Punjab-Haryana High Court
Summat Parshad Jain And Ors. vs Mr. Murari Lal Jain And Anr. on 18 January, 2000
Equivalent citations: (2000)125PLR212
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. Legal representatives of Summat Parshad Jain-petitioners have filed the present revision petition directed against the judgment of the learned Rent Controller, Rohtak dated November 08, 1979 and of the Appellate Authority, Rohtak. dated April 03, 1981. The learned Rent Controller had dismissed the petition for eviction. The said order was upheld by the appellate authority.
2. The facts alleged are that respondent No.l Murari Lal Jain was stated to be the tenant in the property. A rent note is stated to have been executed dated December 29, 1951. Petitioners claimed ejectment on the ground that arrears of rent have not been paid and that respondent No.1 has sublet the premises and drawn his tenancy rights to Sham Lal Jain-respondent No.2, who is in actual possession of the suit premises.
3. There is no dispute that on the first date of hearing, the arrears of rent had been tendered and the sole surviving ground of the eviction was that if the property has been sublet by respondent No.1 to respondent No.2. In the joint written statement, the said fact had been denied. It was denied that Sham Lal was in sole occupation of the shop in dispute. Plea raised was that originally Murari Lal Tara Chand and Bhiku Ram were partners and were carrying on business in the name of Murari Lal, Tara Chand in the shop in dispute. Bhiku Ram retired and Sham Lal joined as the partner. Partnership deed was executed on August 25 1969. Thereafter, Tara Chand also retired and another partnership deed was executed between Murari Lal and Sham Lal. They are carrying on business in the partnership firm in the name and style of Murari Lal Tara Chand. Murari Lal had opened a shop in Haryana Cloth Market, Rohtak in partnership with Manphool Singh, Hira Lal and Tara Chand. Subsequently, Manphool Singh retired from partnership and Jagdish Parshad joined the said partnership concern. Partnership deed was executed on April 01, 1971. Thus, it was asserted that Murari Lal is a partner in the said partnership concern and there is no subletting of the premises.
4. The learned Rent Controller had framed the issues and held that property in question had not been sublet. The petition was dismissed. The petitioners preferred an appeal. The learned appellate authority scanned through the evidence and concluded that respondent No. 1 continued to be a partner and thus it cannot be termed that there is subletting of the property in question. The appeal failed and hence, the present revision petition.
5. At the time of arguments, only the petitioners' counsel had appeared and made his submissions. There was no appearance on behalf of the respondents.
6. The short question that comes up for consideration is that as to whether respondent No.1 continues to be a partner in the Firm or not. It is well settled that partnership is nothing, but an association of the persons. A formal name is given to it. If the tenant forms a partnership and retains the legal control and possession, then it will not be termed as a case of subletting. This question had been considered by the Supreme Court in the case of Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and Ors., A.I.R, 1987 S.C. 1782. The Supreme Court held:-
".....The following important elements must be there in order to establish partnership (1) there must be an agreement entered into by all the parties concerned. (2) the agreement must be to share profits of business; and (3) the business must be carried on by all or any of the persons concerned acting for all. The partnership deeds were there entitling the petitioner to share in the partnership. It is true that in the partnership deeds the bank accounts were not to be operated by the appellant, and further that irrespective of the profit the clause of the partnership deed provided that there should be a fixed percentage of profit to be given to the partner appellant No.1. The appellant was not to share the losses. But there is nothing illegal about it. The appellant was to bring his asset being the tenancy of the premises in question for the user of the partnership."
7. This Court in the case of Firm Ball Ram Nihal Singh, Jind and Ors. v. Panna Lal, (1993-3)105 P.L.R. 269 in a similar case re-dealt with the question in controversy. It was held that the real test to determine subletting is whether the tenant had walked out of the premises and handover its exclusive possession and control to the sub-tenant. If the tenant takes someone as a partner, it cannot be termed as subletting. Same view prevailed with the Gujarat High Court in the case of Girdhalal Chhotalal Zaveri v. Lilavatiben Rati Lal, 1996(1) Rent Control Reporter page 487 and it was held:-
"In view of the facts and circumstances emerging from the record there is no evidence to remotely indicate that the tenant had abandoned his leasehold interest or had lost legal possession in respect of demised shop. It is a well settled proposition of law that if there was a partnership firm, of which tenant of the premises in which the business of the firm was carried on has been a partner, the fact of carrying on the business of the partnership in the demised premises would not ipso facto tantamount to subletting or transfer of interest or assignment, inviting the forfeiture of the leasehold or tenancy rights. This proposition is very well explained and expanded by the apex Court in Helper Girdharbhai v. Sayed Mohammad, 1987(2) Rent Control Reporter 1324 : A.I.R. 1987 S.C. 1782. Decision of the Supreme Court in Madras Bangalore Transport Co. (West) v. Inder Singh, A.I.R. 1986 S.C. 1564, was followed in the aforesaid decision of the Supreme Court. Therefore, the contention that the tenant had entered into a partnership and carried on the business alongwith strangers in the demised shop would disentitle him to continue and his tenancy rights cannot be sustained."
8. Reverting back to the facts of the present case as pointed above the plea offered was that respondent No.1 continued to be the effective partner in all the partnership concerns. Reference has been made to certain partnership deeds to urge that they are fake documents. It appears that earlier one Bhiku Ram was the partner. He retired from the partnership on March 31, 1969. Sham Lal was joined in the partnership concern and fresh partnership deed Ex.R-3 was executed. Respondent had 174th share therein. Tara Chand Jain was one of the partners, but he too retired. A partnership deed was executed which is Ex.R-1. In the new partnership deed, the share of the respondent was 10%. The document on the record do not indicate that it was a fake document. An application had been moved before the income-tax authorities when partnership deed Ex.R-3 was executed. Income-tax Officer. Rohtak granted registration to the Firm. The copy of the order is Ex.R-6. In addition to that copies of the assessment orders of the partnership Firm from the year 1970-71, 1972-73, 1973-74 and 1974-75 have been placed on the record. This shows that income by the Murari Lal was determined with respect to both the firms including the one with Sham Lal. These documents, coupled with the evidence of the partnership deeds on the record clearly show that respondent No.1 continued to be a partner and in this process it cannot be termed that he ceased to be in legal control of the premises. Thus, the learned appellate authority rightly dismissed the petition for eviction and the appeal thereto.
9. For these reasons, the revision being without merit must fail and is dismissed.