Rajasthan High Court - Jodhpur
Bhagwan Singh & Anr vs Smt.Vimla Devi on 16 July, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
SBC Second Appeal No.22/2009
Bhagwan Singh & anr. vs. Smt. Vimla Devi
Judgment Dt: 16/7/2012
1/12
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
Bhagwan Singh & Anr. vs. Smt. Vimla Devi
S.B.CIVIL SECOND APPEAL NO. 22/2009
DATE OF JUDGMENT : 16th JULY, 2012
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
Mr. Manoj Bhandari, for the appellant-defendant-tenants
Mr. M.L.Chhangani, for the respondent-plaintiff-landlord.
REPORTABLE
BY THE COURT:
1. The defendants - original tenants, Bhagwan Singh and sublettee Mohan Singh, both real brothers, have filed the present second appeal under Section 100 CPC against the eviction decree concurrently granted by two courts below in favour of respondent plaintiff-landlord, Smt. Vimla Devi w/o Om Prakash, in respect of SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 2/12 suit shop situated at Tripolia Bazar, Jodhpur. The suit No.79/2002 [(Transferred Suit No. 46/2004) Vimla Devi vs. Bhagwan Singh & Anr.] was filed by the landlord - Vimla Devi on the ground that suit shop was given on 18/5/1991 on the montly rent of Rs. 550/- to defendant no.1, Bhagwan Singh. The said defendant stopped giving rent from 1/11/2001 and the premises in question was sublet in favour of defendant no.2 - Mohan Singh. The Food Licence for running sweet shop (फ क फकट ) was held by defendant no.2 - Mohan Singh only. The learned trial court on the ground of subletting the suit shop by defendant no.1 in favour defendant no.2 decreed the suit on 9/8/2004.
2. The first appeal filed by the defendant-tenants was also dismissed vide judgment of learned Addl. District Judge (Fast Track No.4), Jodhpur on 28/11/2008 on the ground of aforesaid subletting of the suit shop and the appellate court affirmed the eviction decree. The defendant-tenants are before this Court in the present second appeal.
SBC Second Appeal No.22/2009
Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 3/12
3. Mr. Manoj Bhandari, learned counsel appearing for the appellant-defendant-tenants relying upon the following case laws vehemently submitted that there was no parting with the possession by the defendant no.1 - Bhagwan Singh in favour of defendant no.2 Mohan Singh and being real brothers, the defendant no.1 was looking after the business here at Jodhpur also and defendant no.1-Bhagwan Singh also frequently came down from Bikaner to Jodhpur to look after the said business and, therefore, the eviction on the ground of subletting is not justified and substantial question of law arises in the matter.
(i) Binj Raj vs. Sukhdeo & Anr. - 2006(2) DNJ (Raj.) 868
(ii) Delhi Stationers & Printers vs. Rajendra Kumar - (1990) 2 SCC 331
(iii) Jagan Nath (deceased) through L.Rs vs. Chander Bhan & Ors. - (1988) 3 SCC 57
(iv) Hardev vs. Jaidev through his legal representatives - RLW 2000(1) 408
(v) Parvinder Singh vs. Renu Gautam & Ors - (2004) 4 SCC 794 SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 4/12
(vi) Basanti Lal vs. Ram Chander - 2009 (4) WLC 566
4. On the other hand, Mr. M.L.Chhangani, learned counsel appearing for the respondent-plaintiff-landlord relying on the various case laws urged that the findings returned by the courts below are the findings of fact and they are sufficient ground for eviction on the basis of subletting. He urged that the defendant no.1, Bhagwan Singh, is regularly residing only at Bikaner which is at about 250 kms away from Jodhpur and the Food Licence was held in the name of defendant no.2, sublettee-Mohan Singh only, therefore, it was a case of independent running of business by the defendant no.2. There was neither any partnership between the two brothers nor the defendant no.2 could be said to be working as an employee of the defendant no.1. He, therefore, submitted that no substantial question of law arises in the present second appeal and the same deserves to be dismissed.
5. Having heard the learned counsels and after going through the reasons given in the impugned orders, this Court is satisfied that no substantial question of law arises in the present second appeal filed SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 5/12 by the defendants-tenants.
6. The judgments relied upon by the learned counsel for the appellant-defendants, Mr. Manoj Bhandari, are not applicable to the facts of the present case. The same are discussed hereunder:-
(i) In Binj Raj vs. Sukhdeo (supra) the defendant no.2 being brother of defendant no.1 was merely sitting in the shop which was being run by the defendant no.1 - the original tenant and, therefore, it was held not to be a case of subletting and parting with the possession. This case is distinguishable on facts. In the present case, the defendant no.1 - Bhagwan Singh lives at Bikaner, whereas defendant no.2 - Mohan Singh, his brother, is running the independent business at Jodhpur under Food License in his own name for last number of years. There is no evidence on record of defendant No.1 Bhagwan Singh also doing business at Jodhpur.
(ii) In Delhi Stationers & Printers vs. Rajendra Kumar (supra), the Hon'ble Apex Court held that mere user of the tenant-appellant's kitchen & latrine by the co-tenant while residing in the portion let out SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 6/12 to him by the respondent-landlord cannot mean that the appellant had transferred the exclusive right to enjoy the kitchen and latrine and had parted with the legal possession of the said part of the premises in favour of co-tenant. Such are obviously not the facts of present case, which is not a case of a shared residential accommodation and, therefore, this case is also not applicable.
(iii) Similarly, in Jagan Nath vs. Chander Bhan & Ors (supra), the Hon'ble Apex Court held that when tenant, belonging to a joint Hindu Family, was carrying on proprietary business with the help of his sons in a part of the residential-cum-commercial premises and after his retirement from the business his sons took it over by forming a partnership, there cannot be a presumption of parting with possession of the premises by the tenant (father) in favour of his sons, so as to constitute a case of subletting. Again, the facts of the said case are apparently distinguishable from the facts involved in the present case.
(iv) In Hardev s. Jaidev through his legal representatives (supra), this Court held that where the tenant parting with possession in favour of his mother and brother's wife and no cogent and convincing SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 7/12 evidence was led by the plaintiff, the lower court committed error in granting the decree of eviction as the mother and brother's wife are prospective heirs. No such facts are obtaining the present case, therefore, this judgment is also not applicable.
(v) In Parvinder Singh vs. Renu Gautam & Ors. (supra), the Hon'ble Supreme Court held that the test is whether tenant has parted with the user and control of tenancy premises and deed of partnership has been drawn up as an indirect method of collecting consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction, tearing veil of partnership in this regard is permissible and decree of eviction on the ground of subletting can be granted. The matter was remanded by the Supreme Court to the appellate authority for decision afresh in the said case. The ratio of the said judgment indirectly helps the plaintiff in the present case rather than the defendants as even though no case of partnership has been set up in the present case, the real brother - defendant no.2 is running the independent business without any active control or involvement in day-to-day affairs by the original tenant, defendant no.1 - Bhagwan Singh and, therefore, even if such a veil is claimed SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 8/12 that stands removed with the findings of courts below based on evidence.
(vi) In Basanti Lal vs. Ram Chander (supra), this Court did not accept the subletting where the father of appellant Basanti Lal frequently came to the suit shop in question from his residence at Hindoli, a nearby village about 9 kms away and since all his three sons carried on different business at Kapasan, he used to come to Kapasan frequently and even sat for doing business at the said suit shop along with his son - present defendant - appellant and, therefore, there was no question of subletting by the father in favour of his son. The facts of said case are also distinguishable and are of little avail to the appellant defendants. Here is a case of two brothers doing independent businesses at places Bikaner & Jodhpur, 250 kms away & original tenant having parted with the possession to his own exclusion in favour of sublettee brother Mohan Singh.
7. On the other hand, the judgment of this Court in the case of Chain Singh vs. Mahendra Singh (S.B.Civil Second Appeal No. 114/1997) decided on 4th August, 2011, this Court in almost similar SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 9/12 circumstances affirmed the decree of eviction by observing as under:-
"12. Having heard learned counsels for the parties, this court is of the considered opinion that there is no force in the present appeal of the defendant-appellant and the learned trial court has rightly come to the conclusion that it was a case of subletting by the original tenant, Chain Singh in favour of sublettee, Prem Singh. No evidence of partnership was brought before the learned courts below, which could be only in the form of a written instrument duly registered under the Partnership Act. Even if assuming for arguments sake that oral partnership was there, no Books of Accounts for sharing of profit equally by them and mutuality of acting on behalf of other, was proved before the learned courts below. Mere close relations of two, cannot be held to be a case of implied partnership. The sublettee, Prem Singh was admittedly running a "Pan" shop near the suit premises. The parting of possession to the exclusion of the original tenant thus was proved by the plaintiff-respondent in the present case and, therefore, the eviction decree deserves to be upheld. The substantial questions of law are thus answered in favour of plaintiff-respondent and against the defendant-appellant-tenant."SBC Second Appeal No.22/2009
Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 10/12
8. The Hon'ble Supreme Court recently in the case of Ghisalal M. Agrawal vs. Rameshwar @ Ramu Jawaharlal & anr. - (2012) 5 SCC 758 has held that High Court cannot be held justified in reversing the concurrent findings of two courts below giving eviction decree. However, since tenant was in the premises for last five decades, the Apex Court granted one year's time for delivery of vacant possession to the appellant-landlord.
9. In Subhash Sharma vs. Chhinna Ram & Ors. - 2010 (88) AIC 438, the coordinate bench of this Court dismissed the appeal against the concurrent judgments of two courts below where objector claiming direct tenancy from landlord without discharging his burden with any material except saying that he is a direct tenant, the Court held that such objections are unsustainable and eviction decree was upheld.
10. In view of aforesaid discussion, this Court finds that the findings returned by the two courts below are essentially the findings of fact, which cannot be said to be perverse but on the other hand they are based on cogent material and relevant evidence and, therefore, in SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 11/12 the considered opinion of this Court, no substantial question of law arises and the present second appeal of defendants deserves dismissal and same is accordingly dismissed with no order as to costs.
11. The appellants-defendants shall hand over the peaceful and vacant possession of the suit property to the respondent within a period of six months from today and shall pay mesne profit @ Rs.3000/- per month commencing from July, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent upto the period of handing over the vacant possession to the landlord and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The tenants shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one SBC Second Appeal No.22/2009 Bhagwan Singh & anr. vs. Smt. Vimla Devi Judgment Dt: 16/7/2012 12/12 month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of six months from today, besides execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the opposite party and learned courts below forthwith.
(DR.VINEET KOTHARI), J.
item no. 33 baweja/-