Bhag Singh vs Surjan Singh

Dua, J.—Bhag Singh landlord has preferred this revision u/s 15(5) of the East Punjab Urban Rent Restriction Act from the order of the Appellate Authority, Ludhiana affirming the order of the Rent Controller dismissing his application for eviction of his tenant Surjan Singh. Several grounds were raised in the petition for eviction, but as the order of the Rent Controller shows, the only ground pressed related to the allegation of subletting. Apparently, the tenant was alleged to have sublet the building to one Joginder Singh who had installed a few lathe machines in July, 1963. It appears from the Order of the Rent Controller that there was also a previous eviction application which was pending in some other Court, having been presented on 6th. July, 1933, Five or six days after the institution of that proceedings the subletting was effected. At another place, according to the Rent Controller, the subletting had been made long after the institution of the prior proceedings. The landlord had denied that Surjan Singh and Joginder Singh had been carrying on the business in partnership in this building. Surjan Singh appeared in the witness box and deposed that he and Joginder Singh were partners working in this building since 12th July, 1963. and that he had not sublet the building as alleged. Reliance in this connection was placed on the partnership deed Exhibit R. 1 which purports to have been executed on 12th July, 1963. The Rent Controller in a very sketchy order observing that in cross-examination of Surjan Singh, nothing had been brought out throwing doubt on the alleged partnership, rejected the eviction petition. The finding arrived at was that Joginder Singh was not in exclusive possession and control of the building and was working there in partnership with Surjah Singh.

On appeal, it was argued before Shri Murari Lal Puri, Appellate Authority, Ludhiana, that the so called partnership was a mere make shift arrangement and a faked affair and in real substance the premises had been sublet to Joginder Singh. The Appellate Authority, however, did not agree with this submission and upheld the finding of the Rent Controller in his order. In the case, the Appellate Authority noticed that Joginder Singh had not been examined in the case and even the attesting witness of the partnership deed had not been produced, but curiously enough, these serious omissions were not considered to be material because as the Appellate Authority puts in the order, Joginder Singh had appeared as a witness for Surjan Singh in proceedings u/s 107, Cr.P.C., initiated by him against Bhag Singh landlord, some time back, and Exhibit A. 2 dated 16th September, 1933, a certified copy that statement, was produced on the record. This was taken into account and the statement made by Joginder Singh in those pro-ceedings was considered by the Appellate Authorting in coming to the conclusion that Joginder Singh had asserted that he was a partner of Surjan Singh in the existing business. Relying on this statement and on a copy of the partnership-deed even though unproved, the Appellate Authority affirmed the order of the Rent, Controller.

The learned counsel for the landlord has very strongly questioned the legality of the order of the Appellate Authority in considering the partnership deed as evidence in the case and ignoring the serious omission on the part of the. tenant to produce Joginder Singh or the attesting witnesses of Exhibit R. 1. I find force in the contention. The other criticism pressed by the counsel for the petitioner is also not wholly devoid of merit. Exhibit R. 1, the agreement dated 12th July, 1963 was produced in Court on 26th August, 1964 which was the last date of recording evidence. Indeed, on that date, this document was impounded and opportunity given to the tenant for making payment of the stamp duty and penalty, for which purpose the case was adjourned to 3rd September 1964, when again it was adjourned to 8th September, 1964 for arguments. Surjan Singh appearing as R.W. 1 produced this document in this examination when he stated as follows:

I and Joginder Singh worked in partnership in this building from 12th July, 1963. I have not sublet to him. There is a partnership-deed which I produce as Exhibit- R. 1 (Admitted in evidence on payment of Rs. 7/- as costs on account of the fact that this deed has been produced at a late stage.)

This is the entire statement in examination-in-chief relating to R. 1 and there is nothing else deposed which can be considered to amount to formal proof of the execution of this document. The, endorsement at the back of this stamp paper shows that it was purchased on 12th July, 1963 by Surjan Singh son of Sardara Singh for the purpose of executing an agreement in favour of the Government. Joginder Singh has signed it in Urdu and Surjan Singh in Gurmukhi. The two witnesses of this document are Ved Parkash Chopra and someone whose name reads like Dhori Singh, both of them having signed in English. The document has been typed out by someone whose name is not disclosed. Apparently neither Joginder Singh nor Surjan Singh seem to be coversant with English language and indeed it has not been shown on the record that Surjan Singh could either read or write in English language. In the written statement also, he has signed his name in Gurmukhi, though the written statement is typed out in English. From this, it seems to me to be quite clear that the execution of R. 1 has not been proved according to law on the present record. Before turning to the terms which are significant, it may be pointed out that according to the opening part of this deed, although Surjan Singh and Joginder Singh have been running together the partnership concern for some time; it was only on 12th July, 1963 that they consented and agreed to reduce the terms into writing. The entire business of the workshop is to remain joint partnership concern of Surjan Singh and Joginder Singh, latter of whom it is set up all the machinery needed to further develop the business at his cost. The Kharad already fixed by Surjan Singh is also to be deemed to be of the partnership concern. Five horse power electric connection standing in the name of Surjan Singh will also become the property of the partnership because Joginder Singh is stated to have installed a five horse power electric motor at his cost. Clause 5, to reproduce the exact words, provides "that although the premises where the business of the workshop is now being carried on has been taken on rent by part I, the right, title and interest in this tenancy will remain vested in the joint partnership concern and Part I will not be in a position to relinquish any of those rights, without Part II''s explicit consent in writing." Part I, I may point out, is Surjan Singh and Part II Joginder Singh. The accounts have to be maintained by Joginder Singh who is to be responsible for all dealings and further investment. Both the parties are to be considered working partners, their share and profits and loss being Surjan Singh 4 annas and Joginder Singh 12 annas in a rupee. Joginder Singh having made investments in the electric power, machinery, Kharad and other tools of the workshop was entitled to remove all those articles in case of dissolution of the partnership. It is abundantly clear that this document expressly amounts to a transfer by Surjan Singh of his right under the lease. The genuineness of this document also appears to me to be somewhat suspicious because the stamp paper purports to have been purchased for a different purpose on 12th July, 1963, the date of the alleged execution of this: partnership deed. Having not been produced along with the written statement or till the last date of hearing on which Surjan Singh himself appeared in the witness-box adds to the suspicion. What clinches the whole matter is the absence of any reference to this partnership in the written statement, and indeed to any partnership concern. All that is pleaded in defence is that the permises have not been sublet to anybody. If the partnership deed dated 12th July, 1963 was in existence in December 1963 when the written statement was filed, it would have been in the forefront of Surjan Singh''s defence. Non-production of Joginder Singh is no less fatal on the facts and circumstances of this case. It is, therefore, abundantly clear that no partnership has been established on the existing record and both the Rent Controller and the Appellate Authority Shri Murari Lal Puri, have gone completely wrong both in law and on facts in dismissing the landlord''s petition for eviction on the ground that there is a valid partnership in existence between Surjan Singh and Joginder Singh and that, therefore, Surjan Singh cannot be deemed to have sublet the tenancy. Apparently, Joginder Singh is in the picture and is in possession of the demised premises in his own right as Surjan Singh would have us believe as his partner.

Now the transfer of rights, under the lease to the partnership consisting of Joginder Singh and Surjan Singh is, in my opinion, clearly hit by section 13(2) of the East Punjab Urban Rent Restriction Act. On behalf of the petitioner, reliance has been placed on a Bench decision of the Nagpur High Court in Tansukhdas v. Shambhai AIR 1954 Nag. 160, where it has been observed that if in the first instance ''A'' alone was the tenant of the pemises and he allowed other persons to enter into partnership along with himself to carry on business in those premises, the partnership which ''A'' entered into along with the third parties would be a personality in law distinct from that of ''A'' himself and ''A'' would bring himself within the purview of the law prohibiting subletting without the permission of the landlord, and liable to be ejected on the ground of unauthorised subletting.

On behalf of the respondent, reference has been made to Darshan Singh v. Kulwani Rai (1958) 60 P.L. R. 650, in which Chopra, J. has observed that the original tenant forfeits his right only if he sublets the premises and himself ceases to retain legal possession because there can be no subletting unless the lessee parts with the legal possession. The mere fact that some other person is allowed to use the premises while the lessee retains the legal possession is not enough to create the sub-lease. Taking of another partner in the business by the lessee would thus not by itself constitute subletting. In deciding whether a grant amounts to a lease or is only a licence, according to the learned Judge, regard must be had to the substance of the agreement. If its effect is to give the holder exclusive right of occupation, then it is a lease, whereas if the agreement is merely for the use of the property in a certain way on certain terms, while remaining in the possession and control of the owner, it would be a licence. In this judgment, reference has been made to an earlier decision of Bishan Narain, J. in Ajit Parshad v. Gian Singh (1956) 58 P. L. R. 124, for the proposition that the mere fact of a tenant allowing his partner to use the rented premises in furtherance of the partnership business does not amount to subletting of the premises.

In my opinion, it is unnecessary to decide the question as to how far assignment of the right under the tenancy to a partnership would be covered by the expression "sublet" because, in my opinion, there is no genuine partnership between Joginder Singh and Surjan Singh proved on the present record. It is, however, quite clear from the evidence produced by Bhag Singh that Joginder Singh actually works on the premises and carries on his business in the building. Bhag Singh has sworn that Surjan Singh has actually left the building, having no control thereon. I have no reason to disbelieve this testimony. Surjan Singh appearing as R.W. 1 has actually admitted in his cross-examination that Joginder Singh keeps the books of account which have, of course, not been produced. Indeed, according to him, a Munim keeps the account books but the said Munim has also, for reasons best known to Surjan Singh, not been produced. Surjan Singh had not enquired as to how much profits had accrued to the partnership, and indeed had not settled the accounts till 26th August, 1964 when he made the statement in Court. In face of this evidence, I have not the least doubt that on the record subletting by Surjan Singh is amply established and defence produced by him is not worth the paper on which it is written.

For the foregoing reasons, this revision is allowed and setting aside the orders of the Appellate Authority as also of the Rent Controller, I grant the petitioner''s application for eviction of Surjan Singh from the premises in question. The petitioner is entitled to costs both here and in the Tribunals below. I grant to the tenant three months from today to vacate the premises, but there would be no bar to the initiation of the execution proceedings. Actual eviction, however, must not take place before the expiry of three months.