Celina Coelho Pereira & Ors vs Ulhas Mahabaleshwar Kholkar & Ors

2. Abilio Coelho Pereira - since deceased and now represented by the present appellants, (for the sake of convenience hereinafter referred to as `landlord'), made an application on April 6, 1979 before the Rent Controller, Goa North Division, Panaji for eviction of Mahabaleshwar Ramchandra Colcar - since deceased and now represented by the respondents - (hereinafter referred to as `tenant') on the grounds of subletting and change of user, as provided in Goa, Daman & Diu Buildings (Lease, Rent & Eviction) Control Act, 1968, (for short, `Act, 1968'). The landlord in the application for eviction averred that a building situated at Stres Joao de Castro, Panaji is owned by him; that one of the rooms on the ground floor of the said building was let out to the tenant @ Rs.80/- per month on January 10, 1959 for grocery business; that initially the lease was for a period of two years but later on it was renewed from time to time and the last renewal was made upto October 10, 1969; that on coming into force of Act, 1968 the tenant became statutory tenant; that the tenant without permission or consent of the landlord has transferred/sublet tenancy interest in the premises to Mandovi Tours and Travels; that the transferee/sub-lessee is exclusively running the business in the said rented premises and that no grocery shop is being run by the tenant in the said premises.

3. The tenant traversed the application for eviction and denied that he has transferred/sublet the premises to Mandovi Tours and Travels or that the tenancy interest in the said premises has been let out to the said partnership concern. The 2 tenant's defence in the written statement was that having advanced in age, he was not doing good business in grocery and he thought of starting the business of tours and travels within the territory of Goa and, for this reason, he formed a partnership in the name and style of M/s. Mandovi Tours and Travels and took his son and daughter-in-law as his partners along with one Smt. Kunda Wagh. The tenant further averred that booking and reservation of passengers and tourists is being done from the said premises by the firm and that the possession of the premises continues to be with him exclusively. An additional written statement was filed by the tenant on September 25, 1979 but since nothing material turns on that, it is not necessary to refer to the said additional written statement.

4. During the pendency of the proceedings, an application came to be filed by M/s. Mandovi Tours and Travels through its partner Umesh Kolkar for its impleadment and intervention but the said application came to be rejected on September 15, 1984.

5. It may be noticed here that the original tenant died on May 18, 1986 and his legal heirs (present respondents) were impleaded as respondents.

6. The Additional Rent Controller, Panaji Sub-Division, Panaji-Goa recorded the evidence of the parties and, after hearing them vide his order dated January 16, 1995 held that ground of sub-letting was established and directed the present respondents to vacate the subject premises and put the landlord in possession within 30 days from the date of receipt of the order.

(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

37. For the foregoing reasons, the appeal must be allowed and is allowed. The judgment dated November 29, 2006 passed by the High Court is set aside. The parties will bear their own costs.

........................J (Tarun Chatterjee) ........................J (R. M. Lodha) New Delhi October 30, 2009.