JUDGMENT
V.K. Jhanji, J.
1. This is tenant’s revision petition directed against the order of the appellate Authority whereby order of the Rent Controller was set aside and in consequence thereof, tenant was ordered to be ejected.
2. In brief , the facts are that one Panna Lal, landlord, filed an ejectment petition on the allegation that the shop in dispute was let out to firm-Bali Ram Nihal Singh, Jind Mandi on an annual rent of Rs. 650/-. Ejectment of the tenant was sought on the ground that the firm-Bali Ram Nihal Singh has sublet the shop to firm-Nihal Singh Ajit Singh and also to respondent No. 4, Ranbir Singh son of Ram Singh. Respondents in their written statement admitted that the shop in dispute was let out to M/s. Bali Ram Nihal Singh at an annual rent of Rs. 650/-, but it was denied that the firm has sub-let the shop to M/s. Nihal Singh Ajit Singh or to respondent No. 4. The Rent Controller on the appreciation of evidence, dismissed the ejectment petition. On appeal by the landlord, order of the Rent Controller was set aside by the appellate Authority and in consequence thereof, tenant was ordered to be ejected. The order of the appellate Authority is being impugned in this revision Petition.
Mr. V.K. Jain, Sr. Advocate, counsel for the petitioner, contended that the landlord has not proved on record that the tenant has parted with possession. According to him, both the partners who originally took the shop in dispute are continuing in possession and have associated Ajit Singh son of Nihal Singh, Dhan Singh, nephew, and Ranbir Singh, brother-in-law of Nihal Singh, as partners and thus, there is no parting of possession. He also made reference to certain documents now placed before this Court along with an application with a prayer that the same be read as additional evidence. The documents are in the shape of various income- tax returns filed for the period from 1972-73 onwards as well as partnership-deeds which find mention in the various assessment orders passed by the Income-tax authorities. This was for the purpose of showing that the original partners, i.e. Bali Ran and Nihal Singh, are continuing in possession as partners right from inception and other relations of both partners were taken as partners from time to time and the name of the firm was also changed. In reply, learned counsel for the landlord contended that once the tenant has not specifically denied the averment of the landlord that M/s. Nihal Singh Ajit Singh is in possession, presumption was rightly drawn by the appellate Authority that the original firm, i.e. Bali Ram Nihal Singh, has ceased to exist and new firm, i.e. Nihal Singh Ajit Singh is in possession of the shop. In regard to the documents now sought to be produced as additional evidence, he contended that the petitioners cannot be allowed to produce these documents at this stage, and they are not entitled to fill in the lacuna.
3. Having heard learned counsel at length and on perusal of evidence on record, I am of the view that the order of the appellate Authority cannot be sustained. Landlord in order to succeed on the ground of sub-letting is required to prove on record that the original tenant has ceased to occupy the premises and some other person in place of the tenant has come in possession and parting of possession is for a consideration. Once the landlord successfully establishes this fact on record, then onus is on the tenant to prove as to in what capacity the other person has come in possession of the premises. Admittedly, Nihal Singh executed a rentnote dated 15-23-1969, Exh. P-1, on behalf of the firm, Bali Ram Nihal Singh, in favour of the landlord. At the time of execution of rent-note, there were only two partners namely Bali Ram and Nihal Singh. Ejectment was sought on the ground that the firm, Bali Ram Nihal Singh, is no more in possession of the shop and the shop has been sublet to firm, M/s Nihal Singh Ajit Singh. In order to prove sub-letting, landlord examined Ishwar Chand, A.W.I., who in his cross-examination admitted that he saw Nihal Singh sitting on the shop, meaning thereby that Nihal Singh was found to be in possession of shop. A.W.2-Raghia Rani has not stated anything as to who is in possession of the shop. Panna Lal, landlord, himself appeared as A.W.3 and stated that firm, Bali Ram Nihal Singh, has been dissolved and new firm, Nihal Singh Ajit Singh has come in existence. He, however, did not say anything in regard to firm M/s, Bali Ram Nihal Singh being not in possession. Nihal Singh, one of the original partners, who took the premises initially on rent, appeared as R.W.1 and in his statement, which has also been taken note of by the appellate Authority, has fairly stated that the shop is on rent with him since 1942-43 and how from time to time, constitution of the firm was changed. A reading of his statement makes it clear that Nihal Singh and Bali Ram have always remained in possession of the shop, though they took their near relations as partners. Apart from the above, there is no evidence on record with regard to allegation of sub-letting and from this evidence, one cannot conclude that the tenant has parted with possession. It is true that the petitioners after filing of the written statement did make an application to amend the written statement for the purpose of showing as to how constitution of the firm was changed from time to time, but merely because the prayer to amend written statement was declined, is no ground to raise a presumption that petitioners are shifting their defence. Presumption was also not required to be drawn against the petitioners for the reason that other partners were not examined as witnesses. Nihal Singh, one of the two partners, who took the shop on rent, did appear in the witness-box and made a categoric statement to which there is no rebuttal that both of them are still in occupation of the shop and have taken their near relations as partners. Unless the tenant has parted with possession of the premises, there can be no sub-letting. The real test to determine sub-letting is whether the tenant has walked out of the premises and handed over its exclusive possession and control to the sub-tenant. If the landlord fails to provide parting of possession, ejectment cannot be ordered on the ground of sub-letting because the tenant is entitled to use the premises for any business he likes and if he takes some-one as partner in his business, it cannot be treated as sub-letting of the premises to the partner because a partner does not get the right of tenancy and cannot claim the status of a tenant or sub-tenant. The income-tax returns, assessment orders and the partnership deeds etc., produced before the Income-tax authorities and now sought to be produced by way of additional evidence, do support the case of the petitioners and these documents are in consonance with the statement of Nihal Singh,R.W.1. Even if these documents are not taken into consideration, as contended by counsel for the landlord, then also the tenant is not liable to be ejected because the landlord has failed to prove that the tenant has walked out of the shop. The judgements, of the Supreme Court in Shah Phool Chand Lal Chattel v. Parvathi Bai,1 (1989)-1 SCC-556, and of this Court in Harbhajan Singh v. Faquir Chand,2 (1993-1) 103 P.L.R. 159 cited by the counsel for the landlord, have no application to the facts of the present case. In Shah Phool Chand Lal Chand’s case (supra), ejectment was ordered on the ground of sub-letting because the appellant-firm therein had failed to produce tax-returns, account books and ledgers, although notice was given to the appellant therein to produce the same. In such circumstances, an adverse inference was drawn. In Harbhajan Singh’s case (Supra), partnership was found to be sham and fake, and for that matter ejectment was ordered on the ground of sub-letting. However, in the present case, from the showing of the landlord, it is not established that the original tenant has parted with possession. Thus, the order of the appellate Authority cannot be sustained.
4. For the reasons recorded above, the revision petition is allowed, order of the appellate Authority is set aside and that of the Rent Controller is restored with no order as to costs.
