BALWANT SINGH NARANG Vs. SAROJ GUPTA

JUDGEMENT

(1.) The present revision petition is directed against the concurrent findings recorded by the Rent Controller, Ludhiana and the Appellate Authority on 12.10.2010 and 13.09.2012, respectively, whereby eviction has been ordered on the ground that the property had been sublet to Harinder Singh Narang, by his father, Balwant Singh Narang, petitioner No.1 herein, who was the tenant without the consent of the landlord. A finding was recorded that the tenant had stopped carrying any business and he had delivered possession of the demised premises to his son and therefore, had no knowledge of the business in the firm and was a total stranger. The partnership deed which had been set up in defence (Ex.R2) was a mere sham transaction in the absence of any income tax returns and accounts books and sales tax returns having been produced. On issue No.4, regarding the estoppel by the landlord, it was held that this issue had not been pressed and therefore, it was decided against the tenants.

(2.) When the matter was carried to the Appellate Authority, it went on to hold that subletting being a secret arrangement between the tenant and the sub-tenant and especially when it was between a close relation, as in the present case-between father and son, the matter could only be proved by way of circumstantial evidence. The onus was, thus, shifted upon the tenants that it was not a case of sub-tenancy. However, from the evidence brought on record, the partnership deed dated 01.04.1997 (Ex.R2) was held to be seeming to be a sham transaction. Elaborating this finding, it was noticed that copies of income tax and sales tax returns had not been filed nor the copies of account books and the terms and conditions enshrined in the partnership deed had also not been complied with. No books of account of partnership firms had been produced to show that both of them were jointly operating their account and in the absence of registration of the partnership deed, as per the evidence which has come on record, the father had become a total stranger to the business and therefore, there was an exclusion, as such, of the possession. The father did not even know where his son was residing and therefore, there was a severance of the joint family status. The cross-examination of the father, namely, Balwant Singh Narang was referred to for coming the said conclusion. Merely because the son was making the payment and the landlord was accepting the same as rent as payment on behalf of the father, who was the tenant would not estop the landlord from seeking eviction. The argument that there was no finding given on issue No.4, would also be of no help and accordingly, keeping in view the fact that the veil on the partnership deed had been lifted, it was held that possession had been parted with and the son, namely, Harinder Singh was in exclusive possession of the premises in dispute, without any permission. The objection that the landlady herself had not appeared and the son had appeared as power of attorney was also overruled, in view of the close relationship, as such, between the parties.

(3.) Mr. Vikas Behl, Ld. Senior Counsel for the petitioner, has vehemently submitted that the evidence recorded by the Courts below were not justified that the partnership deed was a sham transaction and submitted that the firm continued to do business. The petition had been instituted on 04.02.2002 and therefore, thereafter also, the partnership was doing business. Reliance has also been placed upon the fact that two applications for additional evidence had been moved before the Appellate Authority to produce the record of the authorities, to show that the firm, as such, was running and therefore, the order of the Appellate Authority, dismissing the application for additional evidence on the same date when it dismissed the appeal, was not justified. It was, accordingly, submitted that the son of the landlady had admitted that the counterfoils of the rent receipts had been signed by Harinder Singh Narang and therefore, there was a estoppel, as such, from the part of the landlady. She had chosen not to appear herself and therefore, an adverse inference was to be drawn against her. It is, accordingly, submitted that it was a misreading, as such. That the father was living separately only for the last 4 years and not at the time of the institution of the petition. No evidence had been recorded on all the issues and even the case of the landlady is that there was a licence and therefore, no eviction, as such, on the basis of subletting, was justified. It was, accordingly, submitted that due to the close relationship, as such, eviction should not have been ordered on the ground of subletting. Reliance was placed upon the judgment in Smt. Gian Devi Anand Vs. Jeevan Kumar, 1985(2) SCC 683 to contend that tenancy was inheritable and therefore, findings recorded by the Courts below were not justified and Parkash Chand Vs. Bhan Chand, 1995 (2) PLR 147 wherein the plea taken by the tenant was allowed and it was submitted that once the father was a partner in the business, it would not amount to subletting.