High Court Punjab-Haryana High Court

Abhey Singh vs Shri Arjun Singh Kirpa Ram … on 24 February, 2009

Punjab-Haryana High Court
Abhey Singh vs Shri Arjun Singh Kirpa Ram … on 24 February, 2009
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*