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[Cites 3, Cited by 0]

Madhya Pradesh High Court

Smt.Puja Jainsinghani vs Bhajan Lal [D] Lrs Smt.Goma Bai And Ors on 22 December, 2016

                                     -( 1 )-         S.A. No.1470/2005

                  HIGH COURT OF MADHYA PRADESH
                         BENCH AT GWALIOR

SINGLE BENCH:
                         (Vivek Agarwal, J.)

                      S.A. No.1470/2005

.....Appellant               :      Smt. Puja Jaisinghani


                                  Versus

.....Respondents               :     Bhajan Lal (Dead) Th.L.Rs. & Ors.

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Shri Harish Dixit, learned counsel for the appellant.
Shri Mayuresh Jain, learned counsel for the respondents.
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                                     JUDGMENT

(22/12/2016) This second appeal has been filed by the plaintiff being aggrieved by the judgment and decree dated 31.3.2005 passed by the Court of 6th Additional District Judge, Gwalior, in Civil Appeal No.39-A/2004 reversing the judgment and decree dated 31.3.2004 passed in Civil Suit No.1-A/1998 by the 2 nd Civil Judge, Class II, Gwalior.

2. The facts which are not in dispute in the present case are that plaintiff had filed a suit seeking declaration that she is the legal tenant of the shop shown in the map attached to the suit and further sought relief of permanent injunction that she be not evicted from the suit premises without following the procedure of law. It is also an admitted position that a counter claim was filed by the owner of the property claiming that the defendant requires the suit premises for the bonafide need of his grand son Harsh @ Sonu son of Ashok, and therefore, in absence of any other commercial space in the city of Gwalior, he is entitled to a decree of eviction. It was also submitted that plaintiff was not paying the rent after March, 1997 and she had stopped transacting the business from the said -( 2 )- S.A. No.1470/2005 suit premises and suit premises is being used by one Jay who was carrying on his business in the name of Modern Bread. Since plaintiff has created a sub-tenancy and the possession of that sub- tenant Jay is on the suit premises, therefore, by virtue of counter claim he sought vacant possession of the suit premises alongwith arrears of rent and mesne profit.

3. Learned trial Court framed as many as 7 issues and held that issue No.1 that defendant wanted to evict the plaintiff through use of force was not found to be proved. Similarly, second issue regarding desire of the defendant to enhance the rent to a sum of Rs.1,500/- was also not found to be proved. The third issue regarding bonafide requirement of the defendant was also not found to be proved, but it was found that defendant had no other space except the suit premises for the purpose of business within the boundaries of Municipal Corporation, Gwalior. Learned trial Court also did not find the issue of creation of sub-tenancy to be proved and accordingly both the suit and the counter claim were dismissed.

4. It is an admitted position that defendant Goma Bai widow of Bhajanlal and their legal heirs had preferred an appeal before the sixth Additional District Judge, Gwalior, being aggrieved by the judgment and decree dated 31.3.2004 and no appeal was filed by the plaintiff against the said judgment and decree.

5. It is not in dispute that the ground taken by the defendant in the appeal regarding bonafide requirement for his grand son was taken into consideration by the trial Court and also the fact that sub-tenancy was created and rent was not regularly paid, therefore, without appreciating the evidence on record the counter claim was dismissed.

6. Learned first appellate Court after adverting to the evidence and legal position held that the counter claim was not maintainable for the bonafide requirement of the grand son inasmuch as per the law laid down by this Court in the case of Nandkishore Vs. Sarju Devi as reported in 1974 JLJ 400 and also in the case of -( 3 )- S.A. No.1470/2005 Laxmikant Vs. Harnarayan as reported in MPWN 1992(2) Note 106 the defendant was not entitled to have a decree of eviction on the basis of bonafide requirement of the grand son, but allowed the first appeal on the ground of creation of sub-tenancy by the plaintiff in favour of Jay who was opening and closing the shop and was having possession of the shop. In this regard, evidence of Puran has also been considered who has clearly deposed that earlier he was working in the suit premises and was selling bread but later on shop was transferred in favour of Jay with all facilities.

7. Learned counsel for the appellant has assailed the impugned judgment and decree of the first appellate Court on the ground that Jay was family member of the plaintiff and was not a sub-tenant. It was also mentioned that since Jay was working in the suit shop of the plaintiff since 15-16 years, it cannot be said that plaintiff had parted with the possession of the shop and it is also submitted that first appellate Court erred in overlooking the registration of the business under the Shop Act and income tax returns which were filed to show that plaintiff was the proprietor of the business in the suit premises and erroneously arrived at a finding of creation of sub-tenancy. Reliance has been placed on the judgment of Supreme Court in the case of Mahendra Saree Emporium (II) Vs. G.V. Srinivasa Murthy as reported in (2005) 1 SCC 481 wherein in para 16 the Supreme Court has held that the term "sub-letting" is not defined in the Act, new or old, however, the definition of "lease" can be adopted mutatis mutandis for defining "sub-lease". It has been held that a transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favour of his sub-tenant. Onus to prove sub-letting is on the landlord. If the landlord prima facie shows that occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.

-( 4 )- S.A. No.1470/2005

8. Reliance has also been placed on the judgment of the Supreme Court in the case of Celina Coelho Pereira (Ms) and others Vs. Ulhas Mahabaleshwar Kholakar and others as reported in (2010) 1 SCC 217 in which it has been held that in order to prove mischief of sub-letting as a ground for eviction under Rent Control laws, two ingredients have to be established, (1) parting with the possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession and (2) that such parting with the possession has been done without the consent of the landlord and in lieu of compensation or rent. It is further held that inducting partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. It is also laid down that if the tenant is actively associated with the partnership business and retains the control over the tenancy premises, then tenant may not be said to have parted with the possession. It is further held that 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.

9. In the present case, it has come on record in the evidence of the defendant that Jay was carrying on his business from the suit premises, therefore, in terms of the judgments cited above, onus shifted on the plaintiff to show that what was the nature of relationship between the plaintiff and Jay. It is seen that Puja Jaisinghani was never examined before the trial Court and her power of attorney Vasudev Jaysinghani had filed affidavit under Order 18 Rule 4 CPC. In cross-examination, he admitted that earlier he was working as a salesman of crockery and at that time he was engaged in the work of courier service. He admitted that Jay was living separately. He further admitted that he had not filed documents to show that Jay was working as servant in the shop. No -( 5 )- S.A. No.1470/2005 document was filed to show that what amount of salary was being paid to Jay. He also admitted that on Ex.P/4 where details of the servants are mentioned name of Jay was not mentioned. He further admitted that he had not filed any document to show that Jay was working as a servant since 1990. He admitted that his wife is taken to the shop for some time on scooter. Defendant's witness Vinod Dawani admitted that the shop is in possession of Jay. Jay also admitted in his cross-examination that he was living separately from Puja Jaisinghani. He also admitted that he was not aware of the fact that how many servants were employed by Puja Jaisinghani and what salary was being paid to them. He also admitted that he is not a servant in the shop. Thus, contradicting the stand taken by Vasudev Jaisinghani (PW-1) that Jay was working as servant in the shop. Thus, it is apparent that plaintiff had failed to discharge the burden that what was the nature of occupation of Jay and she continues to hold the legal possession of the tenanted premises. Therefore, the presumption of sub-letting as has been drawn by the first appellate Court amounts to proof in absence of adequate rebuttal by the plaintiff, and therefore, it can be conveniently concluded that there is no illegality in the impugned judgment and decree passed by the first appellate Court calling for any interference or giving rise to any substantial question of law. Thus, the appeal fails and is dismissed.

(Vivek Agarwal) Judge ms/-