A.N.Varma - (1.) THIS is a defendants' second appeal arising out of a suit for ejectment from a shop situate at P-Road, Sismau, Kanpur. Both the courts below have, on a concurrent finding that the defendants appellant has illegally sub-let the shop to defendants 2 and 3 without the consent of the plaintiff' and the permission of the District Magistrate, decreed the suit,
(2.) SHORTLY stated, the plaint case was that the plaintiff was the owner and landlord of the disputed shop which was let out to Ram Charan Chaube, the defendant no. 1, at a monthly rental of Rs. 15/-. Ram Charan Chaube, however, illegally sublet the shop to Mahesh Chandra Chaube, the defendant no. 2, his uncle, without the consent of the plaintiff or the permission of the District Magistrate whereupon the plaintiff determined the tenancy of the defendant no. 1 by means of a notice asking him to vacate the shop. On failure of the defendants to vacate the shop, the suit was brought for their ejectment. The defence of the defendant nos. 1 and 2 who filed a joint written statement was that the defendant no. 1 had not sublet the accommodation in suit. On the contrary, they were both running a partnership business under the name and style of Swadeshi Paint Stores since 1952 in the accommodation in suit. On the pleadings of the parties, relevant issues were framed by the trial court, the material issue being whether the defendant no. 1 has sublet the accommodation to the other defendants. The trial court, on a consideration of the evidence on record, came to the conclusion that the defendant no. 1 had illegally sublet the shop to the other defendants, without either the consent of the plaintiff or the permission of the District Magistrate. The substance of the finding of the trial court is that the partnership set up by defendant no. 1 was a mere camouflage and that in actuality it is Mahesh Chandra Chaube, the defendant no. 2 alone who was in exclusive occupation of the shop carrying on the business which is being run therein under the name and style of Swadeshi Paint Stores. The further finding is that the defendant no. 1 is not in any way concerned with the business being carried on in the shop by the defendant no. 2. The suit was accordingly decreed for ejectment as well as for recovery of Rs. 12.59.
(3.) ON appeal, the lower appellate court endorsed the findings of the trial court after a very careful and exhaustive consideration of the oral and documentary evidence led by the parties as well as the circumstances emerging therefrom. For the appellant Sri S. N. Agarwal submitted that on record there was a registered partnership deed which fully supported the claim of the appellant that the business which is being carried on in the shop is a partnership business of which the defendants 1 and 2 are the partners. The courts below have, therefore, erred in holding that there was any sub-letting by the defendant no. 1.;