Danpati Addhahat Bhandar Vs. Ghansham Das Agrawal - Court Judgment

SooperKanoon Citationsooperkanoon.com/504724
SubjectTenancy
CourtMadhya Pradesh High Court
Decided OnMar-20-2009
JudgeK.K. Lahoti, J.
Reported in2009(4)MPHT31
AppellantDanpati Addhahat Bhandar
RespondentGhansham Das Agrawal
Cases ReferredTrilok Singh v. Ramprasad and Anr. (supra
Excerpt:
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- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - shikharchand jain was carrying on his exclusive business.....
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k.k. lahoti, j.1. the defendant has filed this appeal challenging the judgment and decree dated 21-11-2001 in civil appeal no. 84-a/2000 by 10th additional district judge, jabalpur by which the suit of plaintiff/respondent for eviction under section 12(1)(f) of the m.p. accommodation control act, 1961 (hereinafter referred as 'the act') was decreed, by reversing the judgment and decree dated 12-5-2000 in civil suit no. 3-a/98 by 4th civil judge, class i, jabalpur, dismissing the suit of respondent.2. this appeal was admitted on 21-3-2002 on the following substantial question of law:1. whether in the facts and circumstances of the case the findings recorded by the learned first appellate court that the respondent is able to prove his bonafide need for non-residential purpose and that he.....
Judgment:

K.K. Lahoti, J.

1. The defendant has filed this appeal challenging the judgment and decree dated 21-11-2001 in Civil Appeal No. 84-A/2000 by 10th Additional District Judge, Jabalpur by which the suit of plaintiff/respondent for eviction under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter referred as 'the Act') was decreed, by reversing the judgment and decree dated 12-5-2000 in Civil Suit No. 3-A/98 by 4th Civil Judge, Class I, Jabalpur, dismissing the suit of respondent.

2. This appeal was admitted on 21-3-2002 on the following substantial question of law:

1. Whether in the facts and circumstances of the case the findings recorded by the learned First Appellate Court that the respondent is able to prove his bonafide need for non-residential purpose and that he has no other suitable accommodation for the purpose within the town of Jabalpur is perverse and arbitrary as the respondent has been changing his versions from time to time and further that he was having alternative accommodation also within the town

3. Thereafter on notice of the appeal the respondent preferred cross-objections under Order 41 Rule 22 of the Code of Civil Procedure, 1908 (hereinafter referred as 'the Code') challenging the findings of the Appellate Court so far as it relates to non-grant of decree of eviction under Section 12(1)(b) of the Act. In this appeal, on 25-11-2008, one more substantial question of law, on the basis of cross-objection preferred by the respondent, was framed which reads as under:

Whether the Court below has committed an error in refusing to grant a decree under Section 12(1)(b) of the M.P. Accommodation Control Act, 1961 and the finding recorded in this regard is perverse?

4. The judgment and decree passed by the Appellate Court were assailed by the appellant on the following grounds:

(i) That the plaintiff changed his stand time to time by various amendments in the plaint. Initially suit was for whole sale business of grains but in the year 1986, the plaintiff amended the plaint by changing the ground as whole sale business of Khali, Chuni, Bhusa and Kirana (oil cake, small pieces of grains, straw/husk and grocery). Again in July, 1986, plaintiff amended the plaint by pleading that he had not got shop vacated by Gopaldas Shyamsunder. On 17-2-1998, the plaintiff pleaded that the disputed premises were required by him for the aforesaid business and its godown. On 30-7-1990, the plaintiff pleaded that Gopaldas Shyamsunder had vacated the shop in which his son Satish had started his business. By these pleadings, earlier version of the plant was changed and a new case was pleaded by the plaintiff which shows malafide on the part of the plaintiff and in absence of bonaftde, the plaintiff was not entitled for decree of eviction under Section 12(1)(f) of the Act. That in the same house, the plaintiff was having a godown for his storage, but the plaintiff pleaded that the said godown belongs to his father and after his death, as per the Will of the father it was succeeded by his mother, from whom he took it on tenancy at the rate of Rs. 1000/-per month.

(ii) That the first floor of the house was in possession of the plaintiff which could have been used for godown. Earlier a tenant namely Barar Oil Mill was in occupation of the first floor for its office and depot which now can be used by the plaintiff for his necessity.

(iii) That in Exh. D-1, the plaintiff had shown two godown in his possession so in fact there was no necessity to the plaintiff of the disputed accommodation. Apart from this, the plaintiff got vacant possession of a shop during the pendency of the suit which could be utilized by the plaintiff for his need but in place of using it, the plaintiff started shop for his son, in the name of G.K. Traders, this act by itself was sufficient to dismiss the suit. He referred the statement of Buddhulal (P.W. 1), Ghanshyam (P.W. 2) in support of his contention that the plaintiff was possessing various accommodations for his alleged need. He also referred Para 16 of the judgment of Lower Appellate Court to show that in fact alternative accommodations were available to the plaintiff for his alleged need. It was submitted that in fact there was no need to the plaintiff and the Appellate Court erred in decreeing the suit of plaintiff/respondent.

5. (i) Shri R.S. Tiwari, learned Counsel for plaintiff/respondent supported the judgment and decree of the Appellate Court and submitted that the plaintiff was carrying on his business alongwith his brother in the tenanted premises of Municipal Corporation, Jabalpur and required the suit accommodation for starting his own business. The plaintiff had decided not to continue his business alongwith his brother and wanted to start his own business in the suit accommodation. The Appellate Court after appreciating the evidence recorded a finding that the suit accommodation was required by the plaintiff for starting his business of cattle food and grocery. The disputed premises contain one shop and godown which are interconnected and are one accommodation. The defendant was carrying on his business of whole sale. It was submitted that each and every accommodation as shown in Para 16 of the judgment was considered by the Appellate Court and found that the aforesaid accommodations were not available to the plaintiff as an alternative accommodation.

(ii) Apart from supporting the aforesaid findings the respondent assailed the findings of the both Courts on the ground that on 1 -10-1971, the suit premises were let out to the partnership firm M/s Danpati Addhahat Bhandar of which partners were Shikharchand Jain and Ravi Chand Jain but subsequently on 1-9-1972, Sunil Kumar Jain was inducted as new partner w.e.f 19-10-71. In the year 1986 partnership was dissolved and both the partners who were partners of the firm on 1-10-1971 retired from the partnership and the disputed premises continued in possession with Sunil Kumar Jain as the proprietor of Danpati Addhahat Bhandar. Since 1986, the possession of the suit accommodation was with Sunil Kumar Jain who was not partner at the time of creation of tenancy and both the original partners had retired from the firm since 1986. So the tenant had parted with the possession of the suit premises to Sunil Kumar Jain in the capacity of proprietor of Danpati Addhahat Bhandar and it was sublet within the purview of Section 12(1)(b) of the Act for which no permission was sought by the tenant from the plaintiff. Reliance was placed to the judgment of this Court in Trilok Singh v. Ram Prasad and Anr. 1971 MPLJ 232, Baijnath v. State of M.P. and Ors. 1972 JLJ 127 and Kirti Narayan Agrawal v. Satyanarayan Rathi and Ors. 1991 MPLJ 140.

6. In reply to the aforesaid contention, Shri Deoras, learned Senior Advocate submitted that Sunil Kumar was inducted in the partnership firm in the year 1972 w.e.f. 19-10-71, he continued as partner of the firm till 1986. In the year 1986 earlier two partners retired from the firm and the firm business continued with Sunil Kumar Jain, so it was not a case of subletting but the partnership firm was dissolved and one partner had continued with the business of firm. Reliance was placed on Helper Girdharbhai v. Stiyed Mohammad Mirasaheb Kadri : AIR 1987 SC 1782 and Mahindra Saree Emporium v. G.V. Srinivasa Murthy : AIR 2004 SC 4289 and submitted that both the Court below rightly dismissed the suit of the plaintiff/respondent, so far as it relates to ground enumerated under Section 12(1)(b) of the Act, in which no interference is needed from this Court.

7. To appreciate the rival contention of the parties, it would be appropriate if the factual position in this case maybe seen.

(i) The plaintiff filed the suit on dated 26-11-1978 before the Second Civil Judge, Class I, Jabalpur for evicting the appellant from the suit accommodation which is a shop and adjoining godown shown in the map enclosed to the plaint with green colour. The suit premises were let out to the defendant on 1-10-1971 at the rate of Rs. 500/- p.m. Except the suit premises remaining non-residential portion of the ground floor was in possession of the other tenants. The defendant was carrying on his business from the shop shown as d] [k] x] ?k where he was having his Gaddi and remaining portion of the tenanted premises was used as godown. The plaintiff was carrying on his business in the partnership with his brother in the tenanted premises of Municipal Corporation, Jabalpur. He was not interested in continuing his business with his brother and wanted to start his own business of cattle food and grocery. The plaintiff was not having any other accommodation for his whole sale business. The plaintiff was having sufficient capital and experience for the business and for this purpose the suit accommodation was required by the plaintiff.

(ii) The suit accommodation was let out to Danpati Addhahat Bhandar through its partners Shikharchand Jain and Ravi Jain for godown of grains but these partners had closed their business of grains. Shikharchand Jain was carrying on his exclusive business of tube well drilling from Gole Bazar, Jabalpur, while Ravi Chand Jain started his business of Daal Mill at Richai. By this way the business of defendant partnership had closed and the partners of the firm without permission of the plaintiff sublet the premises to Sunil Kumar Jain in which he was carrying on his Cattle food business in the name of Danpati Addhahat Bhandar. On this ground a decree of eviction was also sought under Section 12(1)(b) of the Act. Though the suit was filed on other grounds enumerated under Section 12(1)(c) and (d) of the Act also but it is not necessary to refer the aforesaid grounds in this second appeal, as these are now not relevant. A notice was issued by the plaintiff on 20-8-1979 by which the tenancy was determined. The defendant in the reply of notice denied all the facts of the notice so the suit was filed before the Trial Court on 26-11-1998.

(iii) The defendant in the written statement admitted that the tenancy was at the rate of Rs. 500/- per month since 1-10-1971, except this all other grounds pleaded in the plaint were denied. At the time of entering into tenancy, Sunil Kumar was the partner of the firm. At that time the partnership was changed but after dissolution of partnership, Sunil Kumar was carrying on his business in the suit premises. Sunil Kumar's possession in the suit premises was continuing since the inception of the tenancy and he was carrying on his business, so the ground of sub tenancy was denied and explained by the defendant. The defendant also pleaded that the plaintiff was carrying on his business in three big shops of Municipal Corporation, Jabalpur. Apart from this, he possessed a big house at Nivarganj. He was having his Gaddi and go down. The ground of eviction ofbonafide necessity was changed from time to time by the plaintiff. The plaintiff never did cattle food and kirana business. The plaintiff can also start his business in the shop occupied by the plaintiff from the Municipal Corporation, Jabalpur. Apart from this the plaintiff was having one shop and godown adjoining to the suit accommodation. During the pendency of the suit, one shop was let out by the plaintiff to a jaggery merchant.

(iv) The Trial Court framed the issues and after recording evidence dismissed the suit of the plaintiff on the ground that the suit accommodation was not required by the plaintiff for his business. There was no sub-tenancy by the defendant.

(v) The Appellate Court after re-appreciating the evidence found in Para 9 of the judgment that on 1-10-71, Sunil Kumar was not partner of the firm, he was minor. He was not the son of Shikharchand Jain or Ravi Chand Jain but he was inducted as a partner vide partnership deed dated 1-9-72 w.e.f. 19-10-71. The original partners of the firm Shikhar Chand and Ravi Chand were not partners of the firm since 1986. Both the partners were carrying on their own independent business which was not the business of the firm. As the induction of a new partner in the firm cannot be treated as sub-tenancy, so induction of Sunil Kumar in the partnership was not sub-tenancy and on this ground, the ground under Section 12(1)(b) of the Act was not found proved.

(vi) So far as the ground under Section 12(1)(f) of the Act is concerned, the Appellate Court in Para 15 of the judgment recorded the findings that the plaintiff was carrying on his business in three shops of the Corporation on tenancy. One godown in Krishi Upaj Mandi, Damoh Naka, one shop 10' x 20' in the suit premises, a common passage of 8' x 50' and the first floor of the suit premises were in his possession. Apart from this the plaintiff was in possession of a godown which fell into the share of his father. The Appellate Court considered all the aforesaid accommodation in Para 20 of the judgment and found that in the tenanted shops of Municipal Corporation, plaintiff alongwith his brother was carrying on his business. The said accommodations were not belonging to the plaintiff. The plaintiff was entitled to start his business in the premises owned by him. The shop which was vacated by another tenant was occupied by the son of the plaintiff in which he was carrying on his business in the name of G.K. Traders. The common passage cannot be used for the business. The passage was utilized to use the staircase for the first floor. The first floor of the suit house was not a non-residential accommodation. It was never in possession of any tenant for non-residential purposes. On the aforesaid ground the Appellate Court found that the plaintiff was not possessing any suitable alternative accommodation for his whole sale business. In Paras 16 to 19 of the judgment, the Appellate Court considered the bonafide necessity of the plaintiff for starting his business of Cattle food and grocery and found that the aforesaid bonafide necessity was proved. On the aforesaid grounds the Appellate Court decreed the suit.

8. Now the first contention of the appellant in respect of various amendments in the plaint may be looked into. It is true that in the plaint, the plaintiff initially pleaded necessity to start his wholesale business of grain but subsequently nature of the business was shown as Khali, chuni, bhusa and kirana (cattle food and grocery) business. This amendment was incorporated on 10-2-1986. Thereafter though various amendments were made in the plaint but without changing the necessity as was pleaded on 10-2-1986 by the plaintiff. The suit was filed long back on 26-11-79 and if during the pendency of the suit, the plaintiff decided to start his business of cattle food and grocery, in place of grain, it cannot be said that there was some malafide on the part of the plaintiff or he was not entitled to change the nature of the business which was initially pleaded by him. A period of nearabout 30 years have elapsed since the date of filing of the suit and if during these periods, circumstances changed then the plaintiff was entitled to plead and prove such changed circumstances. After filing of the suit, if the plaintiff decided to start his business of cattle food and grocery and specifically pleaded this fact in the plaint and deleted earlier pleaded business of grain, no fault can be found. It is settled law that the bonafide necessity should continue from the date of filing of the suit till the final decree is passed. In this case, the plaintiffs necessity was to start his business in wholesale which was initially pleaded by the plaintiff in the plaint. Only by change of business from grain to cattle food and grocery, it cannot be said that necessity was not bonafide. The plaintiff in changed circumstances immediately amended the plaint and proved the necessity for starting his business of cattle food and grocery, the choice of plaintiff is to be given effect to and merely change of item of the business during the pendency of the suit, before commencement of the evidence, cannot be treated to be a malafide necessity of the plaintiff. In these circumstances if the Appellate Court found that the necessity was bonafide, no fault is found.

9. (i) So far as alternative accommodations are concerned, the plaintiff got the suit premises as per the partition deed dated 24-10-78 by which the suit premises fell in the share of the plaintiff. By the same partition, the premises which fell into the share of father of the plaintiff were subsequently bequeathed in favour of the mother of the plaintiff, Ramwati by will dated 2-1-81. But eventually after the death of Ramwati, said premises would be succeeded by Gopaldas. The Will of the father is on record as Exh. P-7 (c), so in view of the Will executed by the father of the plaintiff, the plaintiff was not entitled to get any right in the adjoining house. The plaintiff obtained said godown from his mother on tenancy, and in this regard the Appellate Court recorded its satisfaction that the said godown was on tenancy, let out by the mother to the plaintiff. In view of the aforesaid facts, if the Appellate Court found that the said godown was not of the plaintiff and cannot be treated as an alternative accommodation to the plaintiff, in the said findings no fault is found.

(ii) So far as the adjoining shop of the accommodation in which plaintiffs son Satish had started his business in the name of G.K. Traders is concerned, it was a shop of dimension of 10' x 20' which was unsuitable for the wholesale business of the plaintiff. If the plaintiff in place of starting his business in a small accommodation permitted his own son Satish to start his business, who in fact started his business and was carrying on his business, it was a natural act of the plaintiff in which no fault can be found and on this ground the plaintiff cannot be non-suited. It is not the case of the defendant that after getting possession of the shop from M/s Gopaldas Shyamsunder, the shop was let out to some other person but the plaintiff had permitted his son Satish to start his business. If during the pendency of the suit the plaintiffs son became major and started business in the said shop, no fault is found. The plaintiff was awaiting for the accommodation since last 30 years to start his business. At the time when this shop was vacated by Gopaldas, plaintiffs son was major and he started his business in the said shop, in which no malafide is found and the plaintiff cannot be non-suited merely on this ground. So far as the first floor of the house is concerned, it is a residential house. Apart from this, no prudent man will keep his godown on the first floor. The cattle food and grocery are the heavy articles and first floor cannot be said to be suitable place for their storage as godown.

Every time such material has to be lifted to the first floor for storage. In this case, there was no evidence that earlier the said portion was utilized by any other tenant for non-residential purposes. In absence of this a residential portion of the house that too of the first floor cannot be said to be an alternative accommodation for the wholesale business of the plaintiff. So far as the shops of Municipal Corporation and one godown of Krishi Upaj Mandi, which were shown in Exh. D-1 are concerned, tenanted shop or godown cannot be said to be an alternative accommodation. While considering the bonafide necessity, the premises owned by the landlord can be taken into consideration and not rented shops. The Apex Court in Chandra Kali Bali v. Jagdish Singh Thakur : AIR 1977 SC 2262, considering this aspect held that the decree of eviction can be refused only if the landlord is in occupation of his own premises and not of rented shops. In the present case, to consider the bonafide necessity of the plaintiff, rented premises from Municipal Corporation, Jabalpur, Krishi Upaj Mandi and from Ramwati Bai, mother of the plaintiff cannot be treated as an alternative accommodations. The Appellate Court rightly held that the aforesaid accommodation cannot be treated as an alternative accommodation for the necessity of the plaintiff and rightly decreed the suit.

In view of the aforesaid discussions, if the Appellate Court considering the entire evidence, decreed the suit of the plaintiff on the basis of such findings, no fault is found. See Salt Nagjee Purshotham and Co. Pvt. Ltd. v. Vimlabai Prabhulal : (2005) Vol. 8 SCC 252.

10. Now the second substantial question of law which has been framed on the basis of cross-objections preferred by the respondent may be considered. In the case factual position was not in dispute that on dated 1-10-71 Sunil Kumar was not the partners of the firm M/s Danpati Addhahat Bhandar. He was subsequently inducted as a partner. He was not a close relation of the then partners Shikharchand Jain and Ravi Chand Jain. He was introduced in partnership firm on 1-9-72 for which no permission was obtained by the tenant from the landlord. Subsequently, in the year 1986, partnership dissolved and original two partners Shikharchand and Ravi Chand retired from the firm and the partnership firm came to an end. Though Sunil Kumar who was subsequently inducted as a tenant, continued with the business but as a proprietor of the said firm. In view of the aforesaid factual position the legal position may be looked into. The Apex Court considered this aspect in Parvinder Singh v. Renu Goutam : (2004) Vol. 4 SCC 794, held thus:

8. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely, because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.

11. In this case, the documentary evidence produced by the parties may be looked into. Initially partnership deed between the partners is not on record but rent note (Exh. P-6) was between the plaintiff Ghanshyam Das and M/s Danpati Addhahat Bhandar, and was signed by Shikharchand, Ravi Chand as partners of the said firm. The aforesaid rent note (Annexure P-6) specifically provides that the tenants shall not be entitled to create sub-tenancy. This document was executed on 1-10-71. The defendant had produced the partnership dated 1-9-72, Exh. D-6 on record by which Sunil Kumar minor was introduced in the partnership firm as a partner in profit, only of 25% and the said partnership was treated to be effective from 19-10-71. Rs. 10,000/- were deposited by Sunil Kumar in the partnership while the capital of Shikharchand was Rs. 97,945.93 p. and the capital of Ravichand was Rs. 28,321.38 p. Thereafter the partnership was dissolved but the deed of dissolution is not on record. This dissolution took place in the year 1986 and as per the defendant, Shikharchand and Ravichand both retired from the partnership, started their own business since 1986 and the entire business in the suit accommodation was carried on by Sunil Kumar. In this regard, the statement of Shikharchand (D.W. 4) may be looked into who specifically admitted that he was receiving Rs. 3000/-per month from Sunil Kumar out of which he was depositing Rs. 500/- per month in the Court. See Para 35 of his statement. He further admitted that in his name Rs. 3000/- p.m. was debited as a salary but denied that it in fact it was rent. He had also admitted that now the proprietor of the firm was Sunil Kumar and he was not doing any work for the firm. In Para 32 of his statement he stated that he was taking care of the sale tax; income tax work of the firm for which he was getting salary from the firm but no such document was produced that in fact he was taking care of the accounts of the firm or was filing return of the firm in sales tax and income tax. D.W. 1, the Additional Commercial Tax Officer, N.K. Verma had appeared as the witness but he had also not stated anything that after 1986, Shikharchand had appeared on behalf of the firm in the assessment. The burden was on the defendant to prove all these facts. Sunil Kumar had appeared as D.W. 5 in the witness box. He stated that Shikharchand was taking care of the business and he was paid Rs. 3000/- p.m. salary. In Para 10 of his statement he had admitted this fact that Shikharchand had brought up him and also arranged his education. He cannot even dream to engage Shikharchand as servant. He further admitted this fact that Shikharchand was paid Rs. 3000/- p.m. because he helped him and gave shop to him. He admitted that the aforesaid amount was paid to him in lieu of the shop given to him but in the accounts this amount was shown as salary because the shop belongs to him. The aforesaid facts show that after dissolution of the firm in the year 1986, Shikharchand was carrying on his own separate business but was getting Rs. 3000/- p.m. from Sunil Kumar. No document showing the fact that Shikharchand was filing return of income tax or sales tax and was actively engaged in the business of the firm was filed on record. After dissolution of the firm in 1986, Shikharchand was not in the possession of the shop and entire business was taken care of by Sunil Kumar though in same name M/s. Danpati Addhahat Bhandar. Once the original tenant had lost his control on the shop and handed over its possession to a third person who was not a partner at the time when the shop was let out, the act of the defendant certainly falls within the purview of sub-letting the suit accommodation by parting with possession. After the original tenant had lost his control over the shop and handed over to a third person, a case of sub-letting was made out. The Apex Court in Perminder (supra), considering the situation held that merely because the tenant had entered into a partnership, he cannot necessarily be held to sub-let the premises or parted with possession to his partner. If the tenant was actively associated with the partnership and keep a control over the tenanted premises with him, may be alongwith the partners, the tenant may not be said to be parted with the possession. But if the control of the tenant accommodation has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration of creation of sub-tenancy or for providing the cloak or cover to conceal a transaction, is not permitted by law. The Court has not estopped from tearing the veil of partnership and finding out the real nature of transaction, entered into between the tenant and the alleged sub-tenant.

12. In Mohammedkasam Haji Gulambhai v. Bakerali Fatehali : AIR 1998 SC 3214, in similar circumstances where the accommodation was a shop, let out to a tenant, the tenant entered into a partnership within his four sons for carrying on the business of sale of medicines in the suit premises and a partnership deed was executed between them. The partnership was at Will and under Clause (7) thereof, it was provided that 'only the tenant-father Will be the exclusive proprietor and owner of the goodwill of the business, place of the business and all other rights of the business'. Subsequently a new partnership deed between two sons of the tenant was executed and in terms there of the tenant-father and his two other sons retired from the business of the partnership. Various clauses of the new partnership deed clearly showed that after the tenant-father retired from the earlier partnership he was to have no concern, right, title or interest in the new partnership which was now carrying on business in the suit premises, though in the same name. The rent was also paid by one of the two partners of the new partnership. The landlord filed a suit for eviction on ground of sub-letting. On the ground of sub-letting, considering the aforesaid circumstances, the Apex Court held that under the new partnership it was the sons of the tenant-father who were in complete control of the suit premises and were exercising exclusive possession for the same to the exclusion of the tenant-father. That tenant-father would occasionally visit the shop premises does not advance the case that he (tenant-father) could exercise his rights over the shop premises. He had handed over the shop premises to his sons who were exercising their independent right over the same and conducting their business thereat. The tenant-father had completely divested himself of the suit premises as well as the business. The landlord was therefore entitled to a decree of eviction. The law of the Apex Court in Mohammedkasam (supra) is fully applicable in the present case.

13. A Single Bench of this Court in Trilok Singh v. Ramprasad and Anr. (supra), considering the similar question in which the suit premises was let out to A in which he started assembling sewing machines for sale under a trade name. He entered into partnership with T and the firm was enlisted as small scale manufacturing unit. On dissolution of partnership A retired and business was taken over by T as his proprietary concern. In a suit by landlord for ejectment on the ground, inter alia, that the tenant had sub-let the accommodation to T, the latter pleaded that the privity of contract was brought about by reason of the landlord's acquiescence in the transfer of the premises on the dissolution of the partnership. The assent of the plaintiff was not established. This Court held that a partnership was regarded as a personality distinct from that of one of the partners. The transfer of leasehold right to T amounted to sub-letting of the premises without the consent of the plaintiff who was entitled to a decree for eviction.

14. The factual position in the present case is that Shikharchand was getting Rs. 3000/- p.m. though by way of salary but actual control over the shop was of Sunil Kumar. After dissolution of the partnership in the year 1986, Sunil Kumar was exclusively carrying on his business and in fact was in exclusive possession of the shop. Shikharchand nowhere stated in his statement that still he was in possession or control of the shop in question. The defendant ought to have produced account books of shop and the deed of dissolution of partnership between the partners showing their bonafides. Apart from this as per the statement of Sunil Kumar, the shop belongs to him and he was exclusive owner of the shop. In view of the aforesaid specific statement of Sunil Kumar in Paras 3 and 10 of his statement, no conclusion can be arrived except that since 1986 the possession of shop was parted with to Sunil Kumar in the capacity of sole proprietor of M/s Danpati Addhahat Bhandar. The earlier partnership of Shikharchand and Ravichand as a partner of Danpati Addhahat Bhandar came to an end. They retired from the partnership firm and started their own business at different places. In these circumstances, the Court below erred in not granting decree under Section 12(1)(b) of the Act in favour of the respondents. The conclusions recorded by the Court below, on the basis of the findings of the facts recorded by Court below, are apparently erroneous and cannot sustained under the law. The respondent was entitled for a decree under Section 12(1)(b) of the Act.

15. In view of the aforesaid the substantial question of law No. 1 in the appeal preferred by the appellant is decided against the appellant and substantial question of law framed on the basis of the cross-objection preferred by the respondent is decided in his favour.

16. Accordingly the appeal preferred by the appellant is dismissed but the cross-objection filed by the respondent is allowed and the suit of plaintiff is also decreed under Section12 (1)(b) of the Act. The findings in respect of the decree of eviction under Section 12(1)(f) of the Act granted by the Appellate Court is affirmed. The suit of the plaintiff is decreed under Section 12 (1)(b) and (f) of the Act and following decree is passed in the matter:

(i) The plaintiff is also entitled for a decree of eviction under Section 12(1)(b) of the Act.

(ii) The decree of eviction passed by the Appellate Court under Section 12(1)(f) of the Act is affirmed.

While dismissing the appeal, the appellant is allowed six months time to vacate the premises on following terms:

(a) The appellant to furnish an undertaking alongwith Sunil umar that the suit premises shall be vacated by them on or before 30-9-2009 peacefully without creating any hindrance or third party interest.

(b) The entire rent including arrears okrent up to date shall be deposited by the appellant within a period of 30 days from today, if already not deposited, and thereafter shall continue to deposit, the amount equal to the amount of rent by way of mesne profit in the Court every month in advance on or before 10th of every English calendar month. Appellant to deposit the cost incurred in the Court below within a period of 30 dftys from taday.

(c) On compliance of the aforesaid conditions, the Trial Court-cum-Executing Court shall stay the execution of judgfnent and decree up to 30-9-2009, failing which the respondent shall be entitled to execute the decree forthwith.

The respondent shall be entitled for the cost, of this appeal and cross-objections. Counsel's fee Rs. 2000/-.