was to set up (sic) building and building of bodies, of cars and buses by means of machinery.

The next and last contention of the learned Counsel that there was a privity of contract brought about by reason of the Plaintiffs acquiescence in the transfer of the premises on the dissolution of the partnership cannot be accepted. In Tansukhdas v. Shambai 1954 NLJ 100.=AIR 1954 Nag. 160, a partnership was regarded as a personality distinct from that of one of the partners. This view was consistently followed by this Court in Parasram v. Jagannath Prasad Second Appeal No. 236 of 1959, decided on the 4th August 1960.; Laxminarain v. Anand Second Appeal No. 71 of 1962, decided on the 5th May 1962; Chandrasen v. Rancharanlal Second Appeal No. 210 of 1962, decided on the 29th Aug. 1963, and Baldeodas v. Champabai Second Appeal No. 858, of 1965, decided on the 29th September 1967. The deed of dissolution proceeds on the basis that the tenancy stood in the name of Bhojraj Arya. It is, therefore, futile to contend that the partnership firm was in reality the tenant of the Plaintiff merely because rents were paid out of the partnership business. Triloksingh D.W. 3 admits that the premises were initially let out to Bhojraj Arya and, till the dissolution, he had never approached the Plaintiff for a transfer of the lease in his favour. There is nothing on record to substantiate that the Plaintiff had assented to the transfer of the lease. It must accordingly be held that the transfer of the lease-hold right to Triloksingh (sic) to subletting of the premises without the consent of the Plaintiff. The (sic) that the Plaintiff genuinely required the suit premises for establishing his own business is one of fact based on appreciation of evidence and cannot he (sic) in this second appeal: Harnarain v. Kanhaiyalal 1965 M.P.L.J. 97, and Sarvate T.B. v. Nemichand 1966 M.P.L.J. 26 S.C.

The result is that the appeal fails and is dismissed with costs. Counsel''s fee Rs. 50/-, if certified.