Ram Charan Chaubey v. Jagdish Shankar — 1988 DIGILAW 1140 (ALL)

JUDGMENT A.N.Varma 1. This is a defendants' second appeal arising out of a suit for ejectment from a shop situate at P-Road, Sismau, Kanpur. Both the courts below have, on a concurrent finding that the defendants appellant has illegally sub-let the shop to defendants 2 and 3 without the consent of the plaintiff' and the permission of the District Magistrate, decreed the suit, 2. Shortly stated, the plaint case was that the plaintiff was the owner and landlord of the disputed shop which was let out to Ram Charan Chaube, the defendant no. 1, at a monthly rental of Rs. 15/-. Ram Charan Chaube, however, illegally sublet the shop to Mahesh Chandra Chaube, the defendant no. 2, his uncle, without the consent of the plaintiff or the permission of the District Magistrate whereupon the plaintiff determined the tenancy of the defendant no. 1 by means of a notice asking him to vacate the shop. On failure of the defendants to vacate the shop, the suit was brought for their ejectment. The defence of the defendant nos. 1 and 2 who filed a joint written statement was that the defendant no. 1 had not sublet the accommodation in suit. On the contrary, they were both running a partnership business under the name and style of Swadeshi Paint Stores since 1952 in the accommodation in suit. 3. On the pleadings of the parties, relevant issues were framed by the trial court, the material issue being whether the defendant no. 1 has sublet the accommodation to the other defendants. The trial court, on a consideration of the evidence on record, came to the conclusion that the defendant no. 1 had illegally sublet the shop to the other defendants, without either the consent of the plaintiff or the permission of the District Magistrate. The substance of the finding of the trial court is that the partnership set up by defendant no. 1 was a mere camouflage and that in actuality it is Mahesh Chandra Chaube, the defendant no. 2 alone who was in exclusive occupation of the shop carrying on the business which is being run therein under the name and style of Swadeshi Paint Stores. The further finding is that the defendant no. 1 is not in any way concerned with the business being carried on in the shop by the defendant no. 2. 2 alone who was in exclusive occupation of the shop carrying on the business which is being run therein under the name and style of Swadeshi Paint Stores. The further finding is that the defendant no. 1 is not in any way concerned with the business being carried on in the shop by the defendant no. 2. The suit was accordingly decreed for ejectment as well as for recovery of Rs. 12.59. 4. On appeal, the lower appellate court endorsed the findings of the trial court after a very careful and exhaustive consideration of the oral and documentary evidence led by the parties as well as the circumstances emerging therefrom. For the appellant Sri S. N. Agarwal submitted that on record there was a registered partnership deed which fully supported the claim of the appellant that the business which is being carried on in the shop is a partnership business of which the defendants 1 and 2 are the partners. The courts below have, therefore, erred in holding that there was any sub-letting by the defendant no. 1. 5. There is no merit in this argument. Apart from the numerous facts and circumstances which lead to the irresistible conclusion that the defendant no. 1 has sublet the shop to the defendant no. 2, two facts stressed by the lower appellate court are, to my mind, extremely important. The first is that notwithstanding the partnership deed, before the sales tax authorities Mahesh Chandra Chaube, defendant no. 2, all along described himself as and asserted that he was the sole proprietor of the Swadeshi Paint Stores. This fact was borne out by the record of the sales tax authorities which was summoned. The second fact pointed out by the courts below in support of their conclusion was the significant circumstance that from the year 1954 to 1960 the defendant no. 1 was actually residing in Banda and carrying on the business in sand and moram and though the defendant no. 1 denied this fact there was overwhelming evidence noticed by the courts below which established beyond doubt that at a time when defendant no. 1 was supposed to have been carrying on business in partnership with defendant no. 2 at Kanpur he was actually residing in Banda and carrying on an altogether different business there in sand and moram. 6. 1 denied this fact there was overwhelming evidence noticed by the courts below which established beyond doubt that at a time when defendant no. 1 was supposed to have been carrying on business in partnership with defendant no. 2 at Kanpur he was actually residing in Banda and carrying on an altogether different business there in sand and moram. 6. Besides these facts the lower appellate court has also adverted to the terms of the partnership deed and held that if the same are read along with the other evidence it would be apparent that the business being run in the shop was exclusively that of the defendant no. 2. The defendant no. 2, as mentioned above, was proclaiming himself as such, namely, as the sole proprietor of the business as was established by the records maintained by the sales tax authorities, the advertisement published in the 'daily Jagran' in which the defendant no. 2 had described himself as the sole proprietor of that business and other facts and circumstances discussed in the two judgments. On the basis of the entire facts and circumstances of the case both the courts below have recorded a categorical finding that the defendant no. 1 had walked away after handing over exclusive possession of the disputed shop to the defendant no. 2 and shifted to Banda. The courts below have further found that the partnership set up by the defendant was a mere camouflage designed to conceal the real state of things. Every single act relating to the business being carried on in the shop was being done by the defendant no. 2. The evidence pointing to subletting was overwhelming 7. Learned counsel for the appellant totally failed to demonstrate that the concurrent preliminary facts found by the courts below as well as the ultimate conclusion recorded by them that defendant no. 1 had sublet the accommodation in favour of the other defendants, as asserted by the plaintiff, were vitiated by any error of law. The lower appellate court has rightly observed that it is not always easy to establish subletting by direct evidence or to prove that in fact the tenant-in-chief was realising rent from the sub tenant. 1 had sublet the accommodation in favour of the other defendants, as asserted by the plaintiff, were vitiated by any error of law. The lower appellate court has rightly observed that it is not always easy to establish subletting by direct evidence or to prove that in fact the tenant-in-chief was realising rent from the sub tenant. The inference of sub-letting could hence be drawn from various facts and circumstances such as delivery of exclusive possession by the tenant-in-chief to the sub-tenant or where, as here, it is shown that the tenant-in-chief has walked away and allowed another to occupy the building let out to him for exclusive use and enjoyment. 8. Sri S. N. Agarwal, however, submitted relying on the decision in the case of Ajit Singh v. Naresh Chand Gupta, 1981 ALJ 168 that a tenant could not be evicted merely on the finding of exclusive possession by a person other than the tenant and that unless it is proved further that the sub-tenant was in occupation of the premises for valuable consideration, the suit for eviction could not be decreed on the ground of illegal subletting. The submission cannot be accepted. While exclusive possession by itself may not be decisive where the issue is whether the transaction constitutes a lease or a mere licence, the court can, on the basis of surrounding facts and circumstances established on the record, legitimately infer that the transaction was entered into between the tenant and the alleged sub-tenant for monetary consideration even though there may not be available direct evidence of such a consideration. 9. I am fully fortified here by a recent pronouncement of the Supreme Court in the case of Smt. Rajbir Kaur v. Messrs. S. Chokosiri and Co., AIR 1988 SC 1845 . Their Lordships have ruled that if exclusive possession is established and the version of the tenant as to the particulars of the incident and the transaction is found unacceptable in the particular facts and circumstances of the case it may not be impermissible for the court to draw the inference that the transaction was entered into for monetary consideration. Their Lordships have further observed that such transactions of subletting are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got and that it is not unoften a matter of legitimate inference. 10. Their Lordships have further observed that such transactions of subletting are in their very nature clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got and that it is not unoften a matter of legitimate inference. 10. Applying the aforesaid dictum to the facts of the present case what I find is that both the courts below have for good and proper reasons rejected the version of defendant no. 1 as to the nature of the arrangement existing between him and the defendant no. 2 as totally unreliable and unacceptable. It, therefore, follows by necessary implication that the transaction was a plain and simple device for sub-letting where exclusive possession was passed on to defendant no. 2 for monetary consideration. This conclusion is also fortified by the terms in the partnership deed according to which the defendant no. 1 was entitled to two annas share in the profits. Lastly, learned counsel submitted that defendant no. 2 is the uncle of defendant no. 1 and consequently the transaction was at best a case of licence and not a lease. The nature of the arrangement existing between the two defendants has been examined by the lower appellate court exhaustively and, on a consideration of the entire evidence, it has held that the defendant no. 1 had ceased to have any concern with the business being carried on in the shop. The evidence on the other hand was overwhelming showing that defendant no. 2 was the sole proprietor of the business and he made little or no effort to conceal that fact. Indeed he was proclaiming from house top that he was the sole proprietor of the business which completely belies the claim of the appellant. 11. No other point was urged in support of this appeal. 12. In the result, the appeal fails and is dismissed with costs to the plaintiff-respondents. Appeal dismissed.