J. V. Gupta, J. - (1.) The landlord petitioners have filed this petition against the order of the Appellate Authority, Ludhiana, dated 18th Jan., 1974, whereby the older of the Rent Controller directing the ejectment of the tenants, has been set aside.
(2.) On 6th Jan., 1972, Hukam Chand and Smt. Hukmi Bai, landlord- petitioners, filed an application for eviction against at Jamna Dass and others, for their eviction from the premises in dispute, which is a shop situated at Samrala. It was alleged by them that by virtue of a rent-note dated 27th Dec., 1969, executed by Jamna Dass, the shop had been given on rent to him on a monthly rent of Rs. 30. The main ground for eviction was that Jamna Dass had sublet the shop to a firm styled as 'Jai Chand & Sons', Samrala, which was impleaded as a party. In the written statement filed by both the respondents jointly, it was pleaded that there were three partners of the film which had been ' constituted on 29th Oct., 1969 by the execution if a partnership deed. According to them, the partners in the firm were Jamna Dass, his brother Jai Chand and Subhash Chand, who is a son of Jai Chand. On the pleadings of the parties, the following issues were framed:- 1. Whether the respondent No. 1 has sublet the premises to respondent No. 2 ? 2. Whether the respondents are liable to be evicted on the grounds mentioned in the petition ? 3. Relief. 1-A. Whether there is any partnership between the respondents, as alleged ? The learned Rent Controller found issue No. 1 in favour of the landlords and ordered ejectment of the tenants. He gave the finding that the transaction about partnership was not genuine, and gave elaborate arguments for coming to this conclusion that the document had only been executed so as to avail of the shop which had been obtained on rent by Jamna Dass alone. On appeal, the said finding of subletting given by the Rent Controller has been reversed by the Appellate Authority and, consequently, he dismissed the application for ejectment. Feeling aggrieved against this order, the landlord-petitioners have come up in revision to this Court.
(3.) The learned counsel for the landlord-petitioners has vehemently contended that the learned Rent Controller came to the right conclusion in holding that Jamna Dass had nothing to do with the partnership business of firm M/s. Jai Chand and Sons and he has completely given over the possession of the shop in dispute to the other respondents without the written consent of the petitioners, and, thus, Jamna Dass had sublet the premises to Jai Chand and Sons. He also referred to the other findings given by the Rent Controller, particularly, where it has been observed, that "Jamna Dass is separately running a shop under the name and style-Messrs Janina Dass Puran Chand. It is surprising that Jamna Dass is given a profit but no document has been placed on the file to show that what amount he has contributed in the firm "Jai Chand and Sons." After going through the order of the Rent Controller and that of the Appellate Authority, I am of the opinion that the learned Appellate Authority has acted illegally and improperly in setting aside the finding arrived at by the Rent Controller. The order of the Appellate Authority is based on conjectures and surmises. The observations of the Appellate Authority, that "The facts that the tenant who enters into partnership agrees not to share any loss, his share of the profits is only one-fourth, he shifts to another place and starts his own separate business and the account books are to be maintained and bank account to be operated by his partner does not make the partnership a bogus one, are wholly wrong and this has resulted in reversing the finding of the Rent Controller. In case of sub-tenancy, if once it is proved that the tenant is not running the business on the premises in dispute and on the other hand, is doing a separate business, it goes a long way to show that the alleges partnership is a fake affair of course, if a tenant joins some body in his business as a partner in the tenanted premises, it may not amount to sub-letting, but if the tenant is no more in possession of the tenanted premises and starts his business separately in another premises, it cannot be said that since there exists a partnership deed, the premises cannot be held to be sublet by the tenant. In the statement of Jamna Dass, who has appeared as R.W. 7, it is clearly admitted, that "I have also my shop in the name of Jamna Dass Puran Chand and that is running. I am the sole owner of that shop." He has further admitted, that the Khata of profit and loss is made. I do not remember what profit I had got in the first year, second year and the last year, and I had entered that amount in my bahies and I have also not produced its copies. I cannot tell orally the amount of profit earned by me. "From this evidence on the record, it is clearly established that the alleged partnership between Jamna Dass, Jai Chand and Subhash Chander, is just a camouflage to retain the tenanted premises for running the business in the name of Jamna Dass and Sons From the facts of the present case, it is quite clear that Jamna Dass is not carrying on the business himself by taking the help of other partners. On the other hand, the alleged partners are running the whole business without the help of Jamna Dass. Under these circumstances, the finding of the Appellate Authority is set aside and that of the Rent Controller is restored.;