CHANDRIKABEN ISHWARLAL SHAH Vs. DOSHI MITHALAL MAGANLAL

JUDGEMENT

(1.) THIS revision application is preferred against the judgment and order passed by the learned Asst. Judge, Sabarkantha at Himmatnagar in Civil Appeal No.19/1990 dated 15.09.2001 whereby, the said appeal was allowed and the judgment and decree passed by the learned Civil Judge (S.D.), Himmatnagar in Regular Civil Suit No.119/1984 dated 28.09.1990 was quashed and set aside.

(2.) THE facts in brief are that earlier, one Bhavsar Kodarlal Ravchand, was the owner of the property, which is a two-storied building bearing Old Nagar Panchayat Nos.1/80 and 1/81 (New Nos. 1/67 and 1/68). THE said property was given on rent to respondent no.1 herein on 24.09.1957. On the ground that respondent no.1 was in arrears of rent, said Bhavsar Kodarlal Ravchand preferred R.C.S. No.119/1984 against the respondents for getting vacant possession of the property. During the pendency of the suit, the petitioners herein purchased the suit property from the original owner. Later, the original owner died and therefore, the petitioners were joined as plaintiffs in the said suit. THE said suit came to be decreed in favour of the petitioners herein and the respondents were directed to hand-over peaceful and vacant possession of the suit property bearing Old N.P. No.1/80 (New No.1/67) to the plaintiffs and also to pay mesne profit at the rate of Rs.70/- per month from 01.02.1984 till the possession is handed over to the plaintiffs.

(3.) MR. Majmudar learned counsel for the petitioners has relied upon a decision of this Court in the case of Bhagwati Spg. and Wvg. Works V. Ahmedabad New Cotton Mills Co. Ltd., 1979 G.L.R. 932, wherein it has been held while deciding the question of sub-tenancy under the Bombay Rents, Hotel and Lodging House Rates Control Act that the facts about valuable consideration has to be proved and that such facts could be proved expressly or can be inferred from other facts. 5.1 Learned counsel has also relied upon another decision of this Court in the case of Shah Chatrabhuj Narshi and Anr. V. Nensibhai Shavanjibhai Gohil and Anr., 1980 G.L.R. 377, wherein it has been held that the real test is the intention of the parties and if the document creates an interest in the property, it is a lease and the factum of exclusive possession of a property by a person, prima facie, indicates that he is a tenant. The test of exclusive possession, therefore, cannot be conclusive. Ultimately, it is the intention of the parties whether they intend to create an interest in the property and that would be determinative along with the other circumstances when a question arises whether a lease or sub-lease is created or not. 5.2 Learned counsel for the petitioners has relied upon another decision of this Court in the case of Harshachandra Narsibhai Patel and Ors. V. Ibrahim Haji Khubanbhai, 1984 G.L.H. 965, wherein it has been held that Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is much wider and that it is not confined merely to the acts of unlawful sub-letting. The words ?transfer in any manner? are much wider and they would include transfer made in favour of a relative or a known person if he has left premises and transferee is put in exclusive possession. It has also been held therein that transfer for valuable consideration is proved would amount to sub-letting and that it also amount to ?transfer in any other manner? as contemplated in Section 13(1)(e) of the Act. 5.3 Learned counsel has relied upon a decision of the Apex Court in the case of Helper Girdharbhai V. Saiyed Mohmad Mirasaheb Kadri and Ors., A.I.R. 1987 S.C. 1782, wherein it has been held that if there was a partnership firm of which tenant of the premises in which the business of the firm was carried on was a partner, the fact of carrying on of business of the partnership in the premises would not amount to subletting leading to forfeiture of the tenancy. 5.4 Learned counsel for the petitioners has lastly relied upon a decision of this Court in the case of Phatandas Chellaram Bharaney V. Kashiben I. Patelia and Anr., 2011(1) G.L.H. 398, wherein it has been held that merely because the tenant continues in the same shop as hitherto but takes in other partner, the legal possession of the shop does not change hands and that taking a partner in the business does not amount to sub-letting. However, the intention of the parties and purpose behind creation of partnership firm is an important factor to be taken into consideration.