MADAN MOHAN Vs. J S GUPTA

JUDGEMENT

(1.) It is a plaintiff's second appeal arising out of a suit filed for ejectment of the respondents from shop Nos. 339-B and 339-C situate in Sadar Bazar Meerut, and for recovery of rent and mesne profits. The plaintiffs-appellants are the landlords. Respondents Nos. 1, 2 and 3 are his tenants. Respondent No. 1 died during the pendency of this appeal in this Court and his heirs have been brought on record. The case of the plain tiffs appellants was that respondents Nos. 1,2 and 3 have sub-let shop No. 339-B to a firm known as Gupta Automobiles and have entered into a partnership with respondents No. 4 and 5. The case of the plaintiffs-appellants was that in fact the property in dispute had been sublet to the firm and as such the defendants are liable to ejectment. The defence set up in the case was that the business carried on in the name of Gupta Automobiles is owned by res pondents No. 1, 2 and 3 with respondents No. 4 and 5 as partners and that no sub-tenancy was ever created in respect of the property in dispute. The trial Court came to the conclusion that the premises in dispute was not sub-let to any person. In view of this finding the suit for ejectment was dismissed by the trial Court on 20th May 1970 and an appeal was filed before the lower appellate Court. The lower appellate Court also recorded a finding that there was no sub-letting and agreed with the view of the trial Court. The appeal was accordingly dismissed on 24th November, 1971. Against the judgment dated 24th November 1971 the present second appeal has been filed in this Court. Learned Counsel for the appellants has urged that the sub-letting has been clearly established by respondents Nos. 1, 2 and 3 in favour of the firm Gupta Automobile and as such the view taken by the lower appellate Court to the contrary is clearly erroneous in law. I have heard learned counsel for the parties at length. It is not disputed that respondents No. 1, 2 and 3 are in possession of the property in dispute. It is further not disputed that exclusive possession has not been given to the firm Gupta Automobiles. Learned counsel for the appellants has placed reliance on clause 15 of the partnership deed, Ex-24, which reads as follows: "that the business of the said partnership shall be carried on in the premises occupied by party, of the 3rd part till arranged or otherwise and Rs. 67/- p. m. exclusive of Electricity and Telephone for use and occupa tion by the firm will be paid by the partnership. " Learned counsel has urged that since a sum of Rs. 67/- has to be paid by the firms for the use and occupation to the tenants it would amount to sub- letting on the part of the tenants to the firm. I have perused the terms of the partnership deed Ex-24. It is clear from the partnership deed that so far as respondents Ho- 4 and 5 are concern ed they are the main partners giving the capital to the firm. Respondents Nos. 1, 2 and 3 were to be working partners and they have got 50 per cent share. The possession of the shop in dispute has also not been exclusively handed over to the firm Gupta Automobiles. Respondents Nos. 1, 2 and 3, the tenants, continue to be in possession of the premises. The partnership appears to be a bona fide transaction in which respondents Nos. 1, 2 and 3 are working partners with 50 per cent share in profits. In Dharam Pratap v. Kamleshwari Devi (1968 A. W. R. 672), the Supreme Court had occasion to consider a similar covenant in a partnership agreement The Supreme Court opined as follows; "the covenants that the amount of rent payable to the appellants for the occupation of the premises was to be received by the first respon dent from the second respondent and paid over to the appellant does not necessarily indicate that any subletting was intended. " In the case before the Supreme Court the appellant was the landlord. The first respondent was the tenant and the second respondent was the firm. The covenant in the case before the Supreme Court was exactly in terms of clause (15) which I have quoted above. The principle laid down in Dharam Pratap's case (supra) fully applies to the present case. In the circumstances the mere fact that the rent is being paid for use and occupation by the firm to the tenant cannot amount to sub-letting by the tenants in favour of the firm. Learned counsel for the appellants has relied on two cases of this Court in support of his submission. The first case relied upon by the learned counsel is Ishtiaq Husain v. Krishna Devi (1978 A. L. J. 373 ). The case of Ishtiaq Husain (supra), does not support the appellants at all. In fact from a reading of the case it is clear that Sinha, J. has held that if by entering into an agreement a third party is made a partner in the tenancy, then alone it would amount to sub-letting. In the instant case as I have held above, no other partner has been made a partner in the tenancy. In my opinion in the present case the position is in fact to the contrary. The compensation for use and occupation by the firm has to be paid to respondents Nos. 1, 2 and 3 and the respondents Nos. 1, 2 and 3 then have to pay the rent to the landlords. In the circumstances there cannot be any intention of making respondents No. 4 and 5 partners in the tenancy. The second case relied upon is Ram Kumar v. Om Nandan (1979 A. L. J. 949 ). In the case of Ram Kumar (supra), Mithal, J. came to the conclusion that there was sub-letting because there was a clear finding that the sub-tenant had been put in exclusive possession of the property. The case of Ram Kumar (supra), does not assist the appellant as in the present case it has been found that exclusive possession had not been given over by the tenant to the firm. In view of the above I am of the opinion that there is no intention of sub-letting on the part of respondents Nos. 1, 2 and 3 to respondents Nos. 4 and 5 and the finding recorded by the lower appellate Court is in accordance with law. In the result the appeal fails and is dismissed but in the circumstances parties are directed to bear their own costs. .