New India Traders And Ors. vs Satish Swarup Gupta
1988 Latest Caselaw 95 Del

JUDGMENT

Sunanda Bhandare, J.

(1) The respondent-landlord filed a petition for eviction on 27th March 1981 in the court of Additional Rent Controller, Delhi against the appellants under Section 14(l)(b) and (k) of the Delhi Rent Control Act (hereinafter referred to as the Act) in respect of one garage in property owned by the respondent bearing no 7B, Netaji Subash Marg, Darya Ganj, New Delhi let out to M/s New India Traders in the year 1946-47.

(2) It was alleged in the petition that appellants 1 & 2 herein parted with possession, sub-let and assigned the premises to Shri Subhash Chander appellant no. 3 herein, in the year 1978-79 without any authority and permission of the respondent-landlord and used the premises for nonresidential purpose which is contrary to the conditions imposed on the landlord by Delhi Improvement Trust. Before filing the petition, a notice was sent by the respondent to appellants 1 & 2 on 7th January 1979 terminating the tenancy. The appellants contested the petition and filed the written statement in which it was denied that the premises were misused. It was denied that the premises were let out for residential purposes as alleged but were let out to the appellants for commercial purpose and were being used as such from the inception of the tenancy. It was further denied that appellants 1 & 2 had sub-let, assigned or parted with possession of the suit property to appellant no. 3 as alleged but appellant no. 3 was in possession as a partner in the business. The Additional Rent Controller on the basis of the evidence on record came to the conclusion that the respondent bad conclusively proved that appellants 1 & 2 had parted with possession and sub-let the same to appellant no 3. It was further held that the plea of partnership taken by the appellants does not bold good because the appellants had failed to produce documents in support of their contention that there was a partnership with appellant no. 3. The Additional Rent Controller held that since the appellants had admitted that appellant no. 3 was in physical possession of the promises, the onus of proving the partnership was on the appellants/tenants. The appellants having failed to place on record the original partnership deed which was allegedly executed and registered as also the account books, had not discharged the burden and, therefore, allowed the eviction petition. The Additional Rent Controller however did not accept the second ground of eviction under Section 14(I)(k) of the Act and held that there was no misuse of the premises as alleged.

(3) Against this order of the Additional Rent Controller the appellants/tenants tiled an appeal before the Rent Control Tribunal, Delhi being Rca 771/85. The Rent Control Tribunal also concurred with the finding of the Additional Rent Controller and dismissed the appeal by order dated 8th July 1985. The finding of the Additional Rent Controller on the ground of misuse under clause (k) of Section 14(1) of the Act was not challenged by the respondent-landlord before the Rent Control Tribunal. Thereafter, a review petition was filed by the appellants Along with a prayer for adducing additional evidence. The Rent Control Tribunal however dismissed the review petition as well as the application for adducing additional evidence. The appellants have challenged the order of the Rent Control Tribunal dated 8th July 1985 by way of this second appeal.

(4) It was contended by the learned counsel for the appellants that though it was admitted that appellant no. 3 was in physical possession of the premises in question, the landlord had to prove legal parting of possession the premises by appellants 1 & 2. Learned counsel relied on Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Others, , Mis Madras Bangalore Transport Company (West) v. Inder Singh & Others, , Vishwa Nath & Another v. Chaman Lal Khanna & Another, Mohan Khanna & Others v. Jai Prakash & Another, 117, 1978 (2) Rcj 99 and Chander Kishore Sharma & Another v. Kampa Wall, in support of his contention that unless it is proved that the original tenant has parted with possession to the alleged sub-tenant, order of eviction cannot be passed on the ground of sub-letting. Learned counsel submitted that though the appellants had not produced the partnership deed and the account books, the income-tax assessment orders for the years 1982-83, 1983-84 and 1984-85 were produced and there was enough evidence to prove that there was a partnership between appellants 1 & 2 and appellant no. 3. Learned counsel submitted that though in the present case there was a partnership deed executed between the parties and the same was also registered, it was not necessary to produce the partnership deed because even if an oral partnership was claimed, once the income-tax assessment orders were filed, no further evidence was required. Learned counsel further submitted that the High Court can interfere with concurrent findings of fact by the two courts in a second appeal in a landlord tenant matter and dismiss the eviction petition. Learned counsel relied on Dipak Banerjee v. Smt. Lilavati Chakraborty in support of this contention, the appellants have also filed a separate application for permitting the appellants to place additional documents on record and for additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. By way of this application the appellants sought to place on record certified copy of the partnership deed dated 4th May 1981 and further documents in support of the contention that the partnership was still in existence.

(5) On the other band, it was contended by the learned counsel for the respondent that once the presence of the alleged sub-tenant was admitted, it was for the tenant to prove in what capacity the alleged subtenant was in possession. Thus, once the tenant failed to prove partnership it bad to be presumed that he had parted with possession to the sub-tenant. Learned counsel submitted that the appellants not only failed to place on record the partnership deed but did not even give the date, month or the year of the partnership. The appellants did not mention in their written statement whether there was an oral partnership or whether it was reduced in writing and since there was nothing to show that there was a partnership in existence apart from the income-tax assessment orders which were also for subsequent years after the suit was filed, the whole case of the appellants regarding partnership with appellant no. 3 was a cooked up story. Learned counsel submitted that the first notice terminating the tenancy of appellants 1&2was served by the respondent-landlord on 7th January 1979. The suit for eviction was filed on 27th March 1981 and the alleged partnership deed was executed thereafter on 4th May 1981. Learned counsel submitted that the alleged partnership was sham and it was executed only to defeat the plea of the landlord and avoid eviction.

(6) The main question in issue in this appeal is whether there was a genuine partnership at all between the tenant (appellant no. 2) and the alleged sub-tenant (appellant no. 3). If there was a genuine partnership between appellants 2 and 3, the possession of appellant no. 3 i.e. the alleged sub-tenant would not amount to sub-letting because it is well-settled that if there is any thing in the nature of a right to concurrent user, there is no parting with possession. The mere user by other person is no parting with possession so long as the tenant retains the legal possession himself. If the allegation of sub-letting has to succeed it has to be proved that the tenant has divested himself of not only physical possession but also of the right to possession.

(7) In the present case, possession of appellant no. 3 is admitted by the tenant (appellant no. 2), but as a partner. The onus to prove that the tenant had not parted with legal possession of the premises lay entirely on the tenant because he had admitted the possession of the alleged sub-tenant. Both the courts below have ordered eviction on the ground of sub-letting because the tenant, failed to prove the partnership. The appellants have all through-out maintained that the partnership deed was executed and registered in the year 1981. Since the main case of the respondent landlord was that the partnership was sham and it was constituted only to avoid eviction, the best evidence that the appellant could have produced, would have been the document or partnership deed itself. It appears that though the appellants had produced the income-tax assessment orders for the years 1982-83, 1983-84 and 1984-85 before the Additional Rent Controller, the partnership deed, account books and other documents were not produced. These documents would have indicated how the profits were to be shared by the partners is also the nature and genuineness of partnership. Though, the income-tax assessment orders show appellants 2 and 3 as partners, these orders do not indicate the nature of the partnership between them. No explanation is however forthcoming as to why the partnership deed was not produced before the Additional Rent Controller. No doubt, a partnership can be formed by oral agreement as well but one it was admitted that the partnership document was reduced in writing it had to be placed on record. If the party on whom the onus lies fails to produce the written document in his possession, adverse inference can be drawn. I find that there is concurrent finding arrived at by both the courts below on the basis of the evidence on record that though appellant no. 3 was in possession since 1978-79, at the time of filing of the eviction petition there was no partnership in existence and in order to avoid passing of the eviction order, a sham partnership was constituted. It appears that the admitted case of the appellants is that the partnership deed was executed and registered on 4th May 1981 i.e. after the suit turn eviction was filed by the respondent-landlord. There is nothing on record to show in what capacity appellant no. 3 was in possession before that date. The appellants have not pleaded oral partnership before that date nor have they filed any documents to show that they were carrying on the business in partnership from the premises even prior to the execution of the partnership deed on 4th May 1981. Account books, Bank statements, various licenses obtained by the alleged partnership firm before that date would have proved that the partnership was in existence even before 1981 and that the same is genuine. Now, even the income-tax assessment orders are for 1982-83 onwards and not prior to 1981.

(8) Ordinarily the High Court in a second appeal does not interfere with the concurrent finding of facts. However, as held by the Supreme Court in the case of Deepak Banerjee (supra) if the essential ingredients necessary for finding of a fact have not in fact been found by the courts below, then the court is bound to examine the question where injustice or wrong is done. The burden of showing that the concurrent decision of two or more courts or tribunals is manifestly unjust lies on the appellants. The fact that the partnership was constituted after the filing of the eviction petition, prima-facie gives an impression that the partnership was formed because of the eviction petition. Now to dispel that impression the onus lay entirely on the tenant. From the evidence on record, I find that the finding of both the courts below does not suffer from any illegality because the appellants have miserably failed to discharge that onus. Excepting the income-tax assessment orders, there is no document on record which can prove the partnership. Once the appellants fail to prove partnership, the possession of appellant no. 3 cannot be explained. It thus amounts to clear parting of possession by appellants no. 1 & 2 to appellant no. 3. If the genuineness of partnership had been proved, the appellants 1 & 2 could have still maintained that they had not parted with legal possession. But having failed to prove the partnership, the ground for eviction under Section 14(l)(b) was clearly made out.

(9) A separate application (C.M. 2456/85) has been filed by the appellants for placing on record certain documents including the partnership deed. It is averred in this application that since the two courts below had rejected the plea of the appellants because of non-production of these documents, the appellants be now permitted to place these documents on record and be permitted to lead further evidence in the matter. A similar prayer was made before the Rent Control Tribunal after the Tribunal had rejected the appeal. By order dated 12th August 1985 this prayer was rejected. The appellants do not give in the application any reason why these documents could not be filed during trial or even before the first appeal was disposed of by the first appellate court. It is not the case of the appellant that these documents were not in their possession or there was any other difficulty in filing them. The only ground for non-production is wrong legal advice. On perusal of the documents, particularly of the partnership deed. I do not think that it will in any manner strengthen the case of the appellants. Though the partnership deed dated 4th May 1981 is executed on a stamp paper it does not indicate that the partnership existed before that date. It is a partnership at will and all rights and interest in the premises in question stand transferred to appellant no. 3 by way of the said deed. All bank accounts of the partnership are to be operated solely by appellant no. 3. On dissolution of the firm, apart from the goodwill, quota rights and all other assets even the tenancy rights would remain with appellant no. 3. In fact, appellant no. 2 has given an undertaking that he will sign all documents which appellant no. 3 may desire, including the deed for dissolution. All these clauses in the agreement confirms that the partnership is sham and was executed only to avoid eviction. It appears that during the pendency this the appeal appellants themselves realised that some of the clauses in the partnership deed may strengthen the doubts regarding the genuineness of the partnership. Therefore as late as on 26th Sept. 1986 i.e. after the Rent Control Tribunal had dismissed the application for bringing additional evidence on record and after the present appeal was admitted by this Court, a rectification deed was executed between the appellants to fill up further lacuna in the case. It appears to me that this application has been filed by the appellants now to fill up the lacuna in their case and also to delay the final disposal of the case and remain the possession. In my opinion, a vested right has accrued to the respondent-landlord and grave injustice will be caused if the appellants are allowed to delay the disposal of the eviction petition by permitting them to adduce further evidence.

(10) I, therefore, dismiss the appeal and the application C.M. 2456 of 1985 with costs.