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2008 DIGILAW 1678 (PNJ)

Dharamvir v. Khazanchi Dass

2008-09-29

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This is tenants revision against the orders of the authorities under the Rent Act ordering eviction of the petitioners under section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short the Act) on the ground of subletting. 2. The respondent landlord filed a petition under section 13 of the Act in respect of double storeyed shop. It was claimed by the respondent that the premises in dispute were taken on rent at the rate of Rs. 600/- per month w.e.f. 10.5.1980 up to 9.7.1980. It was claimed that the respondent was in arrears of rent from 1.8.1984 to 9.11.1984 along with house tax and also that the tenant-petitioner has sublet the shop without written permission of the respondent as also against the terms of the Rent Note. 3. The application was contested and it was claimed that it was the respondent who failed to receive the rent which, was however, paid on the first date of hearing. It was also the case of the petitioner that the alleged sub tenants were his real brothers. It was claimed that the tenant were running one more shop and could not properly manage two shops, therefore, he entered into a partnership with his brothers for business and he is running the said shop as partner. 3. Learned courts below held that the petitioner has sublet the premises as exclusive possession of the property was handed over to subtenants and ordered eviction of the petitioners. 4. Mr. D.S. Bali, learned senior counsel appearing on behalf of the petitioners vehemently contended that the order passed by the learned authorities below i.e. the learned Rent Controller and learned Appellate\Authority cannot be sustained. He made reference to the document Ex.R.1, i.e. the compromise entered into between the parties in the previous petition on 13.9.1984. 5. The contention of the learned senior counsel was that the respondent landlord in the statement recorded on 13.9.1984 clearly stated that he was informed by the petitioners that the shop in dispute was given to his brothers and in spite of the said statement he had admitted the tenancy of the petitioner and therefore, it could not be said that it was a case of subletting. It was also the contention of the learned senior counsel for the petitioners that there was no evidence brought on record with regard to the parting of possession in favour of sub-tenants who were actually his brothers and having a joint family. The contention of the learned senior counsel, therefore, was that once actual possession was retained by the petitioners the ingredient of subletting was not proved and therefore, the impugned orders cannot be sustained. 6. Learned senior counsel placed reliance on the judgment of this court in the case of Nanak Chand and others v. Bal Kishan, (2000-2) P.L.R. 388 to contend that if the tenant retains control or has the legal possession, in that event, merely because he starts another business is no ground to conclude that he ceased to be in legal possession. 7. It was also the case of the petitioner that when he and alleged tenants were brothers and another shop was opened it cannot be inferred that he ceases to be in legal possession of the disputed premises. 8. Reliance was also placed on the judgment of the Honble Supreme Court in the case of Dev Kumar (Died) through LRs. v. Smt. Swaran Late and Ors., 1996 HRR 13 to contend that in the present case once it was not established from the evidence that the petitioner had parted with possession in favour of his brothers i.e. the alleged tenants the order of eviction could not be sustained. The contention of the learned senior counsel for the petitioner, therefore, was that mere possession of the person other than the tenant in the shop does not prove the case of subletting as long as the control over the premises is kept by the tenant. In order to construe subletting there must be parting of possession for consideration and the burden is on the landlord to prove these ingredients. 9. Mr. Kabir Sarin, learned counsel appearing on behalf of the respondent, on the other hand, vehemently contended that the order passed by the learned courts below are based on appreciation of evidence and do not call for interference by this court in exercise of revisional jurisdiction. 10. Learned counsel for the respondent submitted that it is the admitted case of the petitioner that he is running a business in another shop. 10. Learned counsel for the respondent submitted that it is the admitted case of the petitioner that he is running a business in another shop. It is also proved on record in this case that both the shops have different names and sales tax numbers are also different. The contention of the learned counsel for the respondent, therefore, was that once it was proved that the tenant was running his business at some other place and there was another person sitting to run the shop it has to be presumed that the tenant has sublet the shop as exclusive possession is with third party. 11. In support of this contention learned counsel for the respondent placed reliance on the judgment of this court in the case of Ram Kishan v. Smt. Shanti Devi Bihani and Ors., 1992(2) Rent Control Reporter 456. 12. Learned counsel for the respondent thereafter contended that it has been proved on record that exclusive possession of the shop was with the sub- tenants. The subletting being a secret arrangement between the tenant and sub-tenant once exclusive possession is proved then it was for the tenant to prove that the possession of another person was permissive and without consideration. The contention of the learned counsel for the respondent, therefore, was that in the present case in order to prove permissive possession the petitioner has set up the plea of partnership in which he had shown to sharing profit to the extent of 20 percent. The contention of the learned counsel, therefore, was that the petitioner failed to produce on record accounts book, bank account, contribution of share capital and distribution of property etc. Therefore, the learned courts below were right in coming to the conclusion that it was the case of subletting. 13. In support of this contention learned counsel for the respondent placed reliance on the judgment of this court in the case of Darshana Devi v. Des Raj Singh Thakur, 1997(2) RCR 426, wherein this court has been pleased to lay down as under: "4. There is no dispute about the legal proposition enunciated in the judgments cited by the counsel for the petitioners. There is no dispute about the legal proposition enunciated in the judgments cited by the counsel for the petitioners. It is true that Clause 10 of the Partnership Deed provides that in the event of dissolution of partnership, the premises would go to tenant Darshana Devi but for applying this principle, it has to be established on record that the partnership set up by the tenant is a genuine one. If the partnership is not genuine and is merely a camouflage to conceal the real transaction of sub-letting, then it would be a clear case of sub-letting. In the present case, for proving the partnership, only the Partnership Deed has been produced. Tenant has not produced any other evidence either in the shape of account books or the record of Income-tax and Sales tax to show there is a genuine partnership between her and Harish Chander. The other circumstances brought on the record have also established that it is a clear case of sub-letting and partnership set up by the tenant is not genuine but a sham transaction. Tenancy in this case was created by the (sic.) Prop. M/s. Arvind Industries in October, 1978. Partnership between Darshana Devi and Harish Chander is alleged to have taken place on 1.4.1982. It is the case of tenant herself that Harish Chander is in possession of the premises much prior to the coming into existence of partnership. Tenant, in her statement as RW 2 has stated that prior to 1.4.1982 Harish Chander had been working in the firm as a Manager. She stated that no letter of appointment was given to him. She, however, has not produced any record to prove that Harish Chander has been working in her firm as a Manager. No evidence has been brought on record by the tenant to show the contribution of partners to the capital of partnership business. It has not been shown when and what amount was taken by the partners towards profit. Detail of the bank account maintained by the partnership has also not been furnished. No witness from the bank has been examined to prove that partnership had operated any account in any bank, though Clause 7 of the Partnership Deed provides that bank account of the partnership shall be operated upon by both the partners either jointly or severally or anybody else especially authorised by the partners in this behalf. No witness from the bank has been examined to prove that partnership had operated any account in any bank, though Clause 7 of the Partnership Deed provides that bank account of the partnership shall be operated upon by both the partners either jointly or severally or anybody else especially authorised by the partners in this behalf. It has further not been shown as to how accounts have been maintained. Darshana Devi, in her statement, conceded that she is working as a teaches in Government Primary School since 1980 meaning thereby that she has completely parted with possession as under the Punjab Government Employees (Conduct) Rules, a teacher working in a Government School cannot run any business either in sole proprietorship or in partnership. No record has been produced from the Office of District Education Officer that at the time of joining service, Darshana Devi had been doing any business. In these circumstances, I am of the view that the authorities below have rightly come to the conclusion that the partnership set up by the tenant in defence to the case of sub-letting is only a make believe agreement and has never-been acted upon. 5. It has then been contended by the learned counsel for the petitioners that the landlord has failed to prove that tenant has parted with possession for a valuable consideration. Of course, one of the important ingredients to prove sub-letting is that apart from proving parting with possession it must also be shown that such parting with possession is for consideration but the question arises as to how to prove consideration ? Subletting is generally a secret arrangement between the tenant and sub-tenant and that is why onus is always on the tenant to show the capacity in which alleged sub-tenant is in occupation of the premises. If the landlord proves parting with exclusive possession by the tenant in favour of any other person, it would be for the tenant to prove that the possession of another person is permissive and without consideration. In the present case, as notified above, tenant is a teacher in the Government School, and sub-tenant is carrying business in the premises to the exclusion of tenant. It is difficult to believe that the tenant would have parted with possession without any consideration. In the present case, as notified above, tenant is a teacher in the Government School, and sub-tenant is carrying business in the premises to the exclusion of tenant. It is difficult to believe that the tenant would have parted with possession without any consideration. In any case, tenant has failed to bring cogent evidence on record that possession of Harish Chander is permissive or without any consideration. Consequently, fining of the authorities below in regard to sub-letting calls for no interference." 14. Learned counsel appearing on behalf of the respondent also submitted that in the present case the petitioner failed to produce any document relating to the income tax or sales tax and loss and profit in the business. Thus, the partnership deed set up by the petitioner was rightly held to be a sham transaction. 15. In support of this contention reliance was placed on the judgment of this court in the case of Janak Raj Ahuja v. Navneet Sehgal and Another, 1997 HRR 396 and Sher Singh and others v. Chandu Lal and others, 2003(1) RCR(Rent) 440 : (2003-2) PLR 164. In Janak Raj Ahujas case (supra) this court was pleased to lay down as under : "4. There is no dispute that so long as the tenant continues to be partner in the partnership, there is no sub-letting because being a partner in the business such tenant would be deemed to be in possession of the demised premises. However, in the present case, firstly, it is not the case of the petitioner in the written statement that Respondent No. 2 is his partner but his definite case is that he is his employee, and secondly, both the Courts below have held that partnership alleged is not a genuine one and is merely a camouflage to conceal real transaction of sub-letting. For genuine partnership business real intention of the parties thereto has to be found, conduct of the parties in this regard to be considered. In the instant case, tenant has produced only partnership deed and no other document in the shape of account books etc. as well as records of income tax and sales tax to show genuineness of the partnership-deed. He has also failed to produce the record to show that in a year, profits had not exceeded Rs. 76,000/- or Rs. 1,50,000/- and so, the profit was not shared. as well as records of income tax and sales tax to show genuineness of the partnership-deed. He has also failed to produce the record to show that in a year, profits had not exceeded Rs. 76,000/- or Rs. 1,50,000/- and so, the profit was not shared. The statement of tenant-petitioner, while appearing as RW 2, as has been made available to me by the counsel for petitioner, shows that the tenant in his cross-examination has admitted to have handed over the premises to respondent No. 2 in the month of June, 1984. In his cross- examination, he also stated that he does not remember as to when he has visited the shop last time, he admitted to be correct that all the cash-memos were issued from the shop in Sector 17-C, Chandigarh, even for the sales of goods effected in Sector 8, Chandigarh. He further admitted that in the cash- memos, there is no mention of Sector 8 shop. He further admitted that he did not furnish any information to the Labour Department that, Respondent No. 2 is his employee. Tenant-petitioner also failed to produce any record to show that a sum of Rs. 5,000/- was invested by Respondents No. 2, as finds mention in the partnership deed. In my view, from the statement of tenant himself, it has rightly been found by the Authorities below that tenant has failed to prove that Respondent No. 2 is his employee and the partnership-deed is not a genuine one. In this view of the matter, no interference is called for in the finding of the Authorities below." 16. Learned counsel for the respondent also placed reliance on the judgment of this court in the case of Nagin Chand v. Smt. Kaushalya Devi and Ors., 1985(2) Rent Control Reporter 577 to contend that the share of the petitioner in the partnership was minor and therefore, the partnership was only camouflage to avoid ejectment. 17. Learned counsel for the respondent also placed reliance on the judgment of Honble Supreme Court in the case of Rameshwar Lal & Anr. v. Raghunath Das and Ors., 1991 HRR 287 to contend that the concurrent finding of fact regarding subletting could not be interfered with in review. This contention of the learned counsel for the respondent cannot be disputed. Learned counsel for the respondent also placed reliance on the judgment of Honble Supreme Court in the case of Rameshwar Lal & Anr. v. Raghunath Das and Ors., 1991 HRR 287 to contend that the concurrent finding of fact regarding subletting could not be interfered with in review. This contention of the learned counsel for the respondent cannot be disputed. However, in a given case if the finding recorded are perverse and are not being capable being arrived at on appreciation of evidence then in exercise of revisional jurisdiction under the Rent Act this court can always interfere. The powers of revision under Rent Act are much wider than under section 115 of the Code of Civil Procedure. 18. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the petitioners whereas the contentions raised by the learned counsel for the respondent deserve to be accepted. 19. In the present case it is admitted by the petitioner tenant that he was running a separate shop and in the present shop his brothers are running business along with him in the partnership. It is also proved on record that the share of the petitioner is only 20 per cent. 20. The petitioner failed to produce the accounts books, bank account, contribution of share capital and distribution of property etc. to prove that the partnership was genuine. The courts below, therefore, rightly came to the conclusion that partnership deed was a camouflage to avoid eviction. Parting of exclusive possession also stands proved and therefore, it has to be presumed that it was for consideration. 21. Consequently, finding of fact recorded by the learned courts below holding the subletting proved are based on appreciation of evidence. Nothing has been shown as to how the said findings can be said to be perverse or not capable of being arrived at. 22. Thus, finding no merit in the revision petition the same is dismissed but with no order as to costs.