ISHTIAQ HUSSAIN Vs. KRISHN

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of the judgment and decree dated February 16, 1966, passed by the First Additional Civil Judge, Moradabad, in Civil Appeal No. 173 of 1965. The facts giving rise to this appeal, briefly stated, were as follows: One Gulab Singh was originally the landlord and Mushtaq Husain was the tenant of the premises in suit. On the death of Gulab Singh the premises in suit, by a partition among his heirs, became the property of Smt. Krishna Devi, plaintiff-respondent. Mushtaq Husain the original tenant, died and thereafter his two sons, Ishtiaq Husain and Ishaq Husain. appellant nos. 1 and 2, became the tenants ihereof. In July 1961, Ishtiaq Husain and Ishaq Husain entered into a partnership with Ravendra Kumar, appellant no. 3 for doing timber business in the shop. In 1964 Smt. Krishna Devi filed a suit against the three appellants for their eviction on the ground of sub-letting and of material alteration having been made in the premises in suit. The appellants contested the suit. They denied that any material alteration has been done in the premises in suit. The fact that appellant nos. 1 and 2 had entered into a partnership with appellant no. 3 was not denied, but it was pleaded on their behalf that the shop had not been sub-let to the appellant no. 3. It was further pleaded by the appellant nos. 1 and 2 that the plaintiff-respondent was not entitled to maintain the suit, that the suit was barred by order 2, rule 2, C.P.C. and, in any case, the partnership agreement came into existence with consent of the plaintiff-respondent. The trial court rejected the contentions raised on behalf of the appellants about the maintainability of the suit by the plaintiff-respondent alone. The plea that the suit was barred by Order 2, rule 2, C.P.C was also rejected. The trial court also did not accept that the appellants had made any material alteration in the premises in suit. The trial court, however, accepted that the agreement between the appellant nos. 1 and 2, on the one side and appellant no. 3, on the other, executed in July, 1961, for doing partnership business in the premises in suit, amounted to sub-letting and on that ground decreed the suit. The defendants went up in appeal before the learned District Judge, Moradabad. The learned Additional Civil Judge, who heard the appeal, however, concurred with the findings recorded by the trial court and dismissed the appeal. The defendants have, accordingly, came up in second appeal before this court. Learned counsel for the appellants contended before me that the courts below have committed an illegality in coming to the conclusion, on the basis of the agreement dated July 15, 1961, that the premises in suit had been sub-let by appellant nos. 1 and 2 to appellant no. 3. On a perusal of the judgment of the lower appellate court I find that it has relied on a Division Bench Decision of this court in the case of Radha Krishna v. Data Ram (1), to conclude that the agreement excluded between appellant nos. 1 and 2 on the one side and appellant no. 3 on the other in the present case amounted to an agreement of sub-letting. In the case of Radha Krishna v. Data Ram (supra) an agreement had taken place between defendant no. 1, who was the original tenant of the shop, and defendant no. 2 whereby defendant no. 1 took defendant no. 2 as a partner by entering into a partnership agreement. One of the terms of the partnership agreement was as follows:- "Yeh ki dukan haza tarikh imroza se baruya shirakatnama haza donon fariqain ki mushtarka kirayedari as mutsawwar hogi." The Division Bench having taken the aforesaid condition of the agreement into account came to the conclusion that it amounted to lease or sub-lease. The Division Bench observed:- "In the present case we have quoted one of the terms of the partnership under which it was agreed between the two defendants that from the execution of the partnership deed both the defendants shall be deemed to be joint tenants of the shop in dispute. In view of this terms of the agreement of partnership "it is obvious that what was done by defendant no. I in admitting defendant no. 2 to partnership was making him a partner in the tenancy. It is not the case in which another person has been permitted to occupy without any interest." The Court further on observed: "........it would appear that the real intention of the parties in admitting defendant no. 2 to the possession of the shop was that defendant no. 2 should share in the tenancy. The document created "an interest in favour of defendant no. 2 and the terms of the document in substance show that the admission of defendant no. 2 to the shop was not a mere licence but amounted to a lease or sub-lease in the present case." In the case before me also one of the clauses in the partnership agreement stated that after the execution of the partnership agreement, the rent would be paid by the firm and the firm shall be the tenant of the premises in suit THIS clause in the agreement executed between appellant nos. 1 and 2 on the one side and appellant no. 3 on the other is akin to the condition of the partnership agreement referred to in the case of Radha Kishan v. Data Ram (supra) The rule laid down by this court in that case was, therefore, clearly applicable to the present case. Learned counsel for the appellants, however, invited my attention to another Division Bench decision of this Court in the case of Seth Lakshmi Chand v. Nathmal Dulichand (1965 A.L.J. 1001). In that case Nathmal and Duli Chand were the original tenants. They entered into a partnership with Sri Siaram for doing business in the premises in suit. The question that arose in that case was whether it could be held that Nathmal and Duli Chand had sub let the shop. On the facts of that case, the Division Bench held that it could not be held that sub-letting had taken place. Superficially looking, the rule laid down in the case of Lakshmi Chand v. Nathmal Duli Chand (supra) supports the appellants. But on a closer examination, I find that it is distinguishable on facts. It may be mentioned at the cost of repetition that in the case of Radha Kishan v. Data Ram (supra) are of the terms of die partnership agreement was that, after the execution of the partnership, the shop will be in the tenancy of both the partners. In other words, according to the agreement executed between the defendants in the case of Radha Kishan v. Data Ram (supra), the defendant had made another person a partner in the tenancy rights. As opposed to this, it does not appear from the decision of the case in Lakshmi Chand v. Dult Chand (supra) that in the agreement executed between Nathmal and Duli Chand, on the one side, and Sri Sairam on the other, there was any term making Sri Sairam a partner in the tenancy. ' I have already pointed out earlier that in the case before us also there was a'term of agreement by which the firm, which included a third partner, namely, Ramendra Kumar, appellant no. 3, was made a partner in the tenancy. It may not be out of place to add that the Division Bench in the case of Lakshmi Chand v Nathmal Duli Chand (supra) considered the case of Radha Kishan v Data Ram (supra) but did not express any dissent with it. I, accordingly, hold that the decision in the case of Seth Lakshmi Chand v Nathmal Dulichand (supra) is distinguishable on facts and cannot be made use' of in the present case. Learned counsel then referred us to a decision of the Supreme Court in the case of Murli Dhar v. Chuni Lal and others (1970 All India Rent Control Journal 922). In that case the shop was originally let out to a firm which consisted of Chuni Lal, Cherulal and Meghraj as partners. Sometimes later the shop was used by a new firm of the name of Meghraj Bansidhar of which the partners were Meghraj of the original firm and two other persons. Two contentions were raised before the Supreme Court viz. (1) that the possession of the premises by the new firm proved subletting and (ii) Meghraj having entered the partnership with a stranger, there was a sub-letting to the new partnership. The first contention was rejected with the following observation:- "The contention appears to have been that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm was occupation by the legal entity other than the original "tenant and such occupation proved sub-letting. THIS contention is entirely without substance. A firm unless expressly provided for the purpose of any statute which is not the case here, is not a legal entiiy. The firm name is only a compendous way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants." The second contention was rejected with the following observation:- "It seems to us that the landlord cannot succeed. He has to prove it as a fact that there was a sub-letting by his tenant to another person. He does not prove this merely by showing that his tenant was one firm and the premises are in the occupation of another firm, as he sought to do in the present case. Mere possession by somebody other than the tenant would not necessarily prove that the premises had been sub-let by the tenant to the person in possession. It is admitted that there is no evidence in this case to prove the fact of sub-letting." With the above observations, the Supreme Court rejected the contention raised on behalf of the landlord that the shop had been sub-let. On a careful examination of the aforesaid case, however, I find that it is also distinguishable on facts. It does not appear from the report of the case that there was any evidence to show that Meghraj had made the other partners of the firm partners in the tenancy. The contention of the landlord was that on inference of sub-letting should be drawn merely on the basis of the shop being in the joint possession of the original tenant and two other, persons. In the case before me the plaintiff-respondent did not rely merely on the basis of the joint possession of the appellants. He has further relied on that clause contained in the partnership agreement whereby appellant nos. 1 and 2 viz. the original tenants, made the partnership firm which included Ramendra Kumar appellant no. 3, partner in the tenancy. The decision of the Supreme Court in the case of Murli Dhar v. Chunni Lal (supra) would not, therefore, apply to the present case. I, accordingly, conclude that the trial court rightly held that the shop had been sub-let by the appellant nos. 1 and 2 to appellant no. 3. No other question of law having been raised before me on behalf of the appellants. I find that this appeal has no force and must fail. The appeal fails and is hereby dismissed with costs.