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1996 DIGILAW 567 (MP)

Noor Mohammad v. Radheshyam And Ors.

1996-07-05

T.S.DOABIA

body1996
JUDGMENT T.S. Doabia, J. 1. The learned counsel appearing for the landlord has made a statement. According to him, that appellant is no longer in possession, of the disputed premises. He states that possession of premises is with him. The learned counsel appearing for the appellant however, is unable to say anything on this aspect of the matter. Therefore, I have proceeded to decide the appeal on merits. 2. A suit for eviction was filed under Section 12(1) (a), (b) and (f) of the Madhya Pradesh Accommodation Control Act, 1961. The ground for eviction which ultimately prevailed with the trial Court was that the appellant had sub-let the premises to one Mohammad Ismile. It was also found that a case of bona fide requirement was made out. It was held that the premises were in fact required for the son of the landlord. 3. The First Appellate Court came to the conclusion that the plea regarding bona fide requirement was not made out. However, a finding was recorded that the premises were in fact sub-let. It is against the above finding recorded by the First Appellate Court, the present appeal has been preferred. 4. It be seen that for sustaining the plea of sub-letting, it was pleaded that one Mohammad Ismile was inducted on the premises. Initially the business of tailoring was being carried. Later on, Mohammad Ismile came in possession of the premises, entirely different business was started. This was repairing and sale of shoes. It was also pleaded that Mohammad Ismile had been inducted as a partner and this creation of partnership would bring the case within the purview of sub-letting. The plea taken by Noor Mohammad tenant was that there is no sub-letting. It was pleaded that there was a partnership between him and Mohammad Ismile. It was pleaded that his son who was looking after the business of tailoring had gone to Delhi. Later on he came back. Mohammad Ismile was inducted as a partner and business of shoe repairing and sale thereof was started. 5. It was the above factor, which was taken into consideration with a view to record a finding that there was sub-letting of the premises. 6. The learned counsel appearing for the appellant has argued that this is not a case of sub-letting. According to him if a person is inducted as partner then no sub-letting can be inferred. 5. It was the above factor, which was taken into consideration with a view to record a finding that there was sub-letting of the premises. 6. The learned counsel appearing for the appellant has argued that this is not a case of sub-letting. According to him if a person is inducted as partner then no sub-letting can be inferred. For this, reliance is being placed on the decision given by the Supreme Court in the case reported as Girdharbhai v. Saiyed Mohammad, AIR 1987 SC 1782 . 7. I am of the view that the decision given by the Supreme Court of India in the case referred to above would not apply to the facts of this case. In the above case, the tenancy was leased out for manufacturing cloth in the name of Ahmedabad Fine and Weaving Works. Later on a new partner was inducted. It was accordingly held that there was no sub-letting. The observation made in this regard in para 5, be noticed. This reads as under : "The main question in issue in this appeal as well as before the High Court in revision was whether there was a genuine partnership at all in which the appellant was a partner. It is true that since after 4th of October, 1960 the partnership firm was carrying on business in the premises in question. It is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to sub-letting leading to the forfeiture of the tenancy. For this proposition see the decision of the Gujarat High Court in the case of Mehta Jagjivan Vanechand v. Doshi Vanechand Harakhchand, AIR 1972 Guj. 6 . Thakkar, J. of the Gujarat High Court as the learned Judge then was held that the mere fact that tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assignment or sub-letting in favour of the partnership firm entitling a landlord to recover possession. This view is now concluded by the decision of this Court in Madras Bangalore Transport Co. (West) v. Inder Singh, (1986) 3 SCC 62 = AIR 1986 SC 1564 ." 8. As indicated above there cannot be any dispute with the proposition laid down by their Lordships of the Supreme Court of India in the above case. This view is now concluded by the decision of this Court in Madras Bangalore Transport Co. (West) v. Inder Singh, (1986) 3 SCC 62 = AIR 1986 SC 1564 ." 8. As indicated above there cannot be any dispute with the proposition laid down by their Lordships of the Supreme Court of India in the above case. In the present case, when the tenancy was given, only Noor Mohammad was carrying on the business of tailoring . His son was helping him. After his son left for Delhi, Noor Mohammad inducted Mohammad Ismile and the business of shoe repairing and selling was started. This induction of Mohammad Ismile at a later stage would not bring the case within the ratio of the decision of the Supreme Court of India. It is a case where person has been inducted for the first time in the premises in question. He has not been inducted in the partnership business. As a matter of fact there was no earlier partnership. The tenancy was in favour of Noor Mohammad only. If a stranger is inducted on the premises and that person starts a different business then it can safely be said that the premises were in fact sub-let. 9. The agreement provided that the tenant could sub-let the premises without the consent of the landlord to an associate concern. The tenant parted with possession in favour of another company. It was held that this would be a case of sub-letting. Bajaj Auto Limited v. Bihari Lal Kohli, AIR 1989 SC 1860. 10. The eviction was sought on the ground of sub-letting. The sub-tenant was carrying on business in the name of the firm of the tenant and was paying rent in the same name. Later on, the name of the firm was changed but rent was being paid in the name of the earlier firm. It was held that the sub-tenancy was never accepted by the landlady and as such he was liable to eviction. Shanti Devi v. Om Prakash, (1991) 9 Punjab Legal Reports and Statutes 461. 11. Where the possession is with a stranger the inference can be drawn that there is sub-letting. Gurdial Khanna v. Smt. Malti Devi, AIR 1993 All. 90 . 12. The widow of the tenant set up a plea that she had merely entered into a partnership with the alleged sub-tenant. 11. Where the possession is with a stranger the inference can be drawn that there is sub-letting. Gurdial Khanna v. Smt. Malti Devi, AIR 1993 All. 90 . 12. The widow of the tenant set up a plea that she had merely entered into a partnership with the alleged sub-tenant. No material was placed on the record to indicate as to how much amount was invested by her. He was not entitled to take part in the affairs of the partnership and her share was stated to be nominal. Under the circumstances it was held that the plea of sub-letting was substantiated and the tenant was liable to eviction on the ground of sub-letting as well. Basant Kaur v. Shanti Devi, (1991) 9 Punjab Legal Reports and Statutes 346. 13. The premises were let to a tenant in his individual capacity. The tenant formed a partnership firm and some of the receipts were issued by the firm. It was held that the firm would not become the tenant. Ram Dial v. Raghu Nath Prashad, 1992 (2) Rent Control Reporter 519.7 14. In this case the tenant failed to establish that there existed some partnership. The, tenancy was in favour of the appellant in his individual capacity. He inducted another person who started a new business. 15. As such, appeal is found to be without merit and is dismissed. There would be no order as to cost.