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2014 DIGILAW 913 (MP)

Sunil Enterprises v. Mithila Devi

2014-07-30

ROHIT ARYA

body2014
JUDGMENT 1. Heard 2. This appeal by the plaintiff under section 100 of CPC is directed against the concurring judgment and decree dated 1.9.2012 passed by XIV Additional District Judge, Gwalior in Civil Appeal No.25-A/12, confirming the judgment and decree of the trial Court dated 31.3.2010 passed by Sixth Civil Judge, Class-II, Gwalior in Civil Suit No.96-A/2009. By the impugned judgment and decree passed by trial Court the suit filed by the plaintiff for declaration and permanent injunction has been dismissed. 3. In the aforesaid suit, plaintiff has inter alia contended that plaintiff is running a cloth business in the name and style of Sunil Enterprises in shop No.4-A, situated at Narayan Das Cloth Market, Near Central Library, Jiwaji Chowk, Gwalior since 1.4.1978 and paying rent. As on date the rent was to the tune of Rs.325/- per month. It is further pleaded that at the time of commencing tenancy, an amount of Rs. 4,000/- was paid to Landlady Smt. Mithila Devi in advance. Up to 31.3.1999, plaintiff has paid the rent to the tune of Rs.15,600/-. It is alleged that after 31st March, 1999 no receipt was given in token of the rent as paid. As now the value of the shop has gone up, therefore, defendants are trying to forcibly dispossess the plaintiff from the suit shop, therefore, the instant suit has been filed for declaration and permanent injunction. 4. Defendant No. 2 has filed written statement. It was contended that suit shop was given to one Nareshchandra, who had started the business under the name and style of M/s. Sunil Enterprises, a proprietorship firm. However, without notice, knowledge and consent of defendants, said Nareshchandra handed over the possession of the suit shop to Pratapchadra Jethwani, the plaintiff, as a sub-tenant, contrary to the terms and conditions of tenancy. It is denied that plaintiff has ever paid rent to the defendants. Rent has been paid only by Nareshchandra till the time he was in occupation of the suit shop. It is denied that plaintiff is a tenant of defendants and any attempt has been made by the defendant to forcible dispossession the plaintiff. It is denied that plaintiff has ever paid rent to the defendants. Rent has been paid only by Nareshchandra till the time he was in occupation of the suit shop. It is denied that plaintiff is a tenant of defendants and any attempt has been made by the defendant to forcible dispossession the plaintiff. In fact it is contended that as a matter of fact defendants have filed a suit vide Civil Suit No.67-A/04 pending before the Court of 8th Civil Judge, Class-II, Gwalior, for eviction of Nareshchandra or the plaintiff and therefore, there is no reason for defendants to seek forcible dispossession of the plaintiff as alleged in the plaint. With the aforesaid pleadings, the defendants have prayed for dismissal of the suit. 5. Upon such pleadings, trial Court framed issues and allowed parties to lead evidence. On critical evaluation of the oral and documentary evidence brought on record, trial Court dismissed the suit holding that landlord-tenant relationship is not established between the defendants and plaintiff. 6. On appeal, first appellate Court again reappreciated the entire evidence on record to address upon three fold questions namely (i) Whether, landlordtenant relationship exists in respect of suit shop between parties; (ii) Whether, defendants are trying to dispossess the plaintiff without following due procedure of law; and (iii) Whether, the judgment of trial Court is sustainable in the eyes of law. 7. The first appellate Court has once again threadbare discussed the evidence brought on record to ascertain whether there is any landlord-tenant relationship between the parties. It has been found that no documentary evidence is brought on record to establish the assertion that the plaintiff is proprietor of M/s. Sunil Enterprises since it is inception and the same proprietary firm had taken the suit premises on rent from defendant Mithiladevi. There is no documentary evidence as regards payment of rent by plaintiff to defendants. Plaintiffs may be running a business of cloth under the name and style of M/s. Sunil Enterprises in the Narayandas Market but for want of any documentary evidence on record, it cannot be held that there was landlord-tenant relationship between defendants and plaintiff in respect of suit shop. Plaintiffs may be running a business of cloth under the name and style of M/s. Sunil Enterprises in the Narayandas Market but for want of any documentary evidence on record, it cannot be held that there was landlord-tenant relationship between defendants and plaintiff in respect of suit shop. Documents related to income tax return, sales tax return in respect of the M/s. Sunil Enterprisies, orders passed by Sales Tax Officer are of no relevancy as those documents neither prove the tenancy nor relevant to establish the tenancy as regard the suit shop in favour of plaintiff for establishing landlord-tenant relationship. Plaintiff himself in his cross-examination has admitted that at the time of commencement of tenancy, Kirayanama was executed. He has not produced the same. Even partnership deed as claimed by the plaintiff in respect of the business being run in the name and style of M/s. Sunil Enterprises before the Court has not been produced. Plaintiff has expressed ignorance as regards the execution of rent deed by Nareshchandra with the defendants. He further submitted that in year 1991, said Nareshchandra has separated himself from the said business. He admits that defendants have filed a suit for eviction against Nareshchandra in which plaintiff is also a party. He further admits that Nareshchandra does not sit in the suit shop after having separated from the business, though he has not produced any documents relating to tenancy. He admits that Ex.P-4 and P-5, the orders passed by Sales Tax Department do not bear his name after the firms name M/s. Sunil Enterprises and likewise those documents do not bear such stipulations that plaintiff is tenant in suit shop. With the aforesaid discussion, the first appellate Court in para 15 has concluded to the effect that the suit shop in fact was taken on rent by Nareshchanrdra, thereafter, he formed a proprietary firm M/s. Sunil Enterprises and was doing business. He has been paying rent to the defendants. Thereafter, it appears that he has alowed plaintiff in his business and with the passage of time, he separated himself from business without knowledge of the defendants. The fact that the plaintiff by expressing his ignorance as regards tenancy right of Nareshchandra reflects conduct of plaintiff hiding facts. He has been paying rent to the defendants. Thereafter, it appears that he has alowed plaintiff in his business and with the passage of time, he separated himself from business without knowledge of the defendants. The fact that the plaintiff by expressing his ignorance as regards tenancy right of Nareshchandra reflects conduct of plaintiff hiding facts. On the contrary, he was inducted as subtenant in the suit shop without knowledge, notice and consent of the defendants and appears to be doing cloth business in the suit shop. As a matter of fact, as the plaintiff has filed the suit seeking declaration that he is a tenant of the defendants, the burden was upon him to establish the landlord-tenant relationship with the defendants but he has failed to discharge the burden as neither any rent deed nor any rent receipts have been produced in support of assertion of the tenancy. Accordingly, first appellate Court has dismissed the suit for want of evidence as regard landlord-tenant relationship. 8. Law as regards sub-tenancy is well settled by the Hon’ble apex Court in series of judgments namely Parvindar Singh v. Renu Gautam and others [ (2004)4 SCC 794 (para 8)], and Vinaykishore Punamchand Mundhada and another v. Shri Bhumi Kalpataru and others [ (2010)9 SCC 129 (para 18-19)]. For ready reference relevant para of aforesaid judgments as mentioned hereinabove are quoted hereinbelow : Para 8 of Parvindar Singh (supra), case : “8.The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is subletting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant. Paras 18 and 19 of Vinaykishore Punamchand Mundhada (supra), case : “18. It is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property. 19. It would be impossible for the landlord to prove, by direct evidence, the arrangement between the tenant and sub-tenant. It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. 19. It would be impossible for the landlord to prove, by direct evidence, the arrangement between the tenant and sub-tenant. It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. Such arrangement which may have been made secretly, cannot be proved by affirmative evidence and in such circumstances, the Court is required to draw its own inference upon the facts of the case proved at the enquiry. Delivery of exclusive possession by the tenant to a stranger to the landlord and without the prior permission of the landlord is one dominant factor based on which the Court could infer as to whether the premises was sub-let.” 9. If factual matrix in hand is read in juxtaposition with law laid down by Supreme Court in above mentioned cases, it is found that the occupation of the suit shop by the plaintiff cannot be said to be in the capacity of tenant but as sub-tenant who has been put into possession of suit shop secretly by the original tenant-Nareshchandra without notice, knowledge and consent of the defendants. Nareshchandra, the original tenant is now not occupying the suit shop since 1991. He has no control over it. Possession of suit shop has been handed over to plaintiff by Nareshchandra behind the back of defendant-landlady. Hence, it is a case of sub-letting of suit shop more particularly for want of any rent agreement and rent receipts. Plaintiff himself has stated that since 1991, Nareshchandra has withdrawn from business and the partnership. However, no documentary evidence is brought on record regarding proprietary firm in the name of plaintiffs under the name and style of M/s. Sunil Enterprises.Therefore, both the Courts below were justified in holding that there was no landlord tenant relationship and rightly refused the protection as sought for. 10. Having perused the aforesaid settled dictum of law, impugned judgments and record, both the Courts below have recorded concurrent findings of fact which are in fact and in effect impregnable in the nature and are in the realm of facts. Findings so recorded do not warrant any interference under section 100 of CPC by this Court. No question of law, much less substantial question of law arises in this appeal, same is, therefore, dismissed. .............