Mohammad Rafiq, J.
1. This writ petition has been filed by M/s M.P. Automobiles and its partners Smt. Indra and Mahendra Kumar, hereinafter referred to as 'the tenant' against Punit Mittal, hereinafter referred to as 'the landlord', challenging the judgment dated 07.10.2011 passed by the Rent Tribunal, Bharatpur, whereby eviction petition filed by landlord has been allowed, and the judgment dated 08.04.2015 of the learned Appellate Rent Tribunal, Bharatpur in Appeal No.23/2011 filed by tenants there against, has been dismissed.
2. The rented premise, situated at Kumher Gate, Bharatpur, was let out by father of landlord, to the firm M/s M.P. Automobiles for a fixed rent ofRs. 225/- per month on 01.03.1974. It was pleaded by the landlord that as per the rent-note, if there was any change in composition of partnership firm, intimation would be sent to the landlord. In the year 1992 the rent was enhanced toRs. 400/- and thereafter, the rent was again enhanced toRs. 600/- per month on 01.04.1998. Earlier, defendant no.5 (in the original application) Mahendra Kumar filed a suit against landlord Punit Mittal and one Babulal stating therein that he should not be evicted from the property in question without following due process of law. Defendant no.5 Mahendra Kumar sent a legal notice through his counsel Shri Rakesh Sharma on 10.06.2003 to landlord Punit Mittal, demanding his bank account and in reply thereto dated 18.09.2003, he gave his bank account. According to the tenant, all these events took place when Punit Mittal was not the owner of the rented premise. He claims to have lost the original rent note, which was misplaced but finally he found the same in the month of July, 2004 in pile of old papers stored in old box. On 13.09.2004, the landlord sent a notice for recovery of due rent and for revision of rent as well as to vacate the premise. It was further alleged in the eviction petition that in violation of the terms and conditions of the rent note. The defendant no.4 Ramshri was struck out from partnership and the premises has been given on subtenancy to defendant no.4 Mahendra Kumar. In the eviction petition, prayer for eviction was made.
3. Defendants no. 1, 2 and 5 filed reply to the eviction petition and stated that Punit Mittal was not entitled to file eviction petition as he has not shown as to on what basis he claims himself to be owner of the property. Defendant no.3 Vishnu Dutt Jain has retired from the partnership. The property in question was taken on rent in the year 1974 by defendants no.2, 3 and 4. Defendant no.5 Mahendra Kumar is not subtenant but he used to merely assist her mother defendant no.2 Indra in the business of the firm and that no rent amount is due. The landlord has, under threat, got the amount of rent enhanced, but when the tenant refused to pay the enhanced amount of rent, the eviction petition was filed. Defendant no.5 has described himself as Manager of the firm. In the family partition, the rented shop came to the share of Punit Mittal (landlord). A family settlement deed was executed to that effect on 29.03.1975 and registered in the office of Sub Registrar, Bharatpur on 31.03.1975. Information thereabout was given to tenant, who thereafter started making payment of rent to the landlord. It was further pleaded that defendant no.5 Mahendra Kumar describing himself as the Manager of the firm, filed a suit against landlord and one Babulal, wherein he claimed to be tenant in the suit premise and prayed for injunction against his forcible dispossession. The said suit was dismissed on 03.09.2002, where against appeal filed by him, is still pending before the appellate court. Defendant no.5 Mahendra Kumar sent a legal notice through his Advocate Rakesh Sharma to landlord Punit Mittal, wherein he described himself as tenant in the suit premise and demanded from landlord the particulars of bank account. The landlord, by letter dated 18.09.2003 furnished the bank account details. He did not have knowledge of the question of rent note. When landlord got this property in the family settlement in his share, he did not procure the copy of the rent note as the original rent note was misplaced and finally he found the same in the month of July, 2004 in pile of old papers stored in old box. The originally agreed rent amount was increased from time to time. The rent note was executed in favour of the tenant-firm M/s M.P. Automobiles Limited, of which defendants no.2 to 4 were partners. The defendant no.3 Vishnu Dutt Jain had relinquished his share in the firm and retired. The defendant no.4 Ramshree also retired from the firm. Receipt of the rent was issued by the landlord Punit Mittal since 1975. Prayer was made for rejection of the eviction petition.
4. The Rent Tribunal allowed the eviction petition, which order has been upheld by the Appellate Rent Tribunal. Hence this writ petition.
5. Shri Manoj Bhardwaj, learned counsel for tenant-petitioners, has argued that both the courts below have failed to appreciate that for proving the sub-tenancy, not only possession but also payment of rent and parting with possession by original tenant has to be proved. In the present case, Mahendra Kumar, petitioner no.3 (defendant no.5 in original application), happens to be son of Smt. Indra, partner of the firm M/s M.P. Automobiles Limited and in that capacity, he was helping his aged and ailing mother. He cannot be described as sub tenant either of the firm or Smt. Indra Devi. It cannot be said that Smt. Indra Devi has parted with possession in his favour.
6. It is argued that finding on issue no.3 has been wrongly arrived at by the learned Rent Tribunal as no person of ordinary prudence could have arrived at such finding. If a mother, as a partner of the firm, takes help of her son in the business activities, it cannot be said that she has parted with possession of the rented premise. In fact, both the courts below have overlooked the admission of the landlord, who in the notice dated 13.09.2004 has described Mahendra Kumar (defendant no.5) as Manager of the firm M/s M.P. Automobiles. When Manager helps in the business, he does so as an agent of master. He does not have exclusive possession of his own.
7. Learned counsel for the tenant, in support of his argument, has relied on judgment of the Supreme Court inAmar Nath Agarwalla v. Dhillon Transport Agency, 2007(2) R.C.R.(Rent) 400 : (2007) 4 SCC 306,Irene v. V.S. Venkataraman and Another, 2002(1) R.C.R.(Rent) 435 : (2010) 15 SCC 711, andJagan Nath v. Chander Bhan, 1988(1) R.C.R.(Rent) 629 : AIR 1988 SC 1362.
8. Per contra, Shri Bipin Gupta, learned counsel for the landlord, has argued that the premise was let out to the tenant-firm of which there were three partners. Two of the partners having retired, there remained only one partner. The tenant-firm cannot be said to exist. Since the tenant-firm ceased to exist, the remaining partners being individual, are liable to vacate the rented premise. She has parted with possession in favour of her son Mahendra Kumar, who, in his statement, has admitted that he filed a suit against Punit Mittal, when he demanded higher rent. He filed the suit against him and described himself as tenant. In the legal notice (Exhibit A-21), he claimed to be tenant of landlord. In the statement, Shri Mahendra Kumar admitted that he filed said suit in his personal capacity and also admitted that his mother does not sit in the shop. He further admitted that the photostat machine was installed and business of photo copying was being run from the disputed shop and that the tractor parts are also sold.
9. Shri Bipin Gupta, learned counsel for the landlord, has relied on the judgments of the Supreme Court inKailash Chander v. Om Prakash and Another, (2003) 12 SCC 728,Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, 2009(2) R.C.R.(Rent) 456 : (2010) 1 SCC 217,Speedline Agencies v. T. Stanes and Company Limited, 2010(2) R.C.R.(Rent) 229 : (2010) 6 SCC 257,V. Sumatiben Maganlal Manani v. Uttamchand Kashiprasad Shah and Another, 2011(2) R.C.R.(Rent) 276 : (2011) 7 SCC 328, and that of this Court inAmba Lal v. Lalu Ram and Others, 2013(2) R.C.R.(Rent) 417 : 2013 (1) WLC (Raj.) 67.
10. I have given my anxious consideration to rival submissions and perused the material on record.
11. This is not in dispute that the sole surviving partner of the tenant-firm M/s M.P. Automobiles was Indra Devi. Core question required to be decided in this matter is whether, in the facts of the present case, Indra Devi, third and sole surviving partner of the tenant-firm, can be said to have sublet the rented premise to her son Mahendra Kumar and parted with its possession.
12. The Supreme Court in Kailash Chander, supra, has held that when the landlord has alleged that tenant has parted with possession and sublet the rented premise, it is for such person to establish that his possession on that premise was not as a sub-tenant. In Celina Coelho Pereira, supra, the Supreme Court, after revisiting earlier judgments on the subject, laid down following principles to be kept in view while deciding the question of sub-letting:-
"28. The legal position that emerges from the aforesaid decisions can be summarised thus:
(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
13. In Speedline Agencies, supra, the erstwhile landlord-company obtained eviction decree against appellant tenant on the ground of bona-fide requirement of its own business and residential purpose during pendency of revision petition in the High Court, the landlord company transferred its entire business to respondent company under the scheme of amalgamation. It was held that transferee-company is entitled to eviction. Rights arising out of eviction decree and bona-fide requirement of landlord continued to exist with transferee even after amalgamation and transferee was entitled to execute the decree.
14. In Amba Lal, supra, this court held that if parting with possession on part of tenant is proved, continued possession of premise merely on the basis of water and electricity bill issued in the name of tenant, cannot be presumed.
15. InJagan Nath v. Chander Bhan, supra, it was held by the Supreme Court that parting with possession by tenant meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b)of Section 14(1) of the Delhi Rent Control Act, 1958.
16. In Amar Nath Agarwalla, supra, the eviction was sought on the ground of subletting. The tenant while denying allegation of subletting, submitted that a partnership firm consisting of four partners had some dispute arose between the partners. A suit was filed and all the matters were settled by compromise. Consequently, the firm was dissolved with one of the partners being given all the assets of the firm who formed another firm with himself as one of the partners. It was averred that unless the tenancy was transferred by such partner to a third party, it would not amount to subletting. The Supreme Court held that one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm, and that there was no subletting of the premise.
17. In Irene, supra, it was held by the Supreme Court that servants/representatives of tenant left in occupation of premises when tenant travelled abroad, did not amount to parting with possession, and hence could not amount to subletting.
18. In Jagan Nath, supra, the Supreme Court has relied on its earlier judgment inSmt. Krishnawati v. Hans Raj, 1974(*) R.C.R.(Rent) 163 : AIR 1974 SC 280, in which two persons lived in a house as husband and wife and one of them, who rented the premises allowed the other to carry on business in a part of it. The question was whether it amounted to subletting and attracted the provisions of sub-section (4) of Section 14 of the Delhi Rent Control Act. The Supreme Court therein held that if two persons live together in a house as husband and wife and one of them who owns the house, allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises. In Jagan Nath, supra, the Supreme Court held that if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of Section 14(1)(b) of the Delhi Rent Control Act. Therein the Supreme Court observed that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Delhi Rent Control Act, 1958. In the facts of that case, the Supreme Court went on to hold that even though the tenant father had retired from the business and his sons had been looking after the business,
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it could not be said that tenant had divested himself of the legal right to be in possession. If the father had a right to displace the possession of the occupants, i.e., his sons, it could not be said that the tenant had parted with possession. 19. In Amar Nath Agarwalla, supra, a case somewhat identical on facts, wherein suit premise was let out to a partnership firm, which originally consisted of four partners, some dispute arose between the partners. A suit was filed and all matters were settled by compromise. Consequently, the firm was dissolved with one of the partners being given all the assets of the firm, who formed another firm with himself as one of the partners. It was alleged that unless the tenancy was transferred by such partner to a third party, it would not amount to subletting. 20. In the present mere filing of the suit by Mahendra Kumar Son of Indra Devi, the sole surviving partner of the original firm, describing himself as tenant, does not lead to inference that Indra Devi has parted with legal possession to her son. She continues to retain the right to displace possession of the occupant i.e. her son Mahendra Kumar. The business is also being carried on in the name of M/s M.P. Automobiles, the original firm. In part of the shop, if the photostat machine has been set up by Mahendra Kumar, cannot be, in the absence of any evidence to the contrary, said that Indra Devi had let out that part of the premise to him. In view of the above, the impugned judgments of both the courts below are not maintainable in the eyes of law and deserve to be set aside. 21. In the result, writ petition succeeds and the same is allowed. Both the impugned judgments of the Rent Tribunal as also the Appellate Rent Tribunal are set aside.