V. A. CHACKO Vs. KOYAPPA KOLOTHU KAMMUTTY HAJI

JUDGEMENT

(1.) THE Defendant is the Appellant. The suit as amended was for recovery of possession of a shop room on the strength of the Respondent's title. The Respondent is a tenant of the shop room under one Appu, on a monthly rent of Rs. 150 which was subsequently enhanced to Rs. 225. The building is situate in Kozhikode town and the provisions of the Kerala Buildings (Lease and Rent Control) Act are applicable to the area wherein the building is situate. The Respondent was conducting a hotel in the building. He stopped the said business. It is the Respondent's case that then he entered into a partnership with the Appellant for the purpose of doing a business in dealing in old cars and as brokers. Ext A -1 dated 23rd January 1979 is the deed of partnership entered into between the Respondent and the Appellant. After this business was started landlord Appu filed R.C.P. 22 of 1981 before the Rent Control Court under Section 11 of the Kerala Buildings (Lease and Rent Control) Act claiming eviction against the Respondent and the Appellant under Section 11(4)(i) of the Act on the allegation that the Respondent, the tenant had sublet the building to the Appellant herein and that the said subletting was unauthorised and that therefore landlord Appu is entitled to an order for eviction under the Rent Control Act. The Respondent and the Appellant herein together resisted that application by pleading that there was no subletting by the Respondent to the Appellant as alleged by landlord Appu and that as a matter of fact the Respondent and the Appellant herein were partners in a joint business formed under Ext. A -1 partnership deed and registered with the Registrar of Firms under Section 69 of the Indian Partnership Act, that forming a partnership by a tenant with Anr. did not constitute subletting within the meaning of Section 11(4)(i) of the Rent Control Act and that therefore the application for eviction was liable to be dismissed. The question whether the Appellant herein was a tenant under the Respondent and thereby a subtenant in the building was considered by the Rent Control Court. The Rent Controller by order dated 21st June 1982 marked in this case as Ext. A -5 found that the Respondent and the Appellant were partners and that there was no sublease so as to attract Section 11(4)(i) of the Act. Though this finding of the Rent Controller was reversed by the Rent Control Appellate Authority which ordered eviction on the ground of subletting on a revision by the Respondent and the Appellant herein together as R.C.R.P. 20 of 1985 the Rent Control Revisional Authority, the District Judge held that the Respondent and the Appellant were partners of a business in terms of Ext. A -1 deed of partition and that the Appellant was not a tenant under the Respondent and that there was no subletting by the Respondent to the Appellant as alleged by landlord Appu and that therefore landlord Appu was not entitled to an order for eviction under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. The order of the Revisional Authority in R.C.R.P. 20 of 1985 has been produced as Ext. A -6 in the present proceeding. The claim for eviction by landlord Appu on the ground of subletting thus was finally rejected by the Rent Control Authorities on finding that the Respondent and the Appellant herein are partners in a business.

(2.) IT is the case of the Respondent that after some time the Appellant failed to honour his obligations under the deed of partnership Ext. A -1 and the partnership being one at will he issued a notice Ext. A -8 dated 10th December 1986 dissolving the partnership. The further case of the Respondent is that in terms of the deed of Partnership once the partnership was dissolved the Appellant had no right to enter the premises as the premises all along belonged to him and had been made available by him only for the purpose of carrying on the partnership business. The Respondent originally filed the suit as one for injunction based on the terms of the partnership deed Ext. A -1 and the absence of any right in the Appellant to enter the premises. Subsequently the suit was amended by him into one for recovery of possession on an averment that the Appellant trespassed into the building pending the suit. The ultimate relief claimed by the Respondent was that he was entitled to recover possession of the building on the strength of his title. The Appellant resisted the suit. He sought to go back upon the common defence adopted by him and the Respondent in R.C.P. 22/1981 filed by landlord Appu and raised the contention that he is really a tenant under the Respondent protected by the Kerala Buildings (Lease and Rent Control) Act. In effect what he contended was that he was a subtenant under the Respondent and thereby supporting the stand adopted by landlord Appu in the rent control proceedings. The Appellant's further case was that the partnership deed Ext. A -1 though entered into by the parties was a sham transaction and it had been entered into only with a view to defeat the claim for eviction made by landlord Appu on the ground of subletting and that therefore the Respondent has no rights under Ext. A -1 partnership deed either to dissolve the partnership or to prevent him from entering the premises. After the amendment of the plaint seeking recovery of possession on the strength of title the Appellant reiterated his contention that he is a tenant under the Respondent entitled to the protection of the Kerala Buildings (Lease and Rent Control) Act. He therefore pleaded that he cannot be evicted.

(3.) AFTER the remand the pleadings were amended to incorporate the plea of estoppel. The Court below thereafter has held that the Appellant herein had a choice before the rent control Court to rely on Ext. A -1 as a deed of partition and as not amounting to a subletting or to plead outside it. The Appellant having chosen to rely on Ext. A -1 and to gain an advantage by averting his eviction from the building leading to the dismissal of R.C.P. 22 of 1981, he is estopped from now putting forward a contention that he is a subtenant under the Respondent and that the partnership Ext. A -1 is sham. In that view the lower appellate Court has reversed the decree of the trial Court and has decreed the suit for recovery of possession. This second appeal challenges the correctness of that decree passed by the lower appellate Court.