Civil Revision No.2511 of 2001 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2511 of 2001 (O&M) Date of decision: 24.02.2009 Abhey Singh .............. Petitioner Vs. Shri Arjun Singh Kirpa Ram Charitable Trust and another ............Respondents Present: Mr. C.B. Goel, Advocate for the petitioner. Mr. M.L. Sarin, Senior Advocate with Ms. Seema Jagpal, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? -.- K.KANNAN, J. 1. The Rent Controller dismissed an application for ejectment filed on the alleged grounds of subletting and cessation of the tenant to occupy the building. In appeal by the landlord, the decision of the Rent Controller as regards cessation to occupy the building was confirmed but ordered ejectment on the ground of subletting. The aggrieved tenant is the revision petitioner before this Court. 2. Before the Rent Controller, the tenant resisted the plea of the landlord that there had been a subletting by pointing out that the so-called sub-tenant was his own blood brother and he was jointly associated in the business of tenant. In proof of his contentions, the tenant had filed copies of returns submitted before the sales tax Civil Revision No.2511 of 2001 (O&M) -2- authorities and account books where the second respondent had been shown as a partner with the first respondent. The Rent Controller accepted the documents as establishing the defence and also reasoned that the landlord had not even filed any purchase bills that should have been available if the second respondent had been carrying on the business independently. The Appellate Authority reversed the decision, finding fault with the reliance on the documents of sales tax returns and account books and further found the evidence of the first respondent namely the tenant as most untrustworthy. The Appellate Authority also found that the second respondent had taken independent electricity service connection that proved his exclusive possession. The case of subletting according to the Appellate Authority had been comprehensively proved. 3. Learned counsel appearing on behalf of the tenant vehemently argued that the Appellate Authority had committed an error by reversing the decision of the Rent Controller on flimsy grounds. To him, the fact that electricity connection had been taken only in the name of the second respondent could not prove sub- tenancy and the electricity connection itself could not have been obtained during the relevant time without the permission of the landlord. The returns before the sales tax returns had given the details of the business as being run in partnership and the account books, which were produced in Court, were for all the periods from 1981 to 1990. The reliance on all the documents by the Rent Controller was appropriate and the reversal of the decision made by the Appellate Authority, according to the counsel for the revision petitioner did not Civil Revision No.2511 of 2001 (O&M) -3- accord with evidence in law. 4. As pointed out by the learned Senior Counsel appearing on behalf of the respondent, the case relating to sub-tenancy has been decided on factual consideration of the following facts:- (i) It is not merely a case of close relationship between parties amongst the respondents but a case where the second respondent had been admitted to be in possession of the shop but it was explained by the first respondent that they were running a joint business. This according to the counsel for the landlord placed a heavy burden on the tenant to prove that there was no sub-tenancy. (ii) The tenant had admitted in his evidence that there was a document of partnership between respondent No.1 and 2 and the failure to produce the document give rise to an adverse inference against the plea of a joint business between respondent No.1 and 2. (iii) The sales tax return produced by the first respondent was merely a photocopy containing signatures of respondent No.1 and 2 and they were not duly authenticated certified copies. Objection had been taken even at the time of trial for reception of the document and there was no proof of loss of the original or justification for its non-production. (iv) Even a copy of the so-called certificate of registration produced by the tenant and exhibited as RW5/2 merely Civil Revision No.2511 of 2001 (O&M) -4- made reference to the name of the business concerned as M/s Savera Boot House and there had been no reference to the partnership itself. (v) The tenant was having a business in vending fruits in a place 45 kms away from the petition mentioned premises and he had ceased to occupy the petition mentioned premises delivering the possession of the property to the second respondent. (vi) The so-called joint business as also false, as admitted by RW-1 that there was no shoe business at the property in respect of which the accounts and copies of sales tax documents had been produced but the second respondent was carrying on tea business for two years before filing of the petition. It is nobody's case that it was joint business of the first respondent with the second respondent in respect of the tea business. (vii) The electricity connection had been taken independently in the name of the 2nd respondent and not either in the partnership's name or in the name of the first respondent. 5. The factual consideration of all the materials and the discussion rendered by the Appellate Authority are absolutely convincing and he has given adequate reasons for setting aside the order of the Rent Controller. The two grounds, on which the Rent Controller had found in favour of the first respondent that he had been Civil Revision No.2511 of 2001 (O&M) -5- associated with the second respondent, were found to be wholly unjustified. The purchase bills from the second respondent independently were irrelevant so long as it was admitted even by a witness of the respondents that the second respondent was carrying on tea business and not the shoe business. The electricity connection standing in the name of the second respondent was not properly appreciated. It was not merely one instance of the electricity service connection standing in his name to be rejected out of consideration but must be taken as one of the factors among other materials filed to establish that second respondent was carrying on an independent business. 6. The cases cited by counsel for both sides are brought out only for rendering a comprehensive judgment. The counsel for the revision petitioner refers to a decision in Vinod Kumar and others Vs. Sat Pal 2005 (1) PLR 492 to the effect that without proof of factual parting with possession to the sub tenant, the case of sub- tenancy itself could not be said to be established. The learned Senior Counsel for the respondent refers to a decision of this Court in Ashwani Kumar Prashar and another Vs. Anil Kapoor 2004 (2) RCR 174 that when a tenant transferred his own business to another town and handed over the possession of demised premises to his brother without permission of landlord, it could be presumed that possession had been transferred for some consideration. Smt. Darshana Devi and another Vs. Des Raj Singh and another 1997 HRR 363 was a decision that laid down that if evidence was not produced to show the contribution of partners, the so-called Civil Revision No.2511 of 2001 (O&M) -6- partnership should be taken to be a make believe agreement. In Kartar Singh Vs. Shri Vijay Kumar and Anr 1978 (1) RLR 603, it was found that contention of acquiescence by a landlord for receiving the rent from the sub tenant could take away the right of landlord to obtain eviction since the requirement in law was the consent in writing of the landlord for the said subletting and in the absence of such written consent, no conduct of the landlord in the event of receipt of rent will take away the right. The Hon'ble Supreme Court held in Bhairab Chandra Nandan Vs. Manadhir Chandra Dutt 1988 HRR 199 that a tenant's brother's exclusive possession of the shop during the business was sufficient proof of sub-tenancy. In Ram Avtar Vs. Sushma Kumari and another 2007(2) RCR 342 this Court held in cases where the tenant and the alleged sub-tenant happened to be close relatives or brothers inter se, it would be difficult for the landlord to prove the secret arrangement and if the possession of person other than the tenant was established, the case of sub-tenancy must be taken as proved. 7. All these decisions pointed out to the most decisive issue that the nearness of relationship between the parties by themselves will not give rise to a presumption that such relationship could not establish sub-tenancy. The exclusive possession of a person other than the tenant must be adequately established by such person, who is not a tenant and there will be a presumption drawn in favour of the landlord and transaction is only sub-tenancy. The fact that the tenant had removed himself from the village to yet another business would be a factor to prove that the tenant had foresaken his possession to Civil Revision No.2511 of 2001 (O&M) -7- another person who would be regarded as sub-tenant. 8. All the relevant points have been considered by the Appellate Authority and the order of ejectment passed fully accords with evidence and law. The civil revision petition is, therefore, dismissed, but in the circumstances, there shall be no orders as to costs. Time for eviction is two months. (K. KANNAN) JUDGE February 24, 2009 Pankaj*