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2011 DIGILAW 1589 (RAJ)

Chain Singh v. Mahendra Singh

2011-08-04

VINEET KOTHARI

body2011
JUDGMENT 1. - This second appeal of defendant-tenant is directed against the concurrent decree of eviction against the appellant-defendant on the ground of sub-letting under section 13 (1) (e) of the Rent Control Act. 1950. 2. The facts in nut shell are like this. The suit shop in question situated at Residency Road, Udaipur was let out to Chain Singh S/O Sagat Singh for carrying on the business as Narayan Dudh Bhandar. The suit was filed in the year 1988 for eviction inter alia on the ground of default and sub-letting. The learned Trial Court decreed the suit 232/1988, Mahendra Singh v. Chain Singh and another, on 22.8.1994 and while giving the benefit of first default, granted decree of eviction on the ground of sub-letting in favour of one Prem Singh S/o Bakhtawar Singh. The Courts below have found that licence under the Prevention of Food Adulteration Act in respect of business of selling milk and milk products at the suit premises was in the name of the sub-lettee Prem Singh S/o Bakhtawar Singh and even though the shop in question was let out by Kesar Bai, mother of the plaintiff Mahendra Singh S/o Sohan Lai way back in the year 1968, the said Chain Singh was not actually carrying on the business of sale of milk and milk products, but since 1988. said sub-lettee Prem Singh was carrying on the said business under the licence and registration issued in his favour on 31.3.1974. The substantial question of law framed at the time of admission are reproduced as under:- (1) Whether the learned Appellate Court was right in holding that the burden of proof shifted to the defendant with the failure of the plea of partnership set up by him? (2) Whether the Court could pass a decree on the ground under section 13 (1) (e) of the Rajasthan Premises (Rent Control and Eviction) Act without finding as a fact that exclusive possession was handed over by the tenant to the alleged sub-tenant? (3) Whether the Lower Courts have adopted a wrong approach towards the case while deciding the question of sub-letting? (4) Whether in the facts and circumstances of the decree on the ground under section 13 (1) (e) of the Act could be sustained? 3. (3) Whether the Lower Courts have adopted a wrong approach towards the case while deciding the question of sub-letting? (4) Whether in the facts and circumstances of the decree on the ground under section 13 (1) (e) of the Act could be sustained? 3. The defence set up by the defendant-tenant that since Prem Singh was working with the original tenant Chain Singh in the capacity of his servant and was also distant relative and that they had entered into oral partnership and and profit from business of said sale of milk and milk products were shared equally between the two, was not believed by the learned Courts below and on the basis of evidence recorded by the learned Trial Court in the form of P.W. 1 Sohan Lai, P.W. 2 Satya Pal and P.W. 3 Sunil Agarwal on behalf of the plaintiff and D.W. 1 Chain Singh, D.W.2 Lalu Ram, D.W.3 Prem Singh and D.W.4 Bhanwar Lai on behalf of the defendants, the learned Court below held that partnership between the two was not proved and since the said sub-lettee, Prem Singh was found to be in possession of shop in question, it was a case of subletting and parting with the possession of the suit ship in question by the original tenant, Chain Singh and said Prem Singh was carrying on the business in the suit shop and therefore, the learned Court below decreed the suit of eviction under section 13 (1) (e) of the Act. The mesne profit of is 80/- per month was fixed and arrears of rent were to be paid with 6% interest in the decree dated 22.8.1994. 4. The first Appellate Court upheld the decree in appeal filed by the tenant and rejected the said appeal vide judgment dated 26.4.1997. The learned first Appellate Court of ADJ No. 1. Udaipur also similarly held that licence for sale of milk products was only in the name of defendant No. 2 Prem Singh and, therefore, no inference of partnership could be drawn. 5. Learned Counsel for the defendant-appellant-tenant, Mr. Manish Shishodia relying upon a decision of a Co-ordinate Bench of this Court in the case of Babu Lal v. RaJendra Singh and others, 2007 (3) WLN 506. 5. Learned Counsel for the defendant-appellant-tenant, Mr. Manish Shishodia relying upon a decision of a Co-ordinate Bench of this Court in the case of Babu Lal v. RaJendra Singh and others, 2007 (3) WLN 506. (Para 16) contended that since the Rajasthan Rent Control Act, 1950 envisaged the concept of sub-letting "without permission" since alleged sub-lettee, Prem Singh has been carrying on the business in the suit premises for long period, the landlord should be deemed to have waived or given consent to such subletting and for this reason also, the eviction could not be ordered. He also contended that the original tenant, Chain Singh has not parted with possession in favour of Prem Singh to his own exclusion and both were partners acting under an oral partnership and the Court below has erred in rejecting the said premise without any valid reason. He further submitted that even though the licence was only in the name of Prem Singh, it does not rule out that both were carrying on the business in partnership. In the case of Babu Lal (supra), in para 16, the Co-ordinate Bench has held as under:- "16. There are identical provisions prohibiting sub-letting enacted in various Rent Control Legislations of different States and language of different statutes is different worded inasmuch as many of the statutes prohibit sub-letting "without written consent". Some statutes prohibit subletting "without prior written consent". While some statutes only prohibit sub-lettings "without permission". The Rajasthan Rent Control law falls in the last category. The cases where the statute prohibits sub-letting without previous written consent, by implication exclude applicability of the principle of acquiescence or waiver. The second category of statutes, I do not propose to deal with at this juncture as it is not relevant. Coming to the third category of statutes. I find that in Matiabir Singh v. Anant Ram, AIR 1966 ALL. 1214 . while dealing with the case of sub-letting, it was found in second appeal that landlord had admitted in his cross-examination that Chhota had been living as sub-tenant for four years, though he had seen him the house during this period, though he had paid rent to the appellant in his presence, and that on occasions the money paid by Chhota to the appellant in his presence was passed on to him. On these facts, High Court held that the Court shall presume, from the landlord's conduct that he had acquiesced in the sub-tenancy." 6. The facts of the said case are clearly distinguishable because the plaintiff-landlord in the said case received rent from D.3 regularly and the fact of living of D. 1 and D. 2 at different place and D.3 in the suit premises was in the,knowledge of the plaintiff for long period, and therefore, the consent was inferred by this Court. The said judgment is clearly not applicable to the facts of the present case. 7. Per contra, the learned Counsel for the respondent-plaintiff-landlord, Mr. Sandeep Shah relying upon the following judgments urged that where the partnership is not proved by the defendant-tenant with any written instrument of partnership, no such inference could be drawn on the basis of oral statement. He further submitted that since the licence under the Prevention of Food Adulteration Act was only in the name of sub-lettee Prem Singh, and he was carrying on the business to the exclusion of original tenant Chain Singh, therefore, the sub-letting was proved by the plaintiff-landlord. He submitted that against the concurrent decree of two Courts below, no substantial question of law arises in the matter and the defendant - appellant has managed to remain in possession over the suit shop uptil now for the paltry sum of mesne profit of Rs. 80/-. 8. In the case of Mohd. Kasam Haji Gulambhai v. Bakerali Fatehalil, AIR 1998 SC 3214 , the Hon'ble Supreme Court held that where the tenant was carrying on the business in the partnership with sons and the tenant father retired from the firm and, new partnership consisted only of his sons running the same business in the suit shop, still it amounted to sub-letting by the plaintiff father to his sons and the eviction decree was upheld by the Apex Court. 9. In the case of Parvinder Singh v. Renu Gautam, 2004 (19) AIC 377 (SC) = AIR 2004 SC 2299 , the Apex Court held that upon death of original tenant, his heirs not only inherit tenancy, but also rights and obligations of tenancy and where successor-in-interest entering into partnership business in leased premises with stranger, it amounted to sub-letting and breach of obligation of tenancy and in such case, eviction decree against the tenant was justified. 10. 10. On the issue of consent for landlord for the said sub-lettee, Prem Singh carrying on the business in the suit premises, the learned Counsel for the respondents, Mr. Shah relied upon the case of Gappu Lal v. Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291 in which in pars 6 of the said judgment, the Apex Court held that permission for sub-letting cannot be inferred and realisation of rent by the landlord after sub-letting of premises with the knowledge of sub-letting is essential to infer such consent. No such consent of landlord has been proved in the present case. 11. In the case of M/s. Shalimar Tar Products v. H.C. Sharma, AIR 1988 SC 145 (1) , the Apex Court held that consent of landlord in such case of sub-letting must be in writing and must be specific and such a requirement of law cannot be regarded as mere directory and same cannot be waived either. 12. In the case of M/s. Bharat Sales Ltd. v. Life Insurance Corporation of India, AIR 1998 SC 1240 , the Apex Court held that affirmative evidence as to payment of monetary consideration by sub-tenant is not necessary and sub-letting can be inferred from proof of delivery of exclusive possession. 13. In the case of P. John Chandy and Co. (P) Ltd. v. John. P. Thomas, AIR 2002 SC 2057 , dealing with the case under the Kerala Buildings (Lease and Rent Control) Act, 1965, the Apex Court held that mere inaction on the part of landlord to evict tenant would not be sufficient to amount to implied consent of landlord for such sub-letting and relying on these judgments, the learned Counsel for the plaintiff urged that in absence of partnership between the two having been proved, no such consent of sub-letting on the part of the plaintiff-respondent could be inferred and therefore, the findings of sub-letting returned by the Courts below are perfectly justified and substantial questions of law framed by this Court deserve to be answered in favour of the plaintiff respondent and hence the present second appeal deserves to be dismissed. 14. 14. Having heard learned Counsels for the parties, this Court is of the considered opinion that there is no force in the present appeal of the defendant-appellant and the learned Trial Court has rightly come to the conclusion that it was a case of sub-letting by the original tenant, Chain Singh in favour of sub-lettee, Prem Singh. No evidence of partnership was brought before the learned Courts below, which could be only in the form of a written instrument duly registered under the Partnership Act. Even if assuming for arguments sake that oral partnership was there, no Books of Accounts for sharing of profit equally by them and mutuality of acting on behalf of other, was proved before the learned Courts below. Mere close relations of two, cannot be held to be a case of implied partnership. The sub-lettee, Prem Singh was admittedly running a "Pan" shop near the suit premises. The parting of possession to the exclusion of the original tenant thus was proved by the plaintiff-respondent in the present case and, therefore, the eviction decree deserves to be upheld. The substantial questions of law are thus answered in favour of plaintiff-respondent and against the defendant-appellant-tenant. 15. The present second appeal is accordingly dismissed with no order as to costs. The possession of the suit property. shop in question be handed over to plaintiff-respondent within a period of six months from today. The defendant-appellant shall pay mesne profit from the month of August, 2011 Rs. 5,000/-per month till the actual possession of the shop is handed over to the plaintiff-respondent. If the defendant-tenant and sublettee, Prem Singh fail to hand over the peaceful and vacant possession of the suit shop to the respondent-landlord within six months or fail to pay mesne profit as directed above regularly, the plaintiff shall not only be entitled to execute the decree but besides execution of the decree, the plaintiff-respondent shall also be entitled to invoke contempt jurisdiction of this Court. No costs.Appeal dismissed. *******