1 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Civil Revision No. 159/2007 a/w Civil Revision No. 216/2007. Date of Order: 06-2-2009. ------------------------------------------------------------------------- Ashu Chopra Vs. Neghat Khanam Coram: Hon’ble Mr. Justice Sunil Hali, Judge Appearing counsel For the petitioner(s) : Mr. Anil Sethi, Advocate For the respondent(s) : Mr. Virender Bhat, Advocate ____________________________________________________________ ______ i) Whether to be reported in Press, Journal/Media Yes/No ii) Whether to be reported in Journal/Digest Yes/No The parties are litigating over possession of a shop bearing No. 26 North Block, Bhau Plaza, Jammu. Petitioner in Civil Revision No. 159/07 claims to be a tenant in the aforementioned shop of the respondent, while as petitioner in Civil Revision No. 216/07 claims to be in possession of the shop but admits the respondent in Civil Revision No. 216/07 as partner in the said shop. Both the parties are aggrieved by the orders of the courts below in the present revision petitions. In order to appreciate the controversy, it is necessary to give brief facts of the case. A civil suit has been filed by the petitioner before the trial court, claiming to be a tenant of the respondent. It is further contended that the shop has been let out to the petitioner on a monthly rent of Rs. 7000/-. Petitioner after taking possession of 2 the shop, started business of kids wear, readymade garments and artificial jewelry under the name and style of M/s Abheer Kids Wear. In support of his contention, petitioner has shown the following evidence that he is in possession and owner of the firm: a) The Registration with the Labour Department. b) Stocks insured with the Insurance Company. c) Cash Credit facility issued by the Oriental Bank of Commerce in the name of plaintiff as the owner. d) VAT registration in the name of plaintiff as the owner. The grievance of the plaintiff – petitioner in the suit was that respondent – defendant was trying to evict him forcibly from said shop. On the other hand, case of the respondent is that petitioner has been allotted shop by the Jammu Development Authority vide lease deed executed on 27-9-1999. He denies the possession of the plaintiff – petitioner. It is further averred that Clause-IV of the lease deed executed by the defendant clearly debars creation of sub- tenancy or transferring the possession of the property to any other person or entering into any partnership with a person by surrendering his possession. Respondent- defendant however, admits that he had entered into partnership with the plaintiff in respect of which a partnership deed was executed, which also stands registered. It is further averred that partnership was at will and could be dissolved by giving a notice to the other side. The partnership stands dissolved and 3 the petitioner – plaintiff is not entitled to remain in possession of the shop as a partner. The petitioner – plaintiff had filed an application for an interim injunction seeking stay of her dispossession by the defendant – respondent. The trial court directed as under: “ i) That plaintiff would open the shop and dispose of the stocks lying in the suit shop within two months or till stocks are sold , whichever is earlier. ii) That plaintiff would not purchase fresh stocks. iii) She would deposit the sale proceeds in the court, to be preserved for payment to successful party. iv) An inventory of stocks lying in suit shop be made. v) The plaintiff would surrender the suit shop to defendant.” Against the aforesaid order, an appeal was filed by both the parties before the Ist Additional District Judge, Jammu. The appellate court upheld the order of the trial court. However, in respect to the direction that the plaintiff will surrender possession of the shop to the defendant, the appellate court, did not concur with the direction of the trial court that the possession of the shop shall be handed over to the defendant after the stocks are sold. It has been held that the plaintiff is not in possession of the shop and no such direction can be given. A categoric finding recorded by the appellate court is that the defendant is undoubtedly in possession of the shop. Any direction to the plaintiff to handover the possession would mean 4 putting the plaintiff in advantageous position. Both the parties have filed revisions in this court. The case has peculiar feature, as both the parties have not come to the court with clean hands. The plaintiff claims to be a tenant and the defendant claims that he is partner. The truth lies somewhere in between. One thing which clearly emerges from the stand taken by the parties, is that the plaintiff is in possession of the shop either as a tenant or as partner. The shop, as already stated hereinabove, was allotted to the defendant-respondent with clear-cut condition that the said shop shall neither be let out nor would he enter into any partnership with any person. Admittedly, the plaintiff has not been put in possession by the JDA but by the defendant. It is the positive case of the defendant that he had entered into partnership with the plaintiff. Whether the plaintiff is partner or tenant , is the subject matter of trial, but the fact remains that the plaintiff is in possession of the shop with the consent of the defendant, who claims that he is a partner. Both the courts below admitted that huge stock lying in the suit shop belong to the plaintiff and they have permitted the plaintiff to dispose of the said stock. From the facts, the following things emerge:- i) That the shop in question belongs to JDA and the same has been allotted to respondent- defendant. ii) That the petitioner- plaintiff has been running business in the said shop whether as tenant or as partner, is not in dispute. iii) That even the defendant also admits possession of the plaintiff on the shop as partner. 5 In order to determine this controversy while granting or refusing injunction, it is necessary to protect the lis during the pendency of the suit. Any direction, which has the effect of non-suiting either of the parties would tantamount to rejecting the suit at the thresh hold. What is appropriate order can be passed without making any observation on the merit of the controversy, is the sole question, which is to be determined in these revision petitions. Both the courts below have permitted the plaintiff- petitioner to dispose of the stocks. Inherent in such direction is the fact that stock is owned by the plaintiff – petitioner and the right to dispose of the same is with him thereby admitting his possession on the shop. The trial court had directed the plaintiff to surrender the possession but the said direction has been modified by the appellate court by stating that the plaintiff is out of possession and his entering in the shop was only for the purpose of disposing of the stock. The directions of both the courts tantamount to holding that the plaintiff- petitioner has no right to remain in possession of the shop after disposal of the stock. The consequence whereof would be dismissal of his suit. As a matter of fact, by allowing this direction to remain in force, the suit will stand disposed of once the stock is disposed of by the plaintiff. There survives nothing for the trial court to decide . I say so for the following reasons: a) Once the plaintiff disposes of the stock, defendant would automatically take over the possession of the shop. 6 In my opinion, both the courts below have erred in their approach while disposing of the application for grant of stay. In order to ensure that the lis is protected during the course of trial, following things are required to be noticed: What is the nature of possession the plaintiff claims. Possession, in fact, is a relationship between the person and a thing. To possess them is to have them under physical control. Anything, which is not under human control cannot form the subject matter of possession. The test then for determining whether a person is in possession of anything is whether he is in general control over it. Possession in law envisages that the possessor has to be given certain legal rights in order to continue in possession. This primary right in rem can be supported by various sanctioning rights in personam against those who violate the possessor’s primary right. He can be given a right to recover compensation for interference and for dispossession, and a right to have his possession restored to him. The other concept with regard to possession is immediate and mediate possession. In law one person may possess a thing for an on account of some one else. In such a case, the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed as mediate possession. The mediate possession can also be divided into three aspects : i) Any person who holds the possession for an on behalf of the other, claims no interest of his own. 7 The person on whose behalf he holds the possession, is the sole occupier of the property. ii) The second kind of mediate possession is the direct possession within one who holds possession both on his own and on behalf of the other person. It is a case of borrower or tenant at will. The original possessor does not lose possession of a thing because he has lent it to someone who acknowledges his title to do it and is prepared to return it to him on demand. The essence is that he holds it and looks after on behalf of the person, who is in direct possession . iii) The third kind of mediate possession is the immediate possession In the present case, the defendant on his own had admitted that the plaintiff is a partner and permitted him to use shop for running the business. While scrutinizing the contents of the partnership deed, which has been registered, it is necessary to reproduce the clauses of the said deed, which are as under: 1.“ That the party of Ist part shall allow the shop aforesaid to the used for running the aforesaid business and this shall be treated as her investment in the partnership. In lieu of investment to the first party of the property comprising of shop abovementioned, the first party shall be entitled to receive an amount of Rs. 7,000/- per month as her share in the partnership 8 from the profits of the concern. The remaining profits shall be given to the second party. 2………… ….. ….. 3. That the partnership in so far as party of Ist part is concerned, shall be terminable at her option by giving an oral notice of twenty four hours to the second party. It is understood that the possession of the ship is and shall always remain with the Ist party who shall keep the keys of the shop in her possession at all times. It is the first party who shall open the shop in the morning and close it in the evening. After closing of the shop, the keys shall remain with the Ist party. The possession shall be deemed to be with the Ist party for all practical purposes. 4. ………..” A conjoint reading of both the clauses would reveal that the shop has to be treated as an asset of partnership. Clause-3 of the partnership deed states that the possession of the shop will always remain with the first party, who is defendant – respondent and the second party shall only carry on the business. While construing two clauses of the partnership deed, it clearly emerges that the shop in essence, was in possession of the petitioner – plaintiff , who was running his business on the said shop. This can be said to be a mediate possession, if the stand of the respondent has to be accepted. The stand of the respondent that he is partner, has been its own connotation in law. The partnership is not created by status but arises out of contract. The stand of respondent that the partnership has been dissolved and the petitioner is required to be evicted from the 9 shop, is not well founded. Even if it is assumed that the partnership deed has been dissolved , the necessary corollary would be that assets and liability of the partnership have to be determined as provided by the Partnership Act. Even after the dissolution of the firm, the authority of each partner continues. The partners are bound by the firm and other mutual rights and obligations. Notwithstanding the dissolution, it may be necessary to bind up the affairs of the firm. It cannot be said that once the partnership stands dissolved, there is an automatic ouster of the partners from the firm, more particularly when it is found that the stocks in partnership belong to the petitioner. The petitioner has categorically stated in the suit that he is tenant and not partner. He submits that the partnership deed relied upon by the defendant – respondent does not satisfy the requirement of partnership. The interpretation of the deed would reveal that it is not in essence a partnership but a rent deed. These are two rival contentions raised by the parties, which can be adjudged during the course of the trial but, what slurs on the face of it, is that the petitioner has enjoyed the possession, whether as tenant or partner, cannot be disputed . The report of the Commissioner also reveals that all the stocks and other infrastructure in the shop belongs to the petitioner. The possession of the petitioner is required to be protected while deciding the application under Order 39 Rules 1 and 2. Both the courts below after having admitted that the stocks 10 belong to the petitioner, have denied him the right to be in possession. I, therefore, allow Revision Petition No. 159/07, set aside the orders of the courts below and direct that the petitioner shall be allowed to run the business in said shop during the pendency of the suit and no interference shall be caused by the respondent- defendant in this regard. Revision Petition No. 216/07 is dismissed. Let the parties appear before the trial court on 25-2-2009 ( Sunil Hali ) Judge Jammu: 06-2-2009 RSB,Secy.