Civil Revision No.2511 of 2001 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.2511 of 2001 (O&M)
Date of decision: 24.02.2009
Abhey Singh .............. Petitioner
Vs.
Shri Arjun Singh Kirpa Ram Charitable Trust and another
............Respondents
Present: Mr. C.B. Goel, Advocate
for the petitioner.
Mr. M.L. Sarin, Senior Advocate
with Ms. Seema Jagpal, Advocate
for the respondents.
CORAM: HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
-.-
K.KANNAN, J.
1. The Rent Controller dismissed an application for ejectment
filed on the alleged grounds of subletting and cessation of the tenant
to occupy the building. In appeal by the landlord, the decision of the
Rent Controller as regards cessation to occupy the building was
confirmed but ordered ejectment on the ground of subletting. The
aggrieved tenant is the revision petitioner before this Court.
2. Before the Rent Controller, the tenant resisted the plea of
the landlord that there had been a subletting by pointing out that the
so-called sub-tenant was his own blood brother and he was jointly
associated in the business of tenant. In proof of his contentions, the
tenant had filed copies of returns submitted before the sales tax
Civil Revision No.2511 of 2001 (O&M) -2-
authorities and account books where the second respondent had been
shown as a partner with the first respondent. The Rent Controller
accepted the documents as establishing the defence and also reasoned
that the landlord had not even filed any purchase bills that should
have been available if the second respondent had been carrying on the
business independently. The Appellate Authority reversed the
decision, finding fault with the reliance on the documents of sales tax
returns and account books and further found the evidence of the first
respondent namely the tenant as most untrustworthy. The Appellate
Authority also found that the second respondent had taken
independent electricity service connection that proved his exclusive
possession. The case of subletting according to the Appellate
Authority had been comprehensively proved.
3. Learned counsel appearing on behalf of the tenant
vehemently argued that the Appellate Authority had committed an
error by reversing the decision of the Rent Controller on flimsy
grounds. To him, the fact that electricity connection had been taken
only in the name of the second respondent could not prove sub-
tenancy and the electricity connection itself could not have been
obtained during the relevant time without the permission of the
landlord. The returns before the sales tax returns had given the details
of the business as being run in partnership and the account books,
which were produced in Court, were for all the periods from 1981 to
1990. The reliance on all the documents by the Rent Controller was
appropriate and the reversal of the decision made by the Appellate
Authority, according to the counsel for the revision petitioner did not
Civil Revision No.2511 of 2001 (O&M) -3-
accord with evidence in law.
4. As pointed out by the learned Senior Counsel appearing on
behalf of the respondent, the case relating to sub-tenancy has been
decided on factual consideration of the following facts:-
(i) It is not merely a case of close relationship between
parties amongst the respondents but a case where the
second respondent had been admitted to be in
possession of the shop but it was explained by the first
respondent that they were running a joint business.
This according to the counsel for the landlord placed a
heavy burden on the tenant to prove that there was no
sub-tenancy.
(ii) The tenant had admitted in his evidence that there was
a document of partnership between respondent No.1
and 2 and the failure to produce the document give
rise to an adverse inference against the plea of a joint
business between respondent No.1 and 2.
(iii) The sales tax return produced by the first respondent
was merely a photocopy containing signatures of
respondent No.1 and 2 and they were not duly
authenticated certified copies. Objection had been
taken even at the time of trial for reception of the
document and there was no proof of loss of the
original or justification for its non-production.
(iv) Even a copy of the so-called certificate of registration
produced by the tenant and exhibited as RW5/2 merely
Civil Revision No.2511 of 2001 (O&M) -4-made reference to the name of the business concerned
as M/s Savera Boot House and there had been no
reference to the partnership itself.
(v) The tenant was having a business in vending fruits in a
place 45 kms away from the petition mentioned
premises and he had ceased to occupy the petition
mentioned premises delivering the possession of the
property to the second respondent.
(vi) The so-called joint business as also false, as admitted
by RW-1 that there was no shoe business at the
property in respect of which the accounts and copies
of sales tax documents had been produced but the
second respondent was carrying on tea business for
two years before filing of the petition. It is nobody’s
case that it was joint business of the first respondent
with the second respondent in respect of the tea
business.
(vii) The electricity connection had been taken
independently in the name of the 2nd respondent and
not either in the partnership’s name or in the name of
the first respondent.
5. The factual consideration of all the materials and the
discussion rendered by the Appellate Authority are absolutely
convincing and he has given adequate reasons for setting aside the
order of the Rent Controller. The two grounds, on which the Rent
Controller had found in favour of the first respondent that he had been
Civil Revision No.2511 of 2001 (O&M) -5-
associated with the second respondent, were found to be wholly
unjustified. The purchase bills from the second respondent
independently were irrelevant so long as it was admitted even by a
witness of the respondents that the second respondent was carrying on
tea business and not the shoe business. The electricity connection
standing in the name of the second respondent was not properly
appreciated. It was not merely one instance of the electricity service
connection standing in his name to be rejected out of consideration
but must be taken as one of the factors among other materials filed to
establish that second respondent was carrying on an independent
business.
6. The cases cited by counsel for both sides are brought out
only for rendering a comprehensive judgment. The counsel for the
revision petitioner refers to a decision in Vinod Kumar and others
Vs. Sat Pal 2005 (1) PLR 492 to the effect that without proof of
factual parting with possession to the sub tenant, the case of sub-
tenancy itself could not be said to be established. The learned Senior
Counsel for the respondent refers to a decision of this Court in
Ashwani Kumar Prashar and another Vs. Anil Kapoor 2004 (2)
RCR 174 that when a tenant transferred his own business to another
town and handed over the possession of demised premises to his
brother without permission of landlord, it could be presumed that
possession had been transferred for some consideration. Smt.
Darshana Devi and another Vs. Des Raj Singh and another 1997
HRR 363 was a decision that laid down that if evidence was not
produced to show the contribution of partners, the so-called
Civil Revision No.2511 of 2001 (O&M) -6-
partnership should be taken to be a make believe agreement. In
Kartar Singh Vs. Shri Vijay Kumar and Anr 1978 (1) RLR 603, it
was found that contention of acquiescence by a landlord for receiving
the rent from the sub tenant could take away the right of landlord to
obtain eviction since the requirement in law was the consent in
writing of the landlord for the said subletting and in the absence of
such written consent, no conduct of the landlord in the event of
receipt of rent will take away the right. The Hon’ble Supreme Court
held in Bhairab Chandra Nandan Vs. Manadhir Chandra Dutt 1988
HRR 199 that a tenant’s brother’s exclusive possession of the shop
during the business was sufficient proof of sub-tenancy. In Ram
Avtar Vs. Sushma Kumari and another 2007(2) RCR 342 this Court
held in cases where the tenant and the alleged sub-tenant happened to
be close relatives or brothers inter se, it would be difficult for the
landlord to prove the secret arrangement and if the possession of
person other than the tenant was established, the case of sub-tenancy
must be taken as proved.
7. All these decisions pointed out to the most decisive issue
that the nearness of relationship between the parties by themselves
will not give rise to a presumption that such relationship could not
establish sub-tenancy. The exclusive possession of a person other
than the tenant must be adequately established by such person, who is
not a tenant and there will be a presumption drawn in favour of the
landlord and transaction is only sub-tenancy. The fact that the tenant
had removed himself from the village to yet another business would
be a factor to prove that the tenant had foresaken his possession to
Civil Revision No.2511 of 2001 (O&M) -7-
another person who would be regarded as sub-tenant.
8. All the relevant points have been considered by the
Appellate Authority and the order of ejectment passed fully accords
with evidence and law. The civil revision petition is, therefore,
dismissed, but in the circumstances, there shall be no orders as to
costs. Time for eviction is two months.
(K. KANNAN)
JUDGE
February 24, 2009
Pankaj*