JUDGMENT N.V.ANJARIA - The applicant herein is the original landlord. He succeeded in getting decree of eviction against the respondent No.1-tenant, on the ground of subletting the rented premises. The lower appellate court reversed the decree of the trial court. Therefore, the applicant-original plaintiff is before this court by filing this Civil Revision Application under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates control Act, 1947 (hereinafter referred to as the `Rent Act' for sake of brevity), seeking to challenge the judgment and order of the Appellate Bench of Hon'ble Small Causes Court passed in Civil Appeal No. 210 of 1999 dated 14th July 2003. 2. The profile of facts may be noted. H.R.P. Civil Suit No. 1525 of 1991 instituted by the applicant-plaintiff before the Small Cause Court No.6, Ahmedabad, was for decree of eviction on two-fold grounds that the tenant-defendant No.1 was in arrears of rent and that he had sublet the premises. The premises was a shop bearing Municipal Census No. 245/2 situated in Raipur area, Near Bhut-ni-Ambli, Opp. Panchtad-ni-Pol, Near Pathan-ni-Masjid, Ahmedabad. It was rented to defendant No.1 at a monthly rent of Rs.40/-plus all the taxes, electricity charges, etc. payable by the tenant. It was the case of the plaintiff that the premises was given to the defendant for his personal business. It was alleged that in order to have big paghari and amount of rent, the premises was sublet in favour of defendant No.2. It was the case that the defendant was running business of selling bangles in the shop which was afterwards closed. Thereafter, the shop came to be sub-let. The trial court by judgment and decree dated 29.10.1999 negatived the ground of arrears of rent, but decreed the suit of the plaintiff on the ground of sub-letting under section 13(1)(e) of the Rent Act. Whether there was an act of sub-letting by respondent No.1 in favour of defendant No.2 is the only focal point in the case to be considered. 2.1 In the Written Statement (Exh. 33) defendant No.1 contended with reference to the ground of subletting inter alia that he had entered into a partnership business with defendant No.3 and the partnership deed dated 1st April 1978 (Exh.58) was executed. It was further contended that later disputes arose between defendants Nos. 2 and 3 the partners and the suit for dissolution of the firm was also instituted. It was further contended that later disputes arose between defendants Nos. 2 and 3 the partners and the suit for dissolution of the firm was also instituted. It was therefore contended that there was no sub-letting. It was denied that he was taking rent from defendant No.2. Defendant No.2 also filed his written statement at Exh.25 in which he denied the case of the plaintiff and further contended on the same lines that he along with defendant No.1 was running business in the shop in partnership. 2.2 The trial court after framing issues at Exh.30 and considering the evidence before it observed that originally defendant No.2 was running bangle business and the new business was selling of grocery items. It reasoned that previously the business was known as Kangan Stores which was changed to Sugam Stores. Regarding the defence of partnership, it concluded that the sharing of 20% in profit and loss by defendant No.1 was a paper arrangement and he was receiving Rs.150/- per month under the conditions of partnership deed. The trial court held that the conditions in the partnership deed were incorporated only to make a show that the partnership firm was being run. It further noted that investment was made by defendant No.2 and that defendant No.1 had parted with the possession of the suit shop in favour of defendant No.2 who was running his business and defendant No.1 was collecting the amount of Rs.150/- per month as above. It relied on the aspect that defendant No.1 passed a purshish at Exh.29 that the partnership firm was dissolved and that the possession of the suit shop was with defendant No.1. It was on the basis of these circumstances that the trial court concluded against the defendant. 3. Learned advocate Mr. Chinmay Gandhi for the applicant assailed the judgment of the lower appellate court which set aside the decree of the trial court, by submitting that the trial court had rightly concluded that the partnership was not genuine. It was on the basis of these circumstances that the trial court concluded against the defendant. 3. Learned advocate Mr. Chinmay Gandhi for the applicant assailed the judgment of the lower appellate court which set aside the decree of the trial court, by submitting that the trial court had rightly concluded that the partnership was not genuine. Emphasizing that no accounts were produced in respect of partnership business and that defendant No.2 was receiving a fixed amount of Rs.150/- which was in its real nature, according to him, a valuable consideration being received by the tenant, he further submitted in the Civil Suit No.1749 of 1990, which was filed by defendant No.1 against the defendant No.2 for dissolution of the firm, defendant No.2 had filed Written Statement (Exh.45) in which it was the defence that the suit was filed by the defendant No.1-tenant to secure amount of Paghari. He submitted on that basis that the partnership was only an arrangement made to save from the clutches of ground of subletting under the law and evade the liability of eviction. He submitted that the premises was given for a particular business to the tenant thereafter it was changed by entering into partnership deed with defendant No.2 and another business was started. It was submitted that such conduct indicated that in fact the tenant had sublet the premises. He submitted that the lower appellate court completely overhauled the evidence and came to a different conclusion in which it was not justified. 4. Learned advocate for the applicant relied on the decision in Babubhai Jugalkishore N. Bhatt v. Jaichand Jayantilal [(1999) 1 RCJ 505] to submit that when the tenant was found to have transferred his tenancy rights, it was a sub-tenancy created. Another decision in Rupalochani Saraswathi ammal v. Sundaranarayanan [(1984) 2 RCR 267] of Madras High Court was relied on for the proposition that when the legal possession of the premises was handed over, it amounted to subletting even though the physical change of possession might not have taken place. The third decision in Darshana Devi v. Des Raj Singh Thakur [(1997) 2 RCJ 426 (P&H) was referred to for the proposition that when landlord was not in possession and the exclusive possession of the premises was with sub-tenant, the passing of valuable consideration could be resumed, the subletting generally being a secrete arrangement. The third decision in Darshana Devi v. Des Raj Singh Thakur [(1997) 2 RCJ 426 (P&H) was referred to for the proposition that when landlord was not in possession and the exclusive possession of the premises was with sub-tenant, the passing of valuable consideration could be resumed, the subletting generally being a secrete arrangement. Decision in Harshachandra Narsibhai v. Ibrahim Haji Khubanbhai ( 1984 GLH 965 ) was pressed into service to contend that section 13(1)(e) of the Rent Act is wide in its language to cover the cases of illegal transfer or assignment of interest by the tenant in the premises in any other manner. 4.1 On the other hand, learned advocate Mr. Jigar P. Raval for defendant-tenant since deceased now represented by his heirs respondents Nos.1.1 to 1.3, contended that the very action on the part of the applicant-plaintiff in instituting the suit was not well motivated in asmuch as the applicant purchased the suit premises only in the year 1989 and at that time the partnership was already in existence. He next submitted that once there was a partnership deed executed in the year 1978 and when the business in the suit premises was being carried on jointly by the partners, it being a permissible arrangement in law, the allegation that the premises was sublet was not tenable. He invited the attention of the court to various conditions in the partnership deed to submit that the possession was not parted with in favour of defendant No.2. He submitted that defendant No.1 was receiving Rs.150/- pursuant to condition in the partnership deed and that it did not make the partnership arrangement unusual in any way. He further submitted that the evidence of plaintiff himself (Exh.36) showed that he himself admitted that defendant No.1 was also attending the business in the suit premises. 4.2 Learned advocate for the respondent-tenant relied on the decision of this court in Mehta Jagjivan Vanechand v. Doshi Vanechand Harakhchand ( AIR 1972 Guj 6 ) to buttress his contention that taking a partner into business did amount to subletting. Decision in Popatlal Vadilal Bhansali v. Kasturbhai Ranchhodbhai Soni [ (2003) 3 GLR 2595 ] was also referred wherein it was held on the basis of partnership deed and other documents that there was no subletting. 5. Decision in Popatlal Vadilal Bhansali v. Kasturbhai Ranchhodbhai Soni [ (2003) 3 GLR 2595 ] was also referred wherein it was held on the basis of partnership deed and other documents that there was no subletting. 5. Having noted the controversy and the contentions canvassed by both the sides, what emerged as undisputed was that the present applicant purchased the suit premises in the year 1989 from its erstwhile owner. The previous owner one Mafatlal Motilal was the original landlord of defendant No.1 who was his tenant before the present applicant stepped into the shoe. The business run by the defendant No.1 tenant in the partnership was since 1978. The notice of attornment was given by the applicant – the new landlord on 11.10.1989. The deed of partnership (Ex.58) was dated 1st August, 1978. The said deed of partnership was tenant’s defence against landlord’s say that the tenant had sub-let the premises. The suit was instituted in 1991. The landlord was staying in the first floor – upper floor of the suit premises. 5.1 The Supreme Court in Helper Girdharbhai (supra) Saiyed Mohmad Mirasaheb Kadri [ (1987) 3 SCC 538 ] observed that whether there was a partnership or not is a mixed question of law and fact to be judged. The Apex Court underlined certain features to be the important elements, which must be there in order to establish partnership. It was held in that regard that firstly there must be an agreement entered into by the parties. Secondly the agreement must be to share profits of business and third the business must be carried on by all or any of the persons concerned, acting for all. In the fourth place, it was observed that existence of agency was also essential. 5.2 In Helper Girdharbhai (supra) the Supreme Court considered the controversy which on facts was akin to one in hand. In that case, the appellant-tenant was a partner in the firm for manufacturing cloth, which business was closed, and another partnership was created by executing a deed of partnership. The respondent-landlord filed eviction suit alleging that the premises were leased for manufacturing of cloth in the name of earlier firm, but the appellant-tenant had sublet the premises to defendants Nos. 2 to 5 who are running the business in partnership for manufacturing Neon Signs. In that case also it was the contention of the tenant that defendants Nos. The respondent-landlord filed eviction suit alleging that the premises were leased for manufacturing of cloth in the name of earlier firm, but the appellant-tenant had sublet the premises to defendants Nos. 2 to 5 who are running the business in partnership for manufacturing Neon Signs. In that case also it was the contention of the tenant that defendants Nos. 2 to 5 have no tenancy rights and the premises was not being used for the business for which it was originally rented. He had filed a civil suit to dissolve the partnership. The trial court had passed decree which was reversed by the appellate court. The High Court took the view that the partnership was a camouflage. The Supreme Court allowed the appeal of the tenant holding that the High Court was not justified in re-appreciating the evidence and in that it exceeded its jurisdiction. 5.3 In Popatlal Vadilal Bhansali (supra) this court held that mere absence of tenant at rented premises would not be sufficient to hold that he had parted with possession. In that case also partnership-deed and other documents showed that tenant was a partner in business carried on at the premises with 20% share. On facts it was held, there was no sub-letting. It was further held that once, landlord makes out a case that suit property is being used by persons other than the tenant, it would be for tenant to show that he has not parted with legal possession of the premises. 5.4 Reverting to the facts of this case, the conditions of the partnership business seen upon perusal of Ex.58 were that the partnership was created in the name of Sugam Stores to deal in grocery and other day-to-day-used-commodities in the household. It contemplated that defendant No.1 had 20% share whereas defendant No.3 would have 80% share in the profit and loss. A further stipulation was that defendant No.1 would be entitled to withdraw every month Rs.150/-towards expenses and the said amount would be adjusted in the profit sharing at he end of the year. It was expressly stated that defendant No.1 was a tenant in the shop and his tenancy rights continued with him. 5.5 The landlord in evidence (Exh.36) wanted to show that the tenant was not in possession, by suggesting that he was keeping the shop closed and gave it away subsequently to defendant No.2. It was expressly stated that defendant No.1 was a tenant in the shop and his tenancy rights continued with him. 5.5 The landlord in evidence (Exh.36) wanted to show that the tenant was not in possession, by suggesting that he was keeping the shop closed and gave it away subsequently to defendant No.2. According to him, the shop was given to defendant No.2 on a consideration. Having stated that defendant No.1 tenant was serving in the mill, the landlord at the same time, admitted in his evidence that after the hours of service, he used to do business in the suit shop. Defendant No.1 was examined at Exh.56. According to his evidence, since the business of bangles initially started was not running well, another business was commenced in the partnership with defendant No.3. Defendant No.1 also gave in his evidence the details about the civil suit instituted for dissolution of the partnership firm. Defendant No.2 examined himself at Exh.49. 5.6 It could be seen from the evidence of defendant, as was also noted by the lower appellate court, that he honestly admitted that he was serving in the mill. However, the mill was closed in 1984. He stated that he was attending the business and never keeping the shop closed. The evidence showed that it was defendant No.1, who used to open and close the shop everyday and the keys of the shop were used to be with him. This was suggestive of the fact that the he had not divested himself of control or possession of the suit premises. He was sitting in the shop and his service in the mill was in the last shift in night which was closed in 1984 as stated. It was reasonable to infer from his straight and honest evidence that he continued to be in legal possession of the shop. The tenancy rights were not parted with in any manner. 5.7 The above aspects coming forth and seen along with the deed of partnership (Exh.78) and the conditions thereof, no material circumstance was available to doubt genuineness of the partnership. It was not possible to conclude that the partnership was a cloak. The stipulations of Exh.78 read together suggested nothing unusual not to treat the partnership as genuine one. 5.7 The above aspects coming forth and seen along with the deed of partnership (Exh.78) and the conditions thereof, no material circumstance was available to doubt genuineness of the partnership. It was not possible to conclude that the partnership was a cloak. The stipulations of Exh.78 read together suggested nothing unusual not to treat the partnership as genuine one. Merely because in one of the conditions of the partnership deed, it was provided that the defendant No.1 would be entitled to withdraw Rs.150/- every month, it was not by itself conclusive circumstance to doubt either the partnership or to treat payment of said fixed amount as a consideration. In fact, the said condition read in its entirety contemplated that the withdrawal amount was towards expenses, providing further that the same would be adjusted in the accounts at the end of the year while calculating the sharing of profit or loss to be borne by the partners. When control over the suit shop was being exercised by defendant No.1 and he used to open and close the shop daily, it was normal in the arrangement to permit him to withdraw a small amount every month for miscellaneous expenses in relation to the shop. 5.8 Another strong circumstance to suggest that the partnership was not a facade was the proceedings of Civil Suit No. 1749 of 1990. It was instituted by defendant No.1 against defendant No.2 as the disputes arose between the two partners. The said suit was for dissolution of the firm and for accounts for the period since 4th November 1983. In that defendant No.2 filed Written Statement (Exh.45) in which he contended that there was a partnership business in which he had right to continue. It was pleaded by defendant No.2 unequivocally that the possession of the premises was of the firm and that defendant No.1 was a tenant in the shop. The contention of the applicant that in Exh.45 Written Statement, defendant No.2 mentioned sub-tenancy as his defence was dealt with by the lower appellate court, rightly observing that such defence was raised to counter the prayers of the suit regarding accounts, etc. for the dissolution of the firm. It was a poor defence raised as available in law but not accepted on facts even in that suit. for the dissolution of the firm. It was a poor defence raised as available in law but not accepted on facts even in that suit. The same by itself could not become a consideration to treat that Exh.78 was merely a sham partnership, when all other weighty aspects flowing from the deed as well as circumstances attendant to it showed that the partnership was a genuine and lawful arrangement entered into by defendant No.1. 6. Following observations deserve to be noticed from Helper Girdharbhai (supra) as they squarely apply to the facts of this case. "In the instant case judged by the aforesaid principles, it was possible to hold that there was a partnership of which the appellant was a partner. The partnership deeds gave the appellant the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the deeds were acted upon. There was evidence of suit of dissolution of the partnership where none of partners took the plea that it was a false or a fictitious document. Though the decree in the dissolution suit was not binding in these proceedings, inter se between the parties as partners it is a piece of evidence which cannot be wholly ignored. It is true that in the partnership deeds the bank accounts were not to be operated by the appellant, and further that irrespective of the profit the clause of partnership deed provided that there should be a fixed percentage of profit to be given tot he partner appellant without sharing the losses. But there is nothing inherently illegal or improbable making a provision of such a type. ... In the eye of law, such a clause is really non-sequitur or neutral proving neither the existence nor non-existence of a genuine firm. Debiting the fixed amount payable to the appellant in the expenses account is not inconsistent with partnership. This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm. It is thus possible to hold that there was a partnership of which the appellant was a partner." (para 8, 11, 19) 7. Coming to the decisions relied on by learned advocate for the applicant, in Babubhai Jugalkishore N. Bhatt (supra) the facts were entirely different. It is thus possible to hold that there was a partnership of which the appellant was a partner." (para 8, 11, 19) 7. Coming to the decisions relied on by learned advocate for the applicant, in Babubhai Jugalkishore N. Bhatt (supra) the facts were entirely different. The Government issued notification protecting sub-tenants where tenants sold his business, goodwill, stock and tenancy rights in favour of sub-tenants. The tenant dissolved partnership, transferred tenancy rights and allotted goodwill etc. to partners. It was held that sub-tenancy was not liable to be protected. Rupalochani Saraswathi Ammal (supra) was under the Tamil Nadu Buildings (Lease and Rent Control) Act. The tenant has found to have parted with legal possession by executing settlement deed in favour of wife and sons. It was treated to be sub-letting. In Darshana Devi (supra) the landlord had proved sub-tenant's exclusive possession, and in that context it was held that since exclusive possession was parted with, it was for tenant to show that possession given to third person was without consideration. Similarly in Harshachandra Narsibhai (supra) it was held that if tenant has assigned or transferred his interests in rented premises in any other manner, section 13(1)(e) would attract. 8. Notably, this court in Mehta Jagjivan Vanechand (Supra) reasoned as under, “If the transaction of taking in partners constitutes sub-letting, the defendant-tenant will be head-tenant and he himself along with his two partners will be the sub-tenants. It is not necessary to uncover the fallacy in this trek of reasoning any further. As it is not feasible to accede to the argument that the partners of a partnership firm constitute a legal entity having a distinct identity, individuality, or personality, it is not possible to hold that a transfer has taken place from the tenant to himself and to two others (his partners). The contention cannot therefore, be upheld that a sub-tenancy has come into existence between the tenant on the one hand and the tenant and his partners on the other.” (Para 5) “Merely because the tenant continues to carry on the business in the same shop as hitherto but takes in two partners, the legal possession of the shop does not change hands. Using the shop is not equivalent to handing over legal possession of the shop. Legal possession is a concept which must be distinguished from the concept of physical occupation of user. Using the shop is not equivalent to handing over legal possession of the shop. Legal possession is a concept which must be distinguished from the concept of physical occupation of user. One who occupies or uses a premises is not necessarily in legal possession of the premises. There is a distinction between physical occupation and legal possession.” (Para 5) 9. For the foregoing reasons, no interference is warranted in judgment and order dated 14th July 2003 of the Appellate Bench of Hon'ble Small Causes Court passed in Civil Appeal No. 210 of 1999. The Civil Revision Application is required to be dismissed and accordingly it is dismissed. Application Dismissed.