Rajasthan High Court - Jaipur
Shri M.M. Ranjan vs . on 27 October, 2015
Author: Prakash Gupta
Bench: Prakash Gupta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT S.B. CIVIL SECOND APPEAL NO. 120/1992 Asha Ram Sindhi (deceased) through his legal heirs & Ors. vs. Thakurji Shriji Shri Adinath Swami Brijman Mandir Shri Digambar Jain Mandir Yasodha Mandir Date of Judgment ::::::: 27/10/2015 HON'BLE MR. JUSTICE PRAKASH GUPTA Shri M.M. Ranjan, Senior Advocate with Shri Saurabh Bhandari, for the defendant-appellants. Shri S. Kasliwal, Senior Advocate with Shri R.N. Vijay,for the plaintiff- respondent. *********** Reportable: By the Court:-
1. The instant Civil Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the original tenant-defendant (Asha Ram Sindhi) who died during the pendency of this appeal and his legal representatives have been brought on record, who are presently appellants in this appeal. This appeal has been filed against the impugned judgment and decree dated 08.05.1992 passed by the learned Additional District Judge No.5, Jaipur City, Jaipur in Civil Regular Appeal No. 15/1984, whereby the learned appellate Court allowed the appeal filed by the plaintiff-landlord and reversed the judgment and decree passed by the learned Additional Civil Judge No. 3, Jaipur City, Jaipur in Civil suit No. 14/80 (1/82).
2. Briefly stated, the facts giving rise to the present appeal are that plaintiff-respondent had filed a civil suit for eviction and arrears of rent against the deceased defendant-tenant on grounds of default in payment of rent and subletting/parting with possession of the suit shops. It is pleaded in the plaint with regard to ground of subletting.
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3. The deceased defendant-tenant in the written statement denied the allegations regarding subletting by making the following averments:-
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4. The learned trial court after recording evidence of the parties did not accept the plea of plaintiff-landlord regarding subletting/parting with possession and vide its judgment and decree dated 15/12/1983 dismissed the suit filed by the plaintiff-landlord. Feeling aggrieved by the same, the plaintiff-landlord filed civil first appeal before the learned lower appellate court, the same was allowed by the learned first appellate Court.
5. Aggrieved by the same the appellant-tenant has filed the present second appeal before this Court.
6. This Court on 12.3.1993 admitted the appeal on the following substantial question of law:-
(i) Whether the finding of the learned first appellate court that the appellant had parted with a part of the premises in dispute is not perverse?
7. I have heard learned counsel for the parties and perused the material on record minutely and carefully.
8. It is submitted by the learned senior counsel Mr. M.M. Ranjan for the appellants that the learned trial Court did not consider the provisions of Order 41 Rule 27 of the CPC. The order of rejection of the application under Order 41 Rule 27 CPC is perverse. The learned first appellate Court failed to consider the documents which were admissible without proof under Section 274 of the Rajasthan Municipalities Act, 1959. The learned appellate Court did not pass speaking order on the application filed by the defendant and did not apply its mind to the application. It is further submitted by the learned senior counsel for the appellants that the finding of the first appellate Court on issue No. 3 is perverse on the face of it. While deciding issue No.3, the learned appellate Court did not discuss the evidence of the defendant and without giving any reason for its disagreement, the first appellate court reversed the finding of the learned trial Court. He submitted that in order to prove the ground of subletting two ingredients have to be proved i.e. parting with the possession of premises or part of it by the tenant in favour of a third party with exclusive right of possession and such parting with possession ought to be in lieu of compensation or rent, that too without the consent of the landlord. Inducting a partner or partners in the business by a tenant by itself does not amount to subletting. If the tenant is actively associated with the partnership business and retained the control over the tenanted premises, along with the partners, the tenant may not said to have parted with possession. In the mater at hand, while rejecting the plea of subletting the trial Court has given a specific reason. It was for the plaintiff-landlord to prove two essential ingredients of subletting and parting with possession. The learned appellate Court has not at all given any finding with regard to subletting. In this regard, the learned appellate Court did not consider the pleadings and evidence of the parties in the right perspective. In the mater at hand, it is abundantly clear that the original tenant has not handed over the legal possession of the suit shop and has the exclusive control over the shop in question and merely allowing the son to do business in some portion of the premises does not amount to parting with legal possession. Counsel further submitted that partnership deed was nothing but an arrangement of financing from Shri Gulab Rai who was father-in-law of original tenant-defendant. He only financed Govind Ram, grand- son for the purpose of commencing the business. In these circumstances Sh. Gulab Rai was only a financier and not acting as partner as is evident by the Ex.6/1- partnership deed. In support of his contentions, learned counsel has placed reliance upon (2010) 1 SCC-217 Celina Coelho Pereira (Ms.) and Others Vs. Ulhas Mahabaleshwar Kholkar and Others, RLR 1985-718 Amir Ahmed Vs. Yusuf, AIR (1989) 9 SC-1141 Gopal Saran Vs. Satyanarayan, (1990) 2 SCC-331 Delhi Stationers and Printers Vs. Rajendra Kumar, AIR 1988 SC-1362 Jagan Nath (Deceased) through LRs.Vs. Chander Bhan and others, AIR 1995 SC-380 United Bank of India Vs. Cooks and Kelvey Properties (P) Ltd. and AIR 1988 SC-396 Bhairab Chandra Nandan Vs. Ranadhir Chandra Dutta.
9. On the other hand, the learned senior counsel Mr. S. Kasliwal for the respondent has urged that it is an admitted fact that part of the disputed shop is being use to carry out business in the name of Rajkamal Watch Company. It is also an admitted fact that in the suit premises, a partition has been fixed and the shop has been divided into two parts. In view of this fact, the fact of subletting is proved. He submitted that from the bare perusal of clause 10 of the partnership deed Ex.6/1, the fact of subletting is proved. In the said clause, it is mentioned that if any dispute arises out of the partnership as to the interpretation, operation or enforcement of the terms of partnership deed between the parties, the same shall be referred to arbitration of Sh. Asha Ram Sindhi, who is the tenant of the suit premises. It shows that the exclusive possession of the part of the disputed shop was handed over to Rajkamal Watch Company and Sh. Asha Ram Sindhi has no concern with Rajkamal Watch Company. The learned first appellate Court had thoroughly examined the evidence available on record and findings recorded by the learned appellate Court are based on the evidence available on record and the learned appellate Court appreciated the evidence in the right perspective. It is submitted that though the burden to prove subletting is on the landlord but once it is established that the tenant has parted with the possession to a third party, onus shifts on the tenant. In the case at hand, it is an admitted fact that the business of Rajkamal Watch Company is being carried out in the disputed shop. Therefore, onus had shifted on the defendant-tenant to explain the capacity in which the business of Rajkamal Watch Company is being carried out. The fact of subletting is a finding of fact and not a substantial question of law. Reliance has been placed by the learned senior counsel for the respondent on (2005) 1 SCC-31 Joginder Singh Sodhi Vs. Amar Kaur, (1989) 2 SCC-383 Roop Chand Vs. Gopi Chand Tholia, AIR 1989 SC-865 Shah Phoolchand Lalchand Vs. Parvathi Bai, 1977 (2) Rent Control Journal(M.P.)-249 Shrimati Satyabhamadevi Choubey Vs. Ramkishore Panday, 1971 (3) SCC-852 Bhagwan Das Vs. S. Rajdev Singh and (1975) 2 SCC-668 Gajanan Dattatraya Vs. Sherbanu Hosang Patel and others.
10. Before adverting on the merits of the case a misc. application filed by the respondent for awarding mesne profit @ 808480/- per year requires consideration of this court. It is pertinent to mentioned that on 09/02/2009 an application seeking similar relief for awarding mesne profit and damages was filed by the respondent however, said application was withdrawn by the respondent on 19/01/2011 without seeking any liberty to file the same afresh. Therefore, in my view, the second application seeking the same relief is not maintainable particularly, in those circumstances when the appeal itself is being decided by this judgment on merits, accordingly the application is dismissed.
11. Regarding application under Section 41 Rule 27 CPC, the learned first appellate Court has given plausible reasons for rejecting the same. When oral evidence on behalf of the defendant was recorded, none of his witness stated that the Gulab Rai has expired on 27/10/1967. The application filed by the defendant was filed with inordinate delay moreso when the Gulab Rai was none other than the father-in-law of the defendant. No infirmity is found in the order passed on application under Section 41 Rule 27 CPC by the learned first appellate Court.
12. I have considered the submissions of the learned counsel for both the parties and minutely scanned material on record as well as decisions cited by both the parties during the course of arguments.
Before discussing the finding of the learned appellate Court for the purpose of adjudicating the substantial question of law formulated in the present case, I would like to discuss the case laws cited by both the parties on the formulated substantial question of law.
13. A Division Bench of this Court in case of Amir Ahamed Vs Yusuf Khan, 1985 RLR 719 on a reference made by a Single Judge had considered the following questions: -
a) Whether a tenant, who allows another person to use the premises or part of the premises can be said to have parted with possession of the premises or part of the premises so as to entail the liability of eviction u/s 13(1) of the Act?
b) Whether conversion of exclusion possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person constitutes parting with possession u/s 13 (1) (e) of the Act?
The Division Bench has answered the said question as under:-
a) Where a tenant allows another person to merely use the premises, he cannot be said to have parted with possession of the premises or part of the premises so as to entail the liability of eviction u/s 13 (1) (e) the act?
b) that the conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person, does not constitute parting with possession u/s 13 (1) (e) of the Act?
14. In case of Gopal Saran Vs. Satya Narain, 1989 (3) SC 1141, the Hon'ble Supreme court in para No. 20 has held as under: -
20- From the aforesaid, it appears to us that the question whether there is a tenancy or license or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either sub-tenancy or parting with possession. In Associated Hotel of India Ltd., Delhi V. Sardar Ranjit Singh (1968) 2 SCR 548: (AIR 1968) SC 933) it was held on the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is whether the landlord retained control over the apartment. Similarly it was held by this Court in Smt. Krishnawati V. Shri Hans Raj (1974) 1 SCC 289: (AIR 1974 SC 280) that subletting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises. Sree Sachhar sought to argue that in considering the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwelling house and not to protect a person who is not be resident of dwelling house but is making money by subletting it.
15. In case of Delhi Stationers and Printers Vs. Rajendra Kumar (1990) 2 SCC-331, the Hon'ble Supreme court considered the earlier judgments delivered in the case of Jagganath Vs. Chandra Bhan 88 Vol. 3 SCC 57 and Gopal Saran Vs. Satya Narayan 1989, Vol.-3 SCC 56 and in para No. 6 held as under: -
If the instant case is considered in the light of the aforesaid principles laid down by this Court it cannot be said that the appellant has either sub-let or parted with the possession of apart of the premises in favour of Mahendra Singh who is brother-in-law of the appellant and is also employed with the appellant. Mahendra Singh is a tenant under the respondent in respect of room marked 'J' in the site plan (Ex.A-1). The mere user of the kitchen and latrine by Mahendra Singh while residing in the portion let out to him the respondent cannot mean that the appellant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of Mahendra Singh.
16. The Hon'ble Supreme Court in case of Jagannath Vs. Chandrabhan, AIR 1988 SC-1362, have occasion to consider the meaning of words `sublet' `assigned' or other wise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord and after considering the matter have concluded in para No.6 as under: -
It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant, user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of Cl. (b) of S. 14(1) of the Act. Even thought the father had retired from the business and the sons had been looking after the business in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e. his sons, it cannot be said that the tenant had parted with possession.
In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of S. 14 (1) (b) of the Act.
17. The Hon'ble Supreme Court in case of United Bank of India Vs. Coocks & Kelvey properties (P) Ltd. has observed as under:-
Therefore, the only conclusion that could be reached is that though exclusive possession of the demised premises was given to the trade union, the possession must be deemed to be constructive possession held by it on behalf of the bank for using the premises for trade union activities so-long as the union used the premises for trade union activities. The bank retains its control over the trade union whose membership is only confined to the employees of the able conclusion is, that there is no transfer of right to enjoy the premises by the trade union exclusively, for consideration. Thereby, the existence of consideration an ingredient of the subletting has not been present to hold that the respondent had sublet as would make it liable for eviction under Section 13 (1) (a) of the Tenancy act.
18. In Joginder Singh Sodhi Versus Amar Kaur (2005) 1 SCC 31 the Apex Court has observed as follows:
22. It was then contended by the learned counsel for the appellant that Respondent 2 was the son of Respondent 1 and since he was not a stranger, no presumption could be raised that he was a sub-tenant. We are unable to uphold even that contention. In our judgment, for deciding the question whether the tenant had created sub-tenancy, the relationship between the tenant and sub-tenant is not material. There is no privity of contract between the landlady and Respondent 2. He was, therefore, a stranger to the landlady. She let the property to Respondent 1 who was the tenant. Respondent 1 was bound to occupy the property as per the rent note executed by him wherein even undertaking was given by him that he would not part with possession or allow any other person to occupy the property. In spite of the rent note and undertaking, if without the written consent of the landlady, Respondent 1 had inducted Respondent 2 as his tenant or had parted with possession in favour of Respondent 2, who was staying separately and yet found to be in exclusive possession of the shop, sub-tenancy was established.
19. In Roop Chand Versus Gopi Chand Tholia (1989) 2 SCC 383 the Apex Court has observed as follows:
It may be recalled that the decree for eviction against the appellant has been passed on the ground that though subletting of the premises for rent has not been proved, yet the appellant must be held to have parted with possession of a portion of the premises to the club and such parting with possession would attract Section 13(1)(e) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short the Act). On a reading of sub-clause(e) of Section 13(1), it is seen that a tenant will render himself liable for eviction if he has "assigned, sublet or otherwise parted with the possession of, the whole or any part of the premises without the permission of landlord." Consequently even if a tenant parts with possession of the whole or any part of the premises without assigning or subletting the premises, he would still be liable to be evicted from the premises under the Act. If from this perspective, the user of the premises by the club is examined, it can certainly be held that the appellant had parted with the possession of the premises as envisaged in clause (e) of sub-section 1 of Section 13. This conclusion is warranted by several factors. Admittedly, when the club began to function in the leased premises, a name board carrying the name of the Club came to be exhibited in the premises. It is also admitted that the members of the club assemble at the premises everyday and play cards and other indoor games from evening till about midnight. Though the appellant would say that the club members cannot have access to the premises unless he or in his absence his brother or son opens the premises, there is no evidence to show that the appellant had at any time exercised his right to exclusive possession and kept the premises locked and denied the members of the club entry to the premises. That apart there is a significant fact which has escaped the notice of the Appellate Court and the High Court viz that the club has its registered office at the leased premises. Section 146 of the Indian Companies Act enjoins every company to have a registered office to which all communications and notices may be addressed. Once a company has a registered office it is bound to comply with several provisions of the Companies Act, viz. (a) the register of members is to be kept there (Section 163; (b) the right of inspection has to take place there (Section 163); (c) the register of directions, etc., is also to be kept there (Section 303): (d) the account books are to be maintained there unless the directors decide otherwise (Section 20): (e) the register of mortgages and charges and copies of registered documents are also to be kept there (Section 143); and the right of inspection of them is to be exercised there (Section 144). (f) service of documents should be effected there. These requirements of the Act have to be complied with by the club by virtue of its registered office being situated in the leased premises. The appellant cannot prevent the club from performing its statutory duties so long as the club has its registered office in the premises. Hence this factor also warrants the view that the appellant had parted with possession of the major portion of the premises to the club. In such circumstances we see no merit in the contention of the appellant that the user of a portion of the premises by the club is only of a permissive nature and that there was no parting with possession of the premises to the club. The Appellate Court and the High Court were therefore, right in holding that the user of the premises by the club would amount to the appellant having parted with possession of a portion of the premises" as contemplated under Section 13(1)(e) of the Act.
20. On the basis of the oral and documentary, the learned first appellate Court has observed that the burden to prove subletting is on the plaintiff. It is further observed that PW.1 Jivan Lal, in his statement has deposed that the defendant after putting wooden partition wall in the disputed property, sublet one portion of it to Rajkamal Watch Co, where shop in the name and style of Rajkamal Watch Company is running. The rest of the portion is being used by the defendant himself. Rajkamal Watch Company was registered with the Sales Tax Department and Income Tax Department and the defendant was not its partner. The furniture in the shop belonged to Rajkamal Watch Company.
21. The other witnesses of the plaintiff also deposed that in one portion of the disputed shop, business in the name and style of Rajkamal Watch Co. was being run.
22. PW.6 MC Kowal, has proved the partnership-deed (Ex.6/1) of Rajkamal Watch Company, according to which, its partners were Gulab Rai and Govind Ram. The first assessment of the firm was in the year 1962-63. Thus, in view of the partnership deed, the contention of the defendant that as per the partnership deed, two of his sons were running the partnership firm becomes unbelievable.
23. It is also observed by the learned first appellate Court that from a perusal of the partnership deed (Ex.6/1), it is clear that there were two partners of Rajkamal Watch Company namely, Gulab Rai and Govind Ram. The percentage of loss and gain between both the partners was half and half and the entire business capital was brought by Gulab Rai, on which no interest was payable. Son of the defendant was the working partner of the firm who, in addition to half the profits, was entitled to Rs.100/- per month remuneration. Govind Ram was liable to maintain all the books of account of the firm and he was also liable to spend his entire time looking after the business of the firm. One of the terms of the partnership deed was to the effect that on death of any of the partners the firm was not to be dissolved. Instead the legal heirs of the deceased partner were entitled to see the documents of the firm regarding the business of the firm. In the event of any dispute, defendant Asha Ram Sindhi was to be appointed as Arbitrator. If the the defendant Asha Ram had any interest in the partnership or in Rajkamal Watch Company, then Gulabrai and Govind Ram, partners of the firm, would not have agreed to appoint him as an Arbitrator. In such a situation, it is proved that the defendant put a wooden partition in the disputed premises and handed it over to Rajkamal Watch Company and had relinquished his possession over the same. The factum of putting wooden partition has been accepted by the defendant in his written statement and also in the reply to the notice issued to him on behalf of the plaintiff.
24. It is further observed by the first appellate Court that PW.3-Kapur Chand, though has stated that the defendant was running the watch shop for 5-7 years, the statement of this witness does not help the defendant as the defendant has not stated that he is himself running the watch shop. Instead he stated that both his sons were carrying out the business of Rajkamal Watch Company.
25. From the discussions hereinabove, it is clear that the plaintiff-appellant has been able to prove the fact that there was no control of the defendant on Rajkamal Watch Company The defendant has admitted that he was running his business of cycles in one portion of the disputed premises and, the business of Rajkamal Watch Company was being carried out in another portion. Partnership deed of Rajkamal Watch Company has been produced and exhibited.
26. It is further observed by the learned first appellate court that in the instant case, neither the defendant nor Raj Kamal Watch Company produced the Income Tax Return, books of account etc. in the Court. Had such document been produced then a presumption would be drawn against the defendant that Rajkamal Watch Compay was making payment of rent of its portion to the defendant. From the evidence produced on record by the plaintiff it is proved beyond that Rajkamal Watch Company was running its business in one portion of the rented premises, which was partitioned by the defendant by putting a wooden partition and that the defendant has no personal interest in Rajkamal Watch Company. He also removed his possession over the portion and handed over it to Rajkamal Watch Company.
27. After discussing the conclusions drawn by the first appellate court, now this court is under obligation to find out whether the aforesaid conclusion of the first appellate Court that the tenant-appellant has parted with a part of the premises in dispute is perverse? This is precisely the substantial question of law, on the basis of which this appeal was admitted by this Court on 12/03/1993.
28. The Hon'ble Apex Court in the case of Gelina Coelho Pereira (Ms.) and Others Vs. Ulhas Mahabaleshwar Kholkar and Others has laid down various parameters, on the basis of which the Courts must draw the conclusions whether or not subletting / parting with possession of the premises by the tenant is proved. The said parameters as laid down by the Apex Court are as under:-
25. The legal position that emerges from the aforesaid decisions can be summarised thus:
(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and 9two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount ot proof unless rebutted.
29. On the basis of the above legal position, this Court has to analyze whether the plaintiff has discharged the initial burden of proving that had the defendant indeed sublet the disputed premises.
30. It is an admitted fact that in one part of the rented shop, business in the name of Raj Kamal Watch Company is carried out. It is also an admitted fact that by fixing a partition, the disputed shop was divided in two parts. In one part, the business in Cycle is carried out by the defendant himself and in the other part, business of Raj Kamal Watch Company is carried out. (DW-1)-Asha Ram, admitted in his cross examination that in one part of the premises, the business of Raj Kamal Watch Company is carried out and in the said business, his father-in-law, Shri Gulab Rai, and his son Govind Ram are partners.
31. It is revealed from the partnership-deed Ex.-6/1 that in Raj Kamal Watch Company the son of defendant-Govind Ram and father-in-law of defendant are partners and the defendant-Asha Ram is not a partner in the said firm and is not concerned with the said business. It is also revealed from the partnership deed Ex.-6/1 that an arbitration clause exists which provides that if any dispute arising out of the partnership or all of the interpretation, operation or enforcement of the terms of partnership between the parties, the same shall be referred to the arbitrator i.e. defendant-Asha Ram. It is clear from this that defendant-Asha Ram is not concerned with the business of Raj Kamal Watch Company.
32. From the material on record it stands established that son of the defendant and defendant's father-in-law are in exclusive possession of a part of the tenanted premises therefore, the burden shifts on the defendant to prove the nature of the possession of the strangers. However, the defendant has not been able to prove that the defendant has not relinquished his physical possession over that part of the premises. There is no evidence to prove that the defendant has put in any capital in the business of Raj Kamal Watch Company or that he was going to gain any profit from that business. In fact, the evidence establishes if any dispute arises with regard to Raj Kamal Watch Company then the defendant-Asha Ram will act as an arbitrator. It cannot be disputed that only that person is appointed as arbitrator by the parties who have no interest in the subject matter. Therefore, this fact speaks volume against the defence of the defendant that he has not parted with or sublet the part of the tenanted premises. Since, the defendant has not actively associated with the partnership business of Raj Kamal Watch Company therefore, a strong inference of subletting is drawn and the defendant has failed to rebut the same. There is no evidence to prove that at the time when the defendant parted with the possession of the part of the rented premises and his son and father-in-law came in exclusive possession over the same, the consent of the landlord was obtained. Although, there is no documentary evidence to prove that the defendant has obtained any compensation or is getting any rent from sub-tenants but looking to the relationship between defendant and sub-tenants, it was not possible for the plaintiff to bring on record any direct evidence regarding this fact. Even otherwise, the fact of subletting has been regarded as a secret agreement between tenant and sub-tenant. The material on record, including the deed of partnership, goes a long way to establish that the tenant has sublet the part of the premises. Therefore, the burden lay upon the defendant to establish that no compensation or rent is received by him from the sub-tenant. This fact could have been proved from account books maintained by him and by Raj Kamal Watch Company. However, none of the account books were produced by them. Therefore, the real nature of the transaction is that the defendant has given upon his control over the disputed portion and handed over the exclusive possession to Raj Kamal Watch Company.
33. The findings recorded by the learned first appellate Court are based on thorough examination of the pleadings as well as oral and documentary evidence produced by the parties. The learned first appellate court has neither improperly admitted nor rejected any evidence. This Court is in full agreement with the conclusions drawn by the first appellate Court. No finding recorded by the first appellate Court is perverse or contrary to law and facts. The substantial question of law framed by the court is answered accordingly.
From the above discussion, the appeal is devoid of any merits hence, is accordingly dismissed.
(Prakash Gupta),J.
S.R. Kumawat/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Seva Ram Kumawat Jr. P.A.