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Madhya Pradesh High Court · body

2006 DIGILAW 950 (MP)

Yasin Ali v. Gafoor Mohammad

2006-08-03

A.K.SHRIVASTAVA

body2006
JUDGMENT 1. This is plaintiffs' second appeal whose suit has been dismissed by the trial court and the appeal has also been dismissed by learned first appellate Court. 2. The plaintiffs who are appellants in this appeal filed a suit for eviction against the defendants on the grounds envisaged under section 12(1)(a), (b), (c) and (f) of the M.P. Accommodation Control Act. 1961 (in short "the Act"). 3. The original plaintiffs are Yasin Ali and Asgar Ali whose LRs are appellants. The suit for eviction was filed against defendants Gafoor Mohammad, Mohammad Sageer and Mohammad Zahoor. According to the plaint averments, defendant No.1 Gafoor Mohd is the tenant of plaintiffs. He is in the habit of not making payment of rent and depositing the rent in time. He (defendant No.1) without the consent of the plaintiffs, has sub-let the suit premises to defendants 2 and 3 Mohd. Sageer and Mohd. Zahoor. Defendant No.2 Mohd. Sageer is running a pan shop and paying rent at the rate of Rs.150/- per month to defendant No.1 Gafoor Mohd., the said portion which has been sub-let has been shown in green colour in the plaint map. Similarly, the portion which has been shown in blue colour in the plaint map has been sub-let by defendant No.1 to defendant No.3 at the monthly rent without any consent of plaintiffs and thus the defendants are liable to be evicted under section 12(1)(b) of the Act. 4. The defendant No.1 is running a hotel (restaurant) in the building and he is using bhatti (furnace) which is causing extensive damage to the building and thus plaintiffs are also seeking decree under clause (c) of section 12(1) of the Act. The plaintiffs also require the suit premises bona fide to start business of building material, sanitary ware, tiles and cement in the suit premises. 5. Defendant No.1 Gafoor Mohd. filed separate written statement though other defendants Mohd. Sageer and Mohd. Zahoor filed a joint written statement. The crux of the written statements filed by the defendants is that no ground is made out for eviction. Defendant No.1 did not sublet the suit accommodation to defendants 2 and 3. The pleadings in regard to other grounds of eviction were also denied. 6. Sageer and Mohd. Zahoor filed a joint written statement. The crux of the written statements filed by the defendants is that no ground is made out for eviction. Defendant No.1 did not sublet the suit accommodation to defendants 2 and 3. The pleadings in regard to other grounds of eviction were also denied. 6. The trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit since none of the grounds of eviction was found to be proved. The appeal which was preferred by the plaintiffs has also been dismissed by the impugned judgment and decree. Hence, this second appeal is at the instance of the plaintiffs. 7. This Court on 3.9.2001 admitted the second appeal only on the ground of subletting and framed the substantial question of law as under: "Whether on the facts and in the circumstances of the present case it can be held that defendant No.1 has sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise?" 8. It has been argued by Shri N.K. Patel, learned counsel for the appellants, that in para 4 of the plaint there is specific pleading of the plaintiffs in regard to sub-letting the suit shop of defendants 2 and 3. By inviting my attention to para 16 of the written statement filed on behalf of defendant No.1 it has been contended by the learned counsel that it is the case of defendant No.1 that on account of great loss in the business of hotel (restaurant), the defendant started business of manihari (grocery). Consequently he contacted defendant No.3 to help him in the new business, who on persuation agreed to help him in the new business of manihari on the condition that defendant No.1 would allow him to enter in the said business as a partner. By inviting my attention to the amended pleading made in para 16( a) of the written statement of defendant No.1, it has been argued by Shri Patel that on account of great loss in the business of grocery, said business was closed and the business of hotel (restaurant) was again started in the suit accommodation. It has also been put forth by him that a part of the suit shop has been given to defendant No.2 Mohd. Sageer in which he is running the business of betel shop. It has also been put forth by him that a part of the suit shop has been given to defendant No.2 Mohd. Sageer in which he is running the business of betel shop. By inviting my attention to Single' Bench decision of this Court Noor Mohammad v. Radheshyam and others [ 1996 MPLJ 1076 ], it has been submitted that since another business was started by inducting a third person, it would amount to sub-letting. By placing reliance on another Single Bench decision of this Court in Dhanya Kumar Jain v. Mata Prasad Gupta and another [ 2001(2) MPLJ 497 ], it has been argued that it is difficult to give direct evidence in regard to the acceptance of rent and the terms and conditions of sub-tenancy since it is the subject which is best known to the tenant and subtenant and not the landlord. In this view of the matter it has been argued that this appeal be allowed and suit of the plaintiffs be decreed under section 12(1)(b) of the Act. 9. Refuting the aforesaid submissions, it has been argued by Shri Mohd. Younus, learned counsel appearing for respondent No.1 that if the testimony of plaintiff Yasin Ali (PW1), and specially paras 19 and 21, is considered in proper perspective it is difficult to uphold the contention of learned counsel for the appellants that defendant No.1 has sub-let the suit accommodation because the plaintiff No.1 himself has admitted that both the rooms are in possession of defendant No.1. By inviting my attention to the evidence of PW2 Tafajzul Hussain, PW3 Gulam Rasool and PW 4 Mohd. Yousuf, it has been argued by learned counsel that plaintiffs own witnesses have admitted that defendant No.1 is carrying on the business in the suit accommodation and, therefore, the question of sub-letting the suit premises does not arise. By placing reliance on the decisions of the Supreme Court in Jagannath v. Chanderbhan and others [ AIR 1988 SC 1362 ], and M/s. Delhi Stationers and Printers v. Rajendra Kumar [1990(II) MPWN 1 = AIR 1990 SC 1208 ], it has been argued by learned counsel for the respondent No.1 that since all the witnesses of the plaintiffs have admitted the factum of carrying on the business in the suit premises by defendant No.1 himself, no ground of eviction under section 12(a)(b) of the Act is made out. By inviting my attention to the evidence of plaintiffs' witnesses it has been argued by learned counsel for respondent No.1 that from the evidence of plaintiffs' own witnesses it is borne out that defendants 2 and 3 are not the sub-tenants, but they are servants of defendant No.1 and they are helping him to Carry on the business. 10. By replying the submission of learned counsel for the appellants that if a suit is filed under clause (b) of section 12(1) of the Act a negative burden lies on the tenant, it has been submitted by Shri Younus, learned counsel for the respondent No.1 that since parties have led their evidence on each issue in detail, the question on which party the burden of proof lies loses its significance. In support of his contention, learned counsel has placed reliance on Single Bench decision of this Court of R.C. Lahoti, J. as his Lordship then was in Parmal v. Gyasia [ 1993(1) MPWN 167 ]. 11. Regarding substantial question of Law: The plaintiffs have pleaded about the sub-tenancy in para 4 of the plaint, according to which the defendant No.1 has sub-let a portion of the suit premises to defendant No.2 in which he is carrying on the business of pan shop and that portion has been shown in blue colour has been sublet to defendant No.3. However, the plaintiffs have failed to plead that what type of business defendant No.3 is carrying on in the said blue coloured portion. The factum of sub-letting these two portions by defendant No.1 has been specifically denied by him in para 4 of his written statement by replying the averments of the plaintiffs in para 4 of the plaint in that regard. True, in para 16 of the written statement it has been pleaded by him that since he has suffered a loss in the business of hotel (restaurant) and as he wanted to start another business also in another room, he (defendant No.1) was in search of a person who could help him in the new business of manihari (grocery). Eventually he contacted defendant No.3 to help him in the new business and on his persuation defendant No.3 agreed to help him in the business of manihari (grocery), provided he would enter him in the said business as a partner. Thus, he is running a business under the partnership with defendant No.3. Eventually he contacted defendant No.3 to help him in the new business and on his persuation defendant No.3 agreed to help him in the business of manihari (grocery), provided he would enter him in the said business as a partner. Thus, he is running a business under the partnership with defendant No.3. One important fact which cannot be marginalized and blinked away is that the defendant No.1 has specifically pleaded in this para 16 that entire tenanted premise is in his exclusive possession and he is having entire control over it. It would be quite relevant to quote that portion of para 16 of the written statement which reads thus: "16. The whole premises are in possession of defendant No.1 exclusively with full control. He is his partner only in articles of business." By way of amendment, para 16(a) was added in the written statement and it has been pleaded by defendant No.1 that in the business of manihari (grocery) also he suffered a great loss and the said business was closed and he again started the old business of hotel (restaurant) in the whole premises as before. Again in this para he has pleaded that he was and is in continuous possession of the whole premises and is exercising all rights over the suit accommodation. 12. The pleadings are proved by defendant No.1 in his evidence. On going through the testimony of this witness nowhere it is gathered that he is not in possession of the suit property or has lost control over the same. In para 16 of the written statement also he has specifically pleaded that only in the business defendant No.3 is a partner. In the case of Mahendra Saree Emporium(II) v. C.S. Srinivasa Murthy [ (2005) 1 SCC 481 ], it has been held by the Supreme Court that a transfer of a right to enjoy the property concerned to the exclusion of others during the term of the lease is a sine quo non of a lease. A sub-lease would imply parting with the said right in favour of the sub-tenant by the tenant. By placing reliance on earlier decisions Krishnawati v. Hansrahj [ (1974)1 SCC 289 ], and Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [ AIR 1968 SC 933 ], it was held that onus to prove sub-letting is on the landlord. A sub-lease would imply parting with the said right in favour of the sub-tenant by the tenant. By placing reliance on earlier decisions Krishnawati v. Hansrahj [ (1974)1 SCC 289 ], and Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh [ AIR 1968 SC 933 ], it was held that onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. The Supreme Court, after placing reliance on earlier decisions Murlidhar v. Chunilal [1970 Rent Control Journal 922], Helper Girdharibhai v. Saiyed Mohd. Mirasaheb Kadri [ (1987) 3 SCC 538 ] and Parvinder Singh v. Renu Gautam [ (2004)4 SCC 794 ], has categorically held that if a tenant is becoming partner to carry on business in the suit premises and he himself is retaining the legal possession of the same it would not amount to sub-letting. In the present case also since there is a specific pleading of defendant No.1 in para 16 of his written statement and which has been substantiated by him in his testimony, it is proved that since, he was suffering a great loss in the hotel (restaurant) business, he started business of grocery in the partnership of defendant No.3, but he was possessing and having control over the entire suit premises. The finding in regard to existence and determination of partnership is a mixed question of fact as held by the Supreme Court in the case of Helper Girdharibhai (supra). In view of the decisions of Supreme Court it is not necessary to discuss the decision of learned Single Bench of this Court Noor Mohammad (supra). 13. Thus, according to the view expressed by the Supreme Court, the initial burden was on the plaintiffs to prove that the suit premises were sub-let by defendant No.1 to defendant No.3. In view of the abovesaid decisions, Single Bench of this Court in the case of Dhanya Kumar Jain (supra), in which it has been held that negative burden is on tenant to prove that tenanted premises were not sub-let, need not be discussed. Apart from this, there is cogent evidence of defendant that he had not at all sub-let the suit premises and is having possession and exclusive control over suit premises. Apart from this, there is cogent evidence of defendant that he had not at all sub-let the suit premises and is having possession and exclusive control over suit premises. In the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others [ AIR 1960 SC 100 ], it has been held by the Supreme Court that after adducing evidence by the parties, burden of proof loses its importance. In the case of Parasnath Thakur v. Smt. Moham Dasi [ AIR 1959 SC 1204 ], it has been held by the Supreme Court that in case both the parties adducing their evidence, onus of proof loses much of its importance. The same principle has been reiterated by R.C. Lahoti, J., as his Lordship then was, in the case of Parmal (supra). There is much force in the submission of learned counsel for the respondent No.1 that for all the times the possession of the suit premises and its control was of defendant No.1. In this context he has rightly invited my attention to paras 19 and 21 of the statement of plaintiff Yasin Ali wherein the plaintiff himself has admitted that in both the rooms defendant No.1 is running the business of hotel (restaurant). In para 11 PW 2, Tafajzul has said that right from the very beginning defendant No.1 is carrying on the business of hotel and still he is continuing the said business along with his son. Another witness of the plaintiffs, PW3 Gulam Rasool in para 4 has admitted that defendant No.1 is carrying on the business in two rooms and Mohd. Yousuf (PW 4), who is another witness of the plaintiffs, in para 8 of his testimony has stated that since beginning when defendant No.1 Gafoor Mohd. started the business, there is a pan shop in it. Thus, the plaintiffs own witnesses and plaintiff No.1 himself admit that defendant No.1 is possessing the suit property and he is having control over it. If that would he the position, the question of sub-letting does not arise. 14. started the business, there is a pan shop in it. Thus, the plaintiffs own witnesses and plaintiff No.1 himself admit that defendant No.1 is possessing the suit property and he is having control over it. If that would he the position, the question of sub-letting does not arise. 14. Learned counsel for the respondent No.1 rightly placed reliance on the decision of the Supreme Court in Jagannath (supra), in which the Supreme Court has held that it is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The apex Court further held that so long as the tenant retains the right to possession there is no parting with possession. Similar is the view of the Supreme Court in the decision of M/s. Delhi Stationers and Printers (supra). 15. There is no merit in the contention of learned counsel for the appellants that because defendants 2 and 3, who have been stated to be sub-tenants by the plaintiffs, have not entered in the witness box and have not examined themselves it would mean that they are sub-tenants. I have already discussed hereinabove about the statements of plaintiff and his witnesses and have come to the conclusion that defendant No.1 was having possession and control over the entire suit property. Thus, even if defendants 2 and 3 have not been examined, in the peculiar facts and circumstances of the case, no adverse inference could be drawn. As a matter of fact, on the basis of preponderance of probability civil cases are to be decided and the circumstances which I have mentioned hereinabove give rise to a high degree of preponderance of probability in order to decide that defendants 2 and 3 are not the sub-tenants. As a matter of fact, on the basis of preponderance of probability civil cases are to be decided and the circumstances which I have mentioned hereinabove give rise to a high degree of preponderance of probability in order to decide that defendants 2 and 3 are not the sub-tenants. Full Bench of this Court in case of Gulabchand Gambhirmal v. Kudilal Govindram Seksaria [ 1959 JLJ 78 = 1960 MPLJ 334 ], has categorically held that in civil cases preponderance of probability constitutes a sufficient ground for a decision, if the facts and circumstances are such that a reasonable man would draw a particular inference from them. If there is evidence strongly preponderating in favour of anyone of the theories set up, the Court is entitled to set upon it. 16. In the present case the Courts below after appreciating the evidence came to hold that no case is made out by plaintiffs that the suit property was sub-let to defendants 2 and 3. I have gone through the reasonings assigned by learned Courts below and I find them to be quite cogent as they are based on appreciation of evidence placed on record. The substantial question of law is thus answered that in the facts and circumstances of the present case it cannot be held that defendant No.1 has sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise to defendants 2 and 3. 17. Resultantly, this appeal is found to be bereft of any substance and the same is dismissed with costs. Counsel's fee Rs.l,500/-, if pre-certified.