P. K. Babri ( 1 ) THE challenge in this appeal is to the judgmentof the Rent Control Tribunal dated 30/03/1990, by which he had allowed the appeal of the landlady and had set aside the order of the Additionalrent Controller dated 1/02/1988, by which the eviction petitionbrought on the ground of eviction covered by Clause (b) of. proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act was dismissed andthe Rent Control Tribunal has allowed the eviction petition and passed theeviction order on the said ground leaving the parties to bear their own costs. ( 2 ) THE case set up by the landlady, in brief, is that the shop locatedin premises No. C/30-A, Model Town, Delhi, was let out to Hari Narain buthe has, about ten years earlier, sublet, assigned and parted with possession ofthe said shop in favour of his real brother Jagdish Narain without obtainingany written consent of the landlady. The two brothers filed a joint writtenstatement and pleaded that there has been no subletting or assigning orparting with possession of the demised premises by the tenant in favour ofhis brother and as a matter of act, both brothers have a partnership firmunder the name and style of M/s. Lakshmi Store which is functioning in theshop and the partnership deed was executed on 4/10/1965 and both ofthem are carrying on business in the said shop as partners and they haveshare in profit and loss equally. They also pleaded that the partnership firmis also assessed to income-tax. ( 3 ) IN support of the ground of eviction the landlady appeared in thewitness box and deposed that the tenant Hari Narain had parted with possession of the shop in favour of his brother Jagdish Narain about 10-12 yearsago and it is only Jagdish Narain and his two sons, namely, Titu andmukesh, who are running the business in the shop. She produced a chitex. A2 given by Hari Narain wherein he had mentioned his address as Harinarain Raj Kumar, 3679, Narang Colony, Tri Nagar and she stated thathari Narain is residing and having his shop at that address. She deniedthat both the brothers are carrying on the business in the shop in question. She produced a chitex. A2 given by Hari Narain wherein he had mentioned his address as Harinarain Raj Kumar, 3679, Narang Colony, Tri Nagar and she stated thathari Narain is residing and having his shop at that address. She deniedthat both the brothers are carrying on the business in the shop in question. It is admitted fact that the landlady is residing on the first floor of the sameproperty but she had not given any explanation as to why she has waited forten years for filing the eviction petition. The landlady herself had producedin cross-examination of Jagdish Narain, the alleged sub-tenant, the counterfoils of the rent receipts bearing signatures of Jagdish Narain the photocopiesof the same proved on the record are Ex. R2 which are of the period 1969 to1976. PW2 another tenant of the landlady in the same building deposed inexamination-in-chief that it was Jagdish Narain only who is in possession ofthe shop in question. This witness, however, in cross-examination could notsay whether both the brothers are running the shop together or not. However, he admitted that Hari Narain also sometimes comes and sits at the shopand even Hari Narain s son also sometimes comes to the shop. ( 4 ) HOWEVER, the position of law is very clear that once a partnershipis set up then onus is on the tenant to prove the existence of a genuine partnership and if such onus is not discharged then a presumption can be drawnin view of Section 14 (4) of the Delhi Rent Control Act that in fact, subtenancy has been created by the tenant. ( 5 ) THE appellants had proved on record partnership deed Ex. R5 andassessment orders Exs. R6 to R8 of the Income-Tax Department of theassessment years 1975-76, 1976-77 and 1982-83 which clearly show that theincome-tax authorities have treated the business being run in the shop inquestion as partnership business of the two brothers having equal shares. They have also proved on record Account Opening Form, copy Exs R3 andr4 and specimen signatures Exs. R1 and R2 given in the bank showing thatbank account was opened in 1984 in the name of partnership and both thepartners could individually operate the bank account. The two appellantsappeared as RW2 and RW3 and made statements on oath that partnershipbusiness of the two appellants is being run in the demised premises. R1 and R2 given in the bank showing thatbank account was opened in 1984 in the name of partnership and both thepartners could individually operate the bank account. The two appellantsappeared as RW2 and RW3 and made statements on oath that partnershipbusiness of the two appellants is being run in the demised premises. ( 6 ) THE learned Additional Rent Controller relying on these documents and statements of the said two witnesses and also statement of PW2gave a finding that appellants have been able to prove existence of a genuinepartnership business of the two appellants in the shop in question and thus,the ground of subletting or parting with possession is not made out. Heparticularly emphasized that if there had been any such subletting or partingwith possession of the shop as claimed by the landlady she would not havewaited for eight years to file the eviction petition and she would not have gotthe signatures of the alleged sub-tenant on the counterfoils of rent receiptsfor such a long period. ( 7 ) THE learned Tribunal, on the other band, after referring to thecontents of the partnership deed has given a finding that this partnershipdeed does not meet with the requirements of the definition of "partnership"given in the Partnership Act and thus, he reversed the finding of the Additional Rent Controller and held that appellants have failed to prove theexistence of any genuine partnership business in the shop in question andthus, presumption mentioned in Section 14 (4) of the Delhi Rent Control Actcame into play and ground of subletting stood proved. ( 8 ) THE learned Rent Control Tribunal has relied on Mangat Ram v. Om Parkash, (1962) 64 PLR 30. It is, indeed, not in dispute that Section 4of the Partnership Act lays down the essential elements which must existbefore a particular business could be called partnership business. Thoseelements are: (I) it must be the result of an agreement between several persons; (ii) the agreement must be to share the profits of the business; and (iii) the business must be carried on by all or any of them acting forall and there must be an intention to become partners. Thoseelements are: (I) it must be the result of an agreement between several persons; (ii) the agreement must be to share the profits of the business; and (iii) the business must be carried on by all or any of them acting forall and there must be an intention to become partners. ( 9 ) IN the cited case the partnership deed did not indicate as to whowas to carry on the business, whether all partners were to carry on businessor one of the partners was to carry on business acting for the other partnersand thus, as one of the essential elements to show the existence of partnership was lacking, it was held that the said partnership deed did not bringabout any partnership as understood under the Partnership Act. Similarwas the position in Kastur Chand v. Gujjar Mal and Others, 1977 (2) Rent Lawreporter 470. ( 10 ) THERE is no dispute about the legal proposition enunciated inthese two judgments. Unfortunately in the present case the learned Tribunalonly referred to the terms 1 to 11 of partnership deed Ex. R5 in coming tothe conclusion that this partnership deed does not indicate as to who is tocarry on business out of the two brothers and whether one brother was tocarry on business on behalf of the other brother. So, as the element ofagency is lacking, thus, this particular document does not bring about a partnership in consonance with Section 4 of the Partnership Act. The learnedrent Control Tribunal unfortunately failed to notice the recitals mentionedin the document which clearly indicated that both the partners are carryingon business in the said shop jointly. It was recited that Hari Narain wascarrying on the general merchants business in the shop since 1962 but due topaucity of funds the business was not successful and therefore, he had joinedhis brother Jagdish Narain as partner in the said business and both the parties have been running the said partnership business of general merchantssince 1/10/1965. This partnership deed was executed on 4/10/1965. So, it is quite clear that the said essential element of partnership mentioned in Section 4 of the Partnership Act was indicated in the recitals of thedocument that both partners are to carry on the actual business in the saidshop. So, these two judgments relied upon by the Rent Control Tribunalwere distinguishable on facts. So, it is quite clear that the said essential element of partnership mentioned in Section 4 of the Partnership Act was indicated in the recitals of thedocument that both partners are to carry on the actual business in the saidshop. So, these two judgments relied upon by the Rent Control Tribunalwere distinguishable on facts. This omission of the Rent Control Tribunalto read the recitals of the document which have ample bearing in understanding the intention of the parties gives rise to a question of law and secondappeal is competent on question of law before this Court. ( 11 ) THERE is no doubt a typographical mistake in Ex. R5 as to thedate when Hari Narain started the business in the shop. Because it is notdisputed in the pleadings that tenancy commenced in 1963, so mentioning ofthe year 1962 on the face of it is typographical mistake. No question wasput to the appellants in cross examination to get the explanation as to howthe year 1962 came to be mentioned. The learned Counsel for the respondent has drawn my attention to the endorsement of the Stamp Vendorappearing at the back of the first page of the document which shows thatstamp paper was purchased on 6/10/1963. This has been highlightedby the learned Counsel for the respondent in support of his contention thatit was not a genuine document and it has been brought in existence only forthe purpose of this case. Again, no question was put to either of the appellants in cross-examination with regard to purchase of this stamp paper in1963 and reasons for purchasing the said stamp paper in the year 1963. Itis to be remembered that there was admittedly no dispute or quarrel amongstthe parties till the filing of this eviction petition. The landlady was verywell aware of Jagdish Narain functioning in the shop for the last so manyyears. So, there could be no occasion for the appellants to have startedtaking steps for showing the existence of partnership in the shop in questionin order to camouflage the alleged subletting in favour of Jagdish Narain. ( 12 ) THE Income-tax assessment orders would also indicate that theremust have been genuine partnership otherwise there could be no reasons forthe appellants to have filed their returns in the Income-tax department as farback as in the year 1975-76 onwards. It is, no doubt, clear from the sub Ex. ( 12 ) THE Income-tax assessment orders would also indicate that theremust have been genuine partnership otherwise there could be no reasons forthe appellants to have filed their returns in the Income-tax department as farback as in the year 1975-76 onwards. It is, no doubt, clear from the sub Ex. A2 that tenant has another shop in Tri Nagar but still in cross-examinationon questions were put to find out from him as to who is running the shop attri Nagar. It has come out in cross-examination of Public Witness 2 that tenant hasa son and so possibility of tenant s son helping the tenant in his shop attri Nagar cannot be completely over-ruled. Be that as it may, the merefact that tenant has another shop at Tri Nagar would not lead toany inference that the business being carried on in the shop in questionis not partnership business of the appellants and is the exclusive business of Jagdish Narain. Ex. RIO is the copy of the certificate issuedunder the Shop and Establishment Act. This was issued on 19/01/1968. This also shows that occupier employer is Hari Narain. Incase theappellant-tenant bad sublet the shop to brother Jagdish Narain, there couldbe no occasion for tenant as being shown occupier employer under the Shopand Establishment Act. ( 13 ) THE learned Counsel for the respondent has pointed out thatthere exists a telephone in the name of Jagdish Narain in the shop in questionwhere as Hari Narain in cross-examination has stated that he did notremember the telephone number and from this Counsel for the respondentwould like me to draw an inference that Hari Narain is not at all coming totoe shop. Some persons may have weak memories for the numbers. So,only on this score that tenant did not remember the telephone numberexisting in the shop is no ground to further draw an inference that businessbeing run in the shop is not partnership business of the appellants. Thequestion is whether there exists a genuine partnership. It is not necessarythat tenant as a partner should also continue to remain in the shop and runthe business of partnership. The partnership business could be carried onby the other partner Jagdish Narain on behalf of the tenant Hari Narain. The terms of the partnership deed show clearly that both the partners areequally liable for losses of the partnership business being run in the shop. The partnership business could be carried onby the other partner Jagdish Narain on behalf of the tenant Hari Narain. The terms of the partnership deed show clearly that both the partners areequally liable for losses of the partnership business being run in the shop. Incase a fictitious partnership deed was to be brought into existence the tenantwould not have taken up the liability to share the losses which may occur inthe business being run in the shop in question. One of the clauses of thepartnership also makes it clear that the tenancy rights in the shop in questionwould continue to belong to the tenant but the rent was to be paid by thepartnership firm and on dissolution of partnership possession of the tenancypremises was to be handed over to the tenant and Jagdish Narain was tohave no right or claim to the said tenancy premises. The right to possessthe tenancy premises has not been given up by the tenant. ( 14 ) IN Jagan Nath (deceased) through Lrs. v. Chander Bhan and Ors. , air 1988 SC 1362 , it has been clearly held that it is well settled that partingwith possession meant giving possession to persons other than those to whompossession had been given by the lease and the parting with possession musthave been by the tenant and the user by other person is not parting withpossession so long as the tenant retains the legal possession himself, or inother words, there must be vesting of possession by the tenant in anotherperson by divesting himself not only of physical possession but also of theright to possession. It was emphasized that so long as the tenant retains theright to possession there is no parting with possession in terms of Clause (b)of Section 14 (1) of the Delhi Rent Control Act. In the cited case the tenanthad retired from the business and his sons only were looking after thebusiness. Still it was held that the tenant had the right to displace thepossession of the sons. So, it cannot be said that tenant has legally divestedhimself of legal possession of the demised premises. ( 15 ) IN re: Ambalal Sarabhai, AIR 1924 Bombay 182, it was heldthat the fact that the control of the business is kept with one partner doesnot in any sense negative the existence of partnership according to law. So, it cannot be said that tenant has legally divestedhimself of legal possession of the demised premises. ( 15 ) IN re: Ambalal Sarabhai, AIR 1924 Bombay 182, it was heldthat the fact that the control of the business is kept with one partner doesnot in any sense negative the existence of partnership according to law. Insupport of this proposition that unless legal possession is parted with by thetenant there cannot be any subletting. Counsel for the appellants has citedgundalapalli Rangamanner Chetty v. Dew Rangiah and Others AIR 1954madras 182 and Helper Cirdharbhai v. Saiyed Mohmad Mirasaheh Kadri andothers, AIR 1987 SC 1782 . There is no dispute about the legal propositionof law enunciated in these judgments, ( 16 ) THE learned Counsel for the respondent has argued that noaccount books have been produced by the appellants to prove as to whatwere the initial investment of the appellants in the partnership business. Both the appellants when they appeared in the witness box deposed thatthey have brought the available account books but no question was put incross-examination to the appellants in respect of the genuineness of thoseaccount books. Jagdish Narain had clearly stated that he can give theamount of investment made by each of the partners from the account booksbrought by him but still no question was put in that connection by the respondent. So, it cannot be said that appellants have suppressed the productionof account books in the present case. ( 17 ) IN Banarsi Dass v. Smt. Shakuntala, 1988 (1) Delhi Lawyer 431 (DB), it was held that an adverse inference can only be drawn against aperson who does not produce or offer to produce the account books. In thepresent case the appellants had brought the account books which were available in Court at the time they gave their statements. So, no adverse inference can be drawn against the appellants in not filing the account books incourt when they have produced the account books and in case the respondent though that those account books were fictitious and did not depict truefacts, she could have sought inspection of the account books and cross-examine the appellants pin-pointing any deficiencies which might have existedin the account books. No such steps were taken by the respondent. No such steps were taken by the respondent. So, itcannot be said that any adverse inference can be drawn against the appellantsin the present case for not filing the account books on the record of thecase. ( 18 ) IN view of the above discussion, I hold that judgment of therent Control Tribunal is vitiated with illegality and he was not legally rightin reversing the judgment of the Additional Rent Controller which was wellreasoned and based on evidence available on the record. I hold that groundof eviction covered by Clause (b) of proviso to Sub-section (1) of Section 14of the Delhi Rent Control Act is not made out. ( 19 ) I allow the appeal and set aside the judgment of the Rentcontrol Tribunal and restore the judgment of the Additional Rent Controllerdismissing the eviction petition. Parties are, however, left to bear their owncosts throughout.