Decided on March 31,1967



- (1.) THIS second appeal arises from a suit for ejectment and other reliefs. It was resisted by the defendant-appellant. The trial Court passed a decree for ejectment on the ground that the appellant sub-let a portion of the suit accommodation to a firm consisting of himself and another. The first appellate Court dismissed the defendant's appeal.
(2.) THE appellant is a tenant of the respondents 1 and 2. THE accommodation is non-residential. It is not in dispute that with effect from 1 April 1964 a partnership was constituted between Girdharilal (defendant 1) and Chandumal (defendant 5) to carry on business in the name and style of "M/s. Shiv General Stores". THE deed of partnership was executed on 14th April 1964. Its terms so far as they are material for the present) suit, will be presently stated. It is not in dispute that in one portion of the suit accommodation, the appellant continued his sweetmeat shop, while in the other the business of M/s. Shiv General Stores was carried on. THE plaintiffs' contention is that this amounted to sub-letting within the meaning of section 12 (1) (b) of the M. P. Accommodation Control Act, 1961. This contention has been accepted by both the Courts below. On the other hand, the appellant's case is that there was no sub-letting, nor assignment, nor parting with possession within the meaning of the said section. Mere permission was given to the firm to occupy a portion of the suit accommodation but this does not fall within the mischief of section 12 (b) of the Act. The decision of the question last mentioned turns upon the terms of the partnership deed (Ex. D-1). Paragraphs 7, 8, 9 and 10 of the partnership deed are material. They read thus:- "7. That party No. 1 shall make available and has actually made available to the firm the half portion of the shop in which the business of the firm shall be carried on situated at Loha Bazar Road, Bhopal, and which said shop is in his occupation as a tenant paying a monthly rent of Rs. 60 to Shri Praful Chandra. The first party shall not be entitled to charge any rent from the firm for the half portion given to the firm. 8. That party No. 1 shall be in the possession of the whole premises and the key of the firm premises will be kept with party No. 1. 9. That on dissolution of the firm, the party No. 2 shall have no right or interest in the said premises and party No. 1 himself will continue to be the tenant of the landlord. 10. That the party No. 2 shall be a working partner and party No. 1 will be a supervising partner and the latter will not be bound to sit and work actually on the firm promises." It is quite clear from paragraph 8 that the tenant expressly retained possession of the entire premises with himself. The matter was not left open to doubt. It was further emphasised by saying that although party No. 2 was the working partner, the key of the firm premises would be kept with party No. 1. It is further made clear in paragraph 9 that on the dissolution of the firm also, party No. 2 would have no right or interest in the suit premises and that party No. 1 himself would continue to be the tenant. The word "tenant" is remarkable. That during the continuance of the firm, there would be no relationship of landlord and tenant between the defendant No. 1 and the firm inter se is stated in the last sentence of paragraph 7. Furthermore, that party No. 2 or the firm will not be in possession of the portion of the suit premises, in which the partnership firm would carry on business, is explicit from these words in paragraph 7:- "That party No. 1 shall make available and has actually made available to the firm the half portion of the shop..." The expression "make available" is significant and seems to have been studiously employed, so that no doubt may be entertained at any time that the defendant No. 1 parted with possession in any manner. And, this was emphatically and specifically stated in a separate paragraph, that is, paragraph 8. The relevance of paragraph 10 lies in the fact that it was not as if the working partner, that is, party No. 2 was to carry on the business exclusively without party No. 1 (defendant 1) to do anything with its working. He (defendant 1) was the supervising partner. On that basis, the contention of Shri Agrawal that all these terms were incorporated in the partnership deed merely with the object of avoiding the effect of section 12 (1) (b) of the M. P. Accommodation Control Act, must be rejected. There is nothing to show that the partnership was not genuine or that the terms aforesaid were sham or fictitious. From what I have said above, there can be no doubt that there was no relationship of landlord and tenant, or, to be more specific, of tenant and sub-tenant, between defendant No. 1 and the partnership firm. It emerges clear from the aforesaid covenants contained in the partnership deed that the defendant No. 1 merely permitted the firm to use the premises "Lease" imports transfer of interest to enjoy the property and exclusive possession; while licence implies a permission to do some act, which without the permission, would be unlawful; licence is permissive right and is personal to the grantee. Their Lordships have laid down the following propositions in Associated Hotels of India v. R. N. Kapoor, AIR 1959 SC 1262: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property of which the legal possession continues with the owner, it is a licence; and (4) if under the document exclusive possession is given to a party, he is considered as a tenant, but the circumstances may be established which negative the intention to create a lease. Applying these dicta, the present case cannot be said to be of sub-lease. See also M. N. Clubwala v. Fida Hussain Saheb, AIR 1965 SC 610 and Naraindayal v. Deepchand, 1955 MBLJ 2076.
(3.) THE decision in Tansukdas v. Shambai, AIR 1954 Nag 160, is clearly distinguishable. In that case, the tenant gave exclusive possession to the firm in which he was a partner. In the present case, the covenants contained in the partnership deed clearly show that the appellant did not deliver exclusive possession, nor was there any such intention. One of the following three things had to be established before a decree for ejectment could be passed under section 12 (1) (b) of the Act: - (i) the tenant unlawfully sub-let; (ii) the tenant unlawfully assigned; or (iii) the tenant has parted with possession of the whole or any part of the accommodation. On the foregoing discussion, the case of sub-letting; must be rejected. Assignment is nobody's case.;

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