Judgment:
V.K. Jhanji, J.
1. This is tenant's revision directed against the order of the Appellate Authority whereby the order of the Rent Controller was set aside and the tenant was ordered to be ejected.
2. Landlord (respondent herein) filed an ejectment application against the petitioner alleging therein that the shop in dispute was let out to Hem Raj, petitioner No. 1 who has sublet the same to petitioner No. 2 It was specifically alleged that the subletting came into being after 12.12.1976 without the consent of the landlord. In reply to this, tenant in his written statement took up the plea that ever since the inception of the tenancy, he has been in possession of the shop and has been doing cloth business in partnership with petitioner No. 2. He denied that he ever sublet the shop to petitioner No. 2.
3. Rent Controller, after appreciating the entire evidence on the record, dismissed the ejectment application. The Rent Controller, on the basis of the evidence on record, held that the landlord has failed to establish that petitioner No. 1 has sublet the shop to petitioner No. 2. In consequence thereof the ejectment petition was dismissed. On appeal by the landlord, the Appellate Authority set aside the order of the Rent Controller and ordered ejectment of the tenant. This order is being challenged in this civil revision.
4. Mr. S. P. Gupta, Advocate, learned counsel for the petitioners contended that the order under revision is liable to be set aside as the petitioners have clearly established on record by producing volumi- nous documentary evidence that both the petitioners, are carrying on the business as partners in the shop since 20 1.1969. He further submitted that no objection whatsoever was taken by the landlord when the documents were produced and proved on the record, and therefore, the same were rightly taken into consideration by the Rent Controller.
6. On the other hand, learned counsel for the landlord, Mr. H. S. Gill, Advocate submitted that petitioner No. 1 has sublet the premises to petitioner No. 2 with effect from 1.4.1977. With regard to the partnership deed, Exhibit RW 10/1, dated 22.4.1977, he submitted that the same is a sham and paper transaction and has been created to camouflage the act of subletting.
6. I have gone through the evidence with the help of the learned counsel for the parties and taking into consideration the respective contentions of the learned counsel, I am of the view that this revision deserves to succeed.
7. Landlord in this petition has alleged that petitioner No. 1 has sublet the shop to petitioner No. 2 on or after 12.(sic).1976. Petitioners in their written statement have denied and maintained that they are carrying on business since 1969 in partnership. In order to prove this fact, petitioners have produced and proved on record, Exhibit R-1, Partnership Deed dated 1.5.1969, Exhibit R-2, Partnership Deed dated 1.4.1972, Exhibit R-3, Partnership Deed dated 16.4.1973. They have also produced, Exhibit R-4 and R-5 in order to show that the firm ; M/s. Baldev Kishan Tarlok Chand was registered with the Registrar of Firms. In order to prove that there was effective partnershiy between them, they produced income-tax returns. Exhibit R-7 to R-14 and Balance Sheets (Rokar and Khata entries), Exhibit R-15 to R-30. A11 these documents taken together clearly indicate that petitioner No. 1 was carrying on the business with petitioner No. 2 in partnership under the name and style of M/s. Baldev Kishan Tarlok Chand since 1969 and carried on the same till 31.3.1(sic)77 when the firm was dissolved and a new partnership firm came into being vide partnership deed dated 2.4.1977, Exhibit RW-10-1. Partnership Deed dated 2.4.1977 shows that both the partners agreed to share profits and losses of the business to the extent of 25% and 75% respectively. This partnership deed was submitted to the income-tax department in the present case. I am not in agreement with the argument of learned counsel for the respondent that this document was created after the ejectment petition was filed. The ejectment petition was filed on 25.4.1977 whereas new partnership came into existence with effect from 1.4.1977 when the old firm, namely, M/s. Baldev Kishan Tarlok Chand was dissolved and a new firm known as M/s. Baldev Kishan Samiti Kumar came into existence on the basis of the partnership deed, Exhibit RW-10/1. Ev(sic) otherwise, I find that the landlord in his Plaint has pleaded that sub-tenancy was created on or after 12.12 1976 but tenant has produced on record, accounts of the previous firm ; M/s. Baldev Kishan Tarlok Chand for the period ending 31.3.1977. Therefore, the landlord has failed to establish on record that sub-tenancy came into existence after 12.12.1976. The fact that petitioner No. 1 agreed to share profits and losses of the business to the extent of 25 per cent is also not enough to prove that partnership deed dated 2.4.1977, Exhibit RW-10/1 is a sham and paper transaction. The facts proved on the record of this case clearly point out that it is a case of continuing of earlier partnership Tenant was firstly carrying on the business under the name and style of M/s. Baldev Kishan Tarlok Chand and with effect from 1.4.1977 started carrying on the business under the name and style of M/s. Baldev Kishan Samti Kumar. The other circumstance that petitioner No. 1 has shifted to his native village Chauhanke Khurd which is at a distance of ten miles from Barnala, is also of no consequence. Firstly, there is no definite evidence on record to prove that petitioner No. 1 has shifted to his village from Barnala ; secondly, even if he has shifted to his village is not enough to hold that petitioner No. 1 has transferred his rights in the tenanted shop to petitioner No. 2. Village Chauhanke Khurd where petitioner No. 1 is alleged to have shifted is not that far away from Barnala and, therefore, it would not be difficult for him to reach his place of business every day. So long as petitioner No. 1 is having control over, the business, subletting cannot be inferred.
8. Under the circumstances, the order of the Appellate Authority cannot be sustained and is accordingly set aside. In the result, this petition is allowed and the order of the Appellate Authority ordering ejectment of the tenant is set aside and that of the Rent Controller is restored with no order as to costs.