ORDER
Shivashankar Bhat, J.
1. This Revision Petition is by the tenant of the non-residential premises. The Respondent-land lord filed an eviction petition before the trial Court under Clauses (f) and (h) of Section 21 (1)of the Karnataka Rent Control Act, 1961 (shortly called 'the Act') seeking eviction of the tenant (petitioner before this Court) on the ground that the schedule premises has been unlawfully sublet by the tenant and further the landlord required the premises for the business of her husband.
2. In the eviction petition it was stated that the schedule premises is a part of a bigger building known as 'Ananda Bhavan Building'. It is situated in a commercial locality. The locality is quite convenient for the wholesale business in cloth and in fact, there is no other locality in Bangalore wherein wholesale business in cloth can survive. The landlady's husband Mohanlal at present has been carrying on wholesale business in cloth along with his brother Anandamal in the 1st floor of the very building. Difference of opinion has arisen between the two partners and therefore landlady's husband has decided to come out of the firm to start his own business. The requirement is therefore both bona fide and reasonable. It is further stated that the tenant had sublet the premises in favour of one M/s. Praveen Fabric without the authority and consent of the petitioner. The tenant is not at all carrying on the business in the schedule premises, according to the landlady. In view of the difference of opinion between Mohanlal and Anandamal, Mohanlal is suffering great hardship and he cannot carry on the business along with his brother and that he intended to carry on the cloth business in wholesale.
3. In the objection statement filed by the tenant he stated that he has been carrying on retail business in cloth in the schedule premises and the said shop faces Chickpet road which is a locality wherein only retail business is being done. The schedule premises is not suitable for wholesale business in cloth. There is a general denial of other averments made in the eviction petition and it is also stated that landlady's family members were already carrying on large scale business in various trade names and are having lucrative business with several properties and therefore financially there was no necessity for her to start further business. In para-6 of the eviction petition the landlady has specifically mentioned about the subletting of the premises by the tenant in favour of M/s.Praveen Fabrics, in para-6 of the objection statement the tenant has stated thus:
' The averments in para-6 are hereby denied and put to strict proof of the same. The fact the investment is made in petitioner's name for obvious adjustments for tax and other purposes. There is no subletting of the petition premises. It is false to allege that there is any subletting.'
I may mention here itself that there is no specific denial of the assertion made by the landlord that M/s.Praveen Fabric has beer carrying on the business and that the tenant has sublet the premises in favour of the said M/s.Praveen Fabrics. The first two sentences in para-6 of the statement of objection quoted above convey nothing and it is suggestive of the fact that the landlady has been investing for tax purposes. The other two sentences specifically state that there is no subletting. However, there is no explanation as to how and why M/s.Praveen Fabrics is found in the schedule premises. The case was later developed by the tenant that he has entered into a partnership with others in the said name, a case which is not found in the statement of objections.
4. There is also an averment in the statement of objections that the landlady intended to evict the tenant so that she can let it out for higher rent and pagadi. It is further stated that tenant is aged and he will not be able to establish himself elsewhere.
5. The trial Court accepted the case of the landlady. The locality was found to be suitable for the wholesale business in cloth because admittedly the adjacent road is having several wholesale cloth shops and this building is in the junction of the two roads. Further, in the first floor of the very building admittedly there is a wholesale cloth shop carried on by the landlady's husband with his brother. The trial Court also found that the landlady's husband is experienced in cloth business and that initially he started the business along with his father; his other brothers also joined him subsequently; his father died and other brothers also left him. Later he formed partnership with his younger brother Anandamal and has been carrying on the whole sale business in the first floor. The first floor was purchased by Anandamal and thereafter the landlady's husband decided to come out of the firm. The trial Court found that there is nothing unnatural with the brothers deciding to separate themselves and proceed to carry on the business independently of each other. Further, the landlady purchased the schedule premises with the sole intention of carrying on the business by herself along with her husband. The trial Court also found that the business turnover of the landlady's husband and his brother came down from year to year obviously because of the differences amongst the two brothers and the non-co-operation attitude of the brother Anandamal towards Mohanlal. Alternatively, the trial Court opined that it was always open to two brothers to separate themselves and therefore the requirement of the landlady cannot be held to be lacking in bona fides. The landlady had the requisite financial capacity to start fresh business. The trial Court has accepted the oral evidence led on behalf of the landlady, especially P.W.3 Mohanlal about the suitability of the locality of the premises for the landlady's wholesale business. The schedule premises measures 14' x 20' though the internal dimension is stated be 12' X 18' which will be sufficient to carry on the wholesale business in cloth. For this purpose the trial Court has referred to the depositions of R.Ws. 2 and 3 also. There was a suggestion that two shops were available in the ground floor of the building where the landlady has been residing. This suggestion was not accepted by the trial Court because P.W.3 asserted that they were only godowns and the said locality was not suitable for the wholesale cloth business wherein he has been residing.
6. The trial Court also found that the tenant was not an active partner of the firm M/s.Praveen Fabrics and the partnership deed was only a device to sublease the schedule premises. The other alleged three partners of the tenant were quite strangers to the tenant and the contribution of the tenant to the partnership is only Rs. 1,001/- out of Rs. 16,001/-, the other Rs. 15,000/- being contributed by other three partners equally, according to the partnership deed Ex.P.3. The trial Court held that in reality the business in the ground floor is carried on in the name of M/s.Praveen Fabrics which belongs to R.W.2 Naresh Kumar and the other two partners of said R.W.2.
7. The first question that arises for consideration, is whether the landlady has made out a case under Clause (h) of Section 21 (1) of the Act. The finding of the trial Court was seriously challenged by Mr.S.G.Sundaraswamy, Sr.Counsel for the tenant, who contended that the landlady has not proved the alleged misunderstanding between Mohanlal and Anandamal; it is only an assertion and in fact deposition of P.W.3 (Mohanlal) shows that the relationship of Mohanlal and Anandamal was cordial. The said Anandamal was also not examined. In these circumstances, the very basis put forth in the pleading was not established. Mr.P.D.Surana, learned Counsel for the landlord urged that this is a case where the capacity of the landlady to start her own business cannot be doubted and in fact there is a direct admission about her financial capacity in the objection statement. Similarly the experience of her husband P.W.3 in the wholesale cloth business also is not in doubt. The background of the family shows that one after the other brothers left Mohanlal. Now that Anandamal has purchased the first floor obviously he wants to be free from Mohanlal. Therefore he has not been cooperating with Mohanlal to carry on the business resulting in the fall of business as is disclosed by the various turnovers. The learned Counsel, further pointed out that having personal cordiality between the two is quite different from having misunderstanding in the matter of carrying on the business. The two partners who are brothers may not see eye to eye about the business affairs such as selling the goods on credit, the person to whom the credit can be given, the employees to be appointed, mode of expansion of the business, etc, these may result in misunderstanding as to the business; still the personal relationship as brothers between the two may be cordial and therefore the statement of P.W.3 if any in no way militates against accepting the case pleaded by the landlord. The landlady purchased the ground floor (schedule premises) at the same time when Anandamal purchased the first floor. This was obviously because both of them wanted to be separate. They have been residing separately also. On this question of claim under Clause (h) the relevant oral evidence is of P.W.3 and 4 on behalf of the landlord. P.W.3 is the husband of the landlord. He has stated that in the year 1960 he started the wholesale cloth business along with his father and ever since then he has been working for the firm subsequently his brothers also joined the firm. His father died in the year 1979, thereafter some of the brothers retired from the firm. P.W.3 wanted to retire from the firm because there was no good relationship between himself and his brother Anandamal. According to him Anandamal told him to separate from the firm and thereafter ceased to co-operate with him in doing the business. According to him he will get about four lakhs when he retires from the said firm. The wholesale business in Bangalore was carried on in this locality, especially in D.S.Lane, A.M.Lane and D.K.Lane. The schedule premises faces Chickpet Road which is between D.S.Lane and A.M.Lane. In this locality about 2,500 wholesale cloth shops are there and no other area in Bangalore there is wholesale cloth shop. Actually he does not specifically say that his relationship with his brother Anandamal was cordial. In the chief examination he asserted that the mutual relationship between himself and his brother Anandamal was not good. In the cross-examination also he repeats the statement that 'myself and my brother Anandamal are not in good terms. My relationship with my eldest brother Chandana mahal is cordial and also other elder brothers. It is false to suggest that myself and my family members are visiting the house of Anandamal. Myself and Anandamal are residing in our own building separately.' He further stated that in the open site purchased by him they put up a building jointly and there was an oral agreement between them that ground floor and first floor should go to the share of Anandamal and second and third floors should be the share of Mohanlal (P,W.3). This is with reference to another building where they are residing. It was further elicited in the cross-examination that as on the date of his deposition he had not retired from the firm. He further states that in the ground floor of his residential building there is a godown. Their firm Mohanlal and Anandamal and Company has two trade names - Mills Cloth Centre and Novelty Traders. To a specific question again he stated that two shops below his residence were not shops but were godowns and that it was not possible to do the business in the said shops. No specific suggestion was made to P.W.3 that he had no real intention to retire from the existing partnership business, while he was cross-examined. There can be no doubt that the building is situated in a locality which has established itself for whole sale business in cloth. The building is in the junction of two Roads. Just because, schedule premises faces Chickpet main Road, its suitability for wholesale business cannot be doubted having regard to the prevalent wholesale business houses in cloth nearby, that too when, admittedly, the I Floor houses the wholesale business of the existing firm.
8. The tenant was examined as R.W.1. He asserted that he is running cloth business in the name of M/s.Praveen Fabrics. Earlier he was running the business in the name of Prabhath Stores. He gave the history of earlier partnership. Subsequently the business was being carried on in the name of Anuradha. According to him Mohanlal is attending to the business in first floor along with his brother Anandamal and asserts that the landlady is residing in D.S.Lane and there are two shops available to her in the said building which could be used for the purpose of her husband. Most of his examination pertains to the alleged partnership which he entered into with Naresh Kumar and others and he also tried to assert that it was not possible to have wholesale business in the schedule premises because it faces Chickpet Main Road. Nothing has come out in his evidence to demolish the assertion made by P.W.3 about the relationship between Mohanlal and Anandamal not being cordial. He simply asserts that two brothers are attending to the business in the first floor.
9. The fact that Anandamal was not examined by the landlady is not a clinching factor to defeat her case. Either because of the lack of cordiality between the two brothers or for some other reason she might not have examined him. The landlady has substantially proved that the turnover of the business has come down in recent years inspite of the value of the goods having gone up. This shows that the actual volume of business has got reduced and this is a circumstance indicating that two brothers are not carrying on the business properly. After all it is a firm which has a history commenced in the year 1960. It is an established firm. No reason is given as to why its business has gone down or must have gone down by the tenant who has been carrying on his business in another floor of the same building. The trial Court has given a finding based on this circumstances read with deposition of P.W.3 that obviously the two brothers Mohanlal and Anandamal are not cordial in terms and there is a lack of co-operation between the two regarding the business affairs and therefore the business has suffered loss. This finding is essentially based on the appreciation of proved documents about the turnovers and the deposition of P.W.3. I do not find any erroneous principle which has affected the decision of the trial Court. No relevant factor has been ignored by the trial Court and no other irrelevant factor has been applied and considered. Therefore, inspite of a wider jurisdiction vested in this Court under Section 50 of the Act, which is wider than Section 115 of C.P.C., still it is not possible to reverse this finding of fact arrived at by the trial Court.
10. The evidence fully discloses that the tenant is aged. Even at the time he gave his evidence as R.W.1 in the year 1987 he was aged 76 years. Admittedly he has his son but he has chosen three strangers for the alleged partnership Exhibit P-3. The actual business is being carried on by other partners even though R.W.1 asserts that he is participating in the business. The partnership of the business will be presently referred to which indicate that the tenant has no voice in the day to day administration of the business of the alleged partnership, such as operating the bank accounts, further investment of the capital, re-valuation of the assets in case the partnership is to be dissolved. It is also clear that as per Clause 14(b) of this deed Exhibit P-3 the assets of the firm including the goodwill shall be of the other three partners and the tenant herein is eligible only for the share of the profits in the firm. However, in another clause there is a statement that the net profits or losses shall be apportioned among the partners in the ratio stated in Clause 10 of the deed and the percentage of the tenant is stated as 40 in this regard. The nature of this partnership is very material while considering the question of comparative hardship. I do not think a person who will be more than 80 years as on today would think of continuing in active business. It is not his case that the business will be continued by his children and the premises will be required for them. At the most R.W.1 expects to be sleeping partner having regard to the terms of the alleged partnership deed and his age. He has four sons and 3 daughters. The sons are residing with him but they have not joined him in the business though vaguely he says that his sons are attending to his business. How and to what extent he will suffer hardship is not stated in his evidence. Each party to the proceedings will have to adduce evidence as to the hardship that may result to the particular party. The landlady will have to prove the hardship that would result if eviction is denied, similarly the tenant will have to prove the hardship that will result by an order of eviction. These two hardships wilt have to be compared by Court. In the instant case R.W.1 nowhere gives the reasons for alleged hardship that may result to him by an order of eviction. Mere assertion that he will suffer hardship is not sufficient. The hardship is the result of certain circumstances. These circumstances should be established. The landlady has proved that she has no other premises where her husband can start wholesale business in cloth and that he will have to retire from the firm separating himself from his brother, This circumstance, it proved, is sufficient to hold that the landlady will suffer hardship also by the contra material to tilt the scale in favour of the tenant, I affirm the finding of the trial Court that there will be greater hardship to the landlady in case eviction is denied to her, as against the alleged hardship to the tenant by an order of eviction. Further, P.W.3 has pointed out that several shop buildings have come up in the locality and if actually the tenant minds, he can secure an alternative accommodation in one of those buildings for his business.
11. It is also not possible to accept the plea of the landlord that the landlord has been demanding higher rent and his intention is to evict the tenant in order to lease the premises again for a higher rent. This allegation has not been proved. There is no acceptable evidence on this point.
12. RE. SUBLETTING:
Mr. Sundaraswamy contended that a tenant is entitled to enter into a partnership with others to carry on his business in the leasehold premises and in such a situation it cannot be said that tenant has parted with the legal possession of the leasehold and if so, question of sublease would not arise. It is true that a sublease involves parting with the legal possession of the premises by the tenant in favour of another. Similarly, the initial burden is on the landlord to prove the relevant basic facts. However, the proof of this fact also depends upon the provisions of not only Section 21(1)(f) but also of Section 21(3)(b) of the Act. Section 21(3) read thus ;
' 21 (3) : For the purposes of Clause (f) of the proviso to Sub-section (1) the Court may presume that the premises have been sublet by a tenant :-
(a) XX XX XX (b) In any case where such premises have been let for non-residential purposes if the Court is satisfied that the tenant without obtaining the consent in writing of the landlord has allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such a person is a partner of the tenant in the business or profession but really for the purpose of subletting such premises to that person.'
13. Therefore, if it is proved that ostensibly an alleged partner of a tenant has been allowed to occupy the premises which was in reality for the purpose of subletting the premises, then the Court may presume that the premises have been sublet. In other words, the substance of the transaction can be probed into and if it is established that the person in occupation has been set up as a partner for the purpose of subletting the premises to him, the Court may presume subletting and the burden will shift on to the tenant to prove that there has been no unlawful subletting.
14. The partnership should be genuine and not a mere device to | induct a subtenant.
15. Mr. Sundaraswamy referred to a Decision reported in HELPER GIRDHARBHAI v. SAIYED MOHMED MIRASAHEB KADRI AND ORS., : [1987]3SCR289 in support of his contention that the partnership deed Ex.P.3 reflected a genuine partnership and similar clauses found in Ex.P.3 were considered by the Supreme Court in the aforesaid Decision. The tenant involved in the said case had only a right to share profits. He could not operate bank accounts. However, he had brought in his asset which was his interest in the schedule premises as a tenant. That was sufficient to uphold the genuineness of the partnership. At para-5 the Supreme Court pointed out that,--
' It is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy.'
In para-8, it was pointed out that whether there was a partnership or not, may in certain cases be mixed question of fancy and law in the sense that whether the ingredients of the partnership as stated in the law of partnership were there or not in a particular case must be judged in the light of the principles applicable to the partnership. The Supreme Court held that just because the tenant was not to share the losses it cannot be held that it was not a genuine partnership because the other elements of partnership were fully available. The evidence disclosed that the partnership deed was acted upon in the said case. The capital contributed by the tenant was actually his interest in the premises as a tenant. There was nothing illegal in the terms of the partnership and therefore the deed cannot be ignored because its terms were acted upon. At para-11, Supreme Court held as follows :-
'We are of the opinion that there was evidence that these terms were acted upon. There was nothing intrinsically wrong in law in constituting a partnership in the manner it was done. It was contended by Mr.Mehta that there was no agency; reading the partnership deed as we have read with conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with the partnership. This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm.'
16. Ex.P.3 is the deed of partnership in the instant case. There are four partners including the tenant, but other 3 partners are quite strangers to him. But that by itself is not a ground under the Partnership Act to negative the validity of the deed. The capital is shown to be Rs. 16,001 /- out of which the contribution of the tenant is Rs. 1,001 /-. The further capital has to be provided only by other three partners and first two partners only shall be in charge of the accounts and day-to-day management of the business. Profits and losses are to be shared in the proportion of 20% each by the other three partners and 40% by the tenant. However, as per Clause 11 the tenant (party No. 4) was not entitled to demand revaluation of any of the assets of the firm at the time of his retirement or dissolution of the firm. On the death of the tenant his son Mahendra Kumar shall be taken as a partner. The loans could be incurred only by other three partners and the tenant shall not have any right to discharge the claim against the business. The bank account will be in the name of the firm to be operated by Party Nos. 1 and 3. The lease rights and furniture and fittings of the shop premises shall be that of the tenant (Party No. 4) and on dissolution of the firm they shall be given to him. However, the assets of the partnership including the goodwill shall be of the other three partners only.
17. Prima facie there is nothing to reject the deed as a sham one and its terms are in no way worse than the terms referred by the Supreme Court in the aforesaid Decision. But that by itself will not clear the question because it will have to be found out whether the landlord has established that this partnership deed was only a device and in reality not acted upon by the parties and therefore.in effect it was used for the benefit of persons other than the tenant. The trial Court has held that the tenant has absolutely no interest in the business carried on by Naresh Kumar and according to the trial Court the business was in reality carried on by R.W.2 Naresh Kumar (one of the alleged partners). For this purpose the trial Court relied mainly on the deposition of R.W.2 which mostly is based on the terms of the partnership deed Exhibit P-3, such as, the tenant not having any right to discharge any claim against the firm and he having no right to operate bank accounts, etc. However, there was a discrepancy between the deposition of the tenant as R.W.1 and R.W.2. It was elicited from R.W.1 that he was getting a fixed sum of Rs. 1,000/- per month from Naresh Kumar and not Rs. 3,000/-. But R.W.2 Naresh Kumar stated that he was not paying any amount to the tenant but then volunteered to say that the tenant was taking the money himself. Again here this statement is not quire clear about the amount taken by the tenant R.W.1 though the trial Court observes that the implication was according to R.W.2, the tenant was taking Rs. 3000/-. The entire sentence spoken to by R.W.2 read thus:
' It is falls to say that I am paying Rs. 3000/- to the respondent for using the schedule premises. I am not paying any amount to the respondent and the witness volunteers that the respondent takes. The respondent has written day book and ledger.'
Therefore the trial Court was justified in assuming that a sum of Rs. 3,000/- was being collected by the tenant for the user of the premises by Naresh Kumar. From the terms of the lease deed and from these aspects inference was drawn that the tenant had no Interest in the business of the firm.
18. The application of the principle stated by the Supreme Court in the above Helper Girdharbai's case substantially supports the contention advanced by Mr.Sundaraswarny on behalf of the tenant because in the instant case also under the deed of partnership the tenant contributed the leasehold interest and was entitled to share the profits and losses. But the difficulty in the instant case is whether this was a genuine transaction in reality. The evidence of P. Ws.3 and 4 show that actually Naresh Kumar R.W.2 was carrying on the business. Even R.W.1 -the tenant states that :
' It is true Naresh kumar comes and open the shop every day. Naresh kumar and myself are used to close the shop. It is not correct to suggest that Naresh kumar alone is closing the shop every day.'
The clear indication is that the schedule premises is under the control . of Naresh kumar because he has to open the shop everyday. Another partner stated in Exhibit P-3 is Bipin Kumar. R.W.1 states 'I do not know Bipin Kumar'. It is rather a surprising feature for a partner to say that he is not aware of the other partner. If actually there was a genuine partnership nothing prevented the tenant from disclosing it in the objection statement. Inspite of a specific assertion that M/s.Praveen Fabrics was an unlawful sub-tenant in para 6 of the eviction petition the tenant did not explain as to how the said firm was found in the premises. The landlady had to summon Exhibit P-3 and it was proved through the officers of the Commercial Tax Department (P.Ws.1 and 2). The fact that the tenant suppressed the factum of Exhibit P-3 and the nature of M/s.Praveen Fabrics in his pleading is a strong indicator that the said deed was not disclosed to others and that something required that it should be dealt clandestinely amongst the alleged partners. Similarly about the payment of Rs. 3,000/- to the tenant by Naresh kumar, there cannot be any discrepancy between the two witnesses. It is a question of fact which ought to be within the knowledge of both R.Ws.1 and 2.
19. Apart from Ex.P.3, the tenant has not pointed out as to how and when the profits were shared by him . The accounts of the firm were not produced. It is not known whether actually any balance sheet/profit and loss account, was prepared. The best evidence, to show that the partnership was acted upon, was available only with the firm, of which R.W.1 is the alleged partner. Therefore, the non-production of this evidence read in the context of the conduct of the tenant (R.W.1) in not disclosing the existence of such a firm, in his statement of objection, is a dominant factor to be considered, which leads to the inference that the partnership was not acted upon for the purposes of the business. H.V.RAJAN AND ANR. v. Y.S.SURENDER AND ORS., ILR 1979 KAR 1049: Para 26was relied upon by Sri. Sundaraswamy. It reads:
' In the instant case, however, as rightly pointed out by the Special Deputy Commissioner, there is no subletting also. The tenant had entered into partnership for the purpose of running cinematographic business with one Pai styling the partnership firm as 'Brindavan Enterprises', ff a tenant enters into a partnership with another for the purpose of business, there is no subletting at all. The tenant does not part with the possession. He continues to be in possession of the demised premises. That is what is laid down in the case of Gundalapalli Ranngamannar Chetty v. Desu Rangiah. Thus the Special Deputy Commissioner has come to the correct conclusion that there was no vacancy whatsoever, either notional or actual, when the tenant entered into a partnership with another for running his business under the name and style, 'M/s. Brindavan Enterprises'.'
Similarly, : AIR1954Mad182 (Gundalapalli Rangamannar Chetty's case) was cited. These Decisions state the principle. However, they are not in any way lay down the proposition, that whenever a deed of partnership exists and partnership is alleged, its genuineness should be accepted, without reference to other circumstances. In this connection, the Decision of the Supreme Court in Srnt. RAJBIR KAUR AND ANR. v. S.CHOKOSIRI & CO., : AIR1988SC1845 is quite relevant. Eviction was sought on the ground of unlawful subletting by the tenant. The tenant contended that he was carrying on his business of selling cloth and garments and he made provisions for supply of cool drinks etc., in a part of the premises for the benefit of the customers and in another part tailors were kept for the benefit of customers who buy the cloth and that those persons who sold the cool drinks etc., and the tailors were only licensees were under him. At para-10 (page 1850) the Supreme Court posed the question thus:
'Such controversy as exists in the case terms solely on whether the relationship between the respondent on the one hand and 'M/s.Kwality Restaurant' and the 'Royal Star Tailors' on the other is one of subletting?'
Thereafter, the Court proceeded to discuss the tests applicable in the case of a licence and of a iease. As to lease, it was observed :
' It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant being for consideration. While the definition of 'Lease' in Section 105 of the Transfer of Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand, the definition of a 'Licence' under Section 52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise amounts to an 'easement' or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only of the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true, wherever there is exclusive possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called 'possessory licences' which confer a right of exclusive possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. (See: John Dewar, 'Licences abd Land Law; Modern Law Review) (Vol.49 No. 6 No. v 1986) and S.Moriorty 'Licenses and Land Law; Legal Principles and Public Policies', (1984) 100 LQR 376). Thus exclusive possession itself is not decisive in favour of a lease and against the mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has not power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence terms on the operative intention of the parties' and that there is no single, simple, litmus-test to distinguish one from the other, 'the solution that would seem to have been found is, as one would expect that it must depend on the intention of the parties.' [See.Cobb v. Lane - (1952(1) All.E,R. 1199]'
By referring to 5. Mrs. M.N. Club Wala and Anr. v. Fida Hussain Saheb and Ors., : [1964]6SCR642 it was further held that this intention has to be ascertained on a consideration of the ail the relevant provisions in the agreement As to the conclusiveness of the document under which such a relationship is created, it has to be examined in two distinct contexts; one such context is, the context of landlord's assertion that the document was not binding him and only is a device. On this context, Supreme Court observed at page 1852:
' The intention to be gathered from the document read as a whole has, quite obviously a direct bearing. But in cases where, as here, the landlord alleges that the tenant has sublet the premises and where the tenant, in support of his own defence, sets up the plea of a mere licensee and relies upon a deed entered into, inter se between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed. At best, it is a piece of evidence, the weight to be accorded to which will necessarily depend upon all the other circumstances of the case. The tenant and the sub-tenant, who jointly set up the plea of licence against the landlord may choose to camouflage the truth and substance of the transaction behind a facade of a self serving and conveniently drafted instrument. The transaction might be collusive and a mere mask the parties choose to wear to confuse and confound third parties. In such a case, the realities and substance of the transaction and not merely the deed become the basis for determination of the tegai nature of the relationship. The deed is a mere piece of evidence. In deciding whether a grant amounts to a lease or only a licence, regard must be had more to the substance than the form of transaction. It is determined by the law and not by the label the parties choose to put on it. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts done by the grantee, show that he has and was intended to have the right of exclusive possession. The fact that the agreement contains a clause that no tenancy is to be created will not, of itself, preclude the instrument from creating a lease,'
Again at page 1857, it was held:
' If exclusive possession is established and the version of the respondent as to the particulars and incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the 'party' case is on the party who takes the risk of non-pursuation. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden shifts according as the weight of the evidence produced by the party during the trial.'
Thus, it is clear, that it is open to the landlady to challenge the documents set up by the tenant as a mere device to camouflage the truth and substance of the transaction behind a self serving and conveniently drafted instrument. The burden of establishing that the tenant has sublet the premises unlawfully is on the landlord; but, this burden may get discharged when evidence adduced by both the parties is examined at the end of the trial, read with the proved circumstances of the case.
20. Though Rajbir Kaur's case involved the rival contentions as to lease or licence, the principles enunciated by the Supreme Court would be equally applicable to the rival cases of an alleged lease by the tenant as against the alleged partnership entered into by the tenant.
21. In the instant case, the tenant suppressed the factum of partnership in his pleading. This factum of partnership has a direct bearing on the facts asserted by the landlady in para-6 of the eviction petition. Unless the tenant was doubtful of the genuineness of the partnership having been acted upon, there is no reason for him to suppress the fact. His explanation that M/s.Praveen Fabric is not a sub-tenant, but a business concern of which he is a partner, was put forth much subsequently. The landlady had to summon Ex.P.3 and examine officer of Sales Tax Department to expose the deed of partnership. The landlady tried to show that in reality the said business was the business of Naresh Kumar. In fact, evidence of R.W.2 substantially corroborates this assertion of the landlady that, M/s.Praveen Fabrics was the business of R.W.2; even the other two partners were not taking any interest in it. Second partner nad his own business elsewhere, while 3rd partner seem to be a house wife. Tenant did not know the 2nd partner at all (as R.W.1, he says so). If, when already his business had a name 'Anuradha', there was no reason to change its name to M/s.Praveen Fabrics, if actually it was a business of the tenant, that is continued. No role is kept for the tenant's grown up sons to participate in the business. It was allegedly a thriving business which he closed, instead of continuing it with his sons.
22. In these circumstances, I am of the view that the trial Court cannot be held as having erred in holding that the tenant has sublet the premises unlawfully, to M/s.Praveen Fabrics and that the partnership deed was not acted upon; consequently Ex.P.3 was a mere device to conceal the real nature of the transaction under which the tenant sublet the premises, unlawfully for gain.
23. In SREE SATYANARAYANA HALL AND ORS. v. A.C.NI JAGUNA, 1973(1) Mys. L.J. 343 this Court examined the real transaction involved and negatived a similar plea set up by the tenant; partnership, there, was held to be not a genuine transaction.
24. Consequently, I affirm the order of eviction made by the trial Court. Since the business run in the schedule premises has to be shifted by the occupants, I grant nine months time to the tenant to vacate and hand over vacant possession of the premises to the landlady. '
The Revision Petition is accordingly dismissed.