JUDGEMENT
Prakash Krishna, J. -
(1.)SHOP nos. 20-A and 20-B situate at Suraj Kund Road, Meerut is the subject matter of the present writ petition. The petitioners Raj Pal Sharma and Ramesh Kumar Sharma, instituted SCC suit no. 99 of 1995 against Tilak Raj Mahajan and Kasturi Lal Mahajan, the respondent nos. 2 and 3 herein, on the pleas inter alia that Tilak Raj Mahajan was the tenant of the said shops on monthly rent of Rs. 80/- and is in arrears of rent from Ist September, 1994 who has sublet it without the consent and permission of the plaintiffs landlords, against the provisions of the Act, to Kasturi Lal Mahajan respondent no. 3 herein. The tenancy has been determined by a registered notice dated 13-3-1995, served on 3-4-1995. The reliefs for ejectment, recovery of Rs. 407.75 as arrears of rent, mesne profits pendente lite and future mesne profits etc. were claimed. The suit was contested by the defendants by filing separate written statements. It was pleaded by them that the shops in dispute were taken by Kasturi Lal Mahajan and not by Tilak Raj Mahajan wherein Kasturi Lal Mahajan carried on the business in the name and style of 'M/S Mahajan Trading Company' in partnership wherein both the defendants of the suit and Anil Kumar Mahajan and Arun Kumar Mahajan were the partners. The said shops originally belonged to Puneet Mehrotra who sold them in the year 1984 to the present plaintiffs. It was further pleaded by Kasturi Lal Mahajan, the alleged sub tenant, that in the year 1988, Tilak Raj Mahajan got the rent receipts issued in his individual name collusively with the landlords. It was further stated that the said firm was dissolved on 19-11-1994 and all the other partners surrendered their tenancy rights in favour of Kasturi Lal Mahajan and as such, Kasturi Lal Mahajan has become tenant of the disputed shop in his individual capacity. So far as the arrears of rent etc. is concerned, the amount having been deposited on the first date of hearing, i.e. 10-1-1996, no decree should be passed on the basis of default in payment of arrears of rent. The parties led evidence in support of their respective cases. Rent receipts dated 19-6-1965, 10-7-1967 and 6-11-1967 were produced by the plaintiffs to show that the shops in dispute were let out to Tilak Raj Mahajan. In contra, the defendants filed rent receipts dated 2-11-1979, 3-2-1981 and dissolution deed dated 19-11-1994. The trial court, under issue no. 1-'whether Tilak Raj Mahajan was the tenant of the disputed property and the tenancy was under M/S Mahajan Trading Company', held that Tilak Raj Mahajan took the property in question on rent in his individual capacity. The defendant no. 2 Kasturi Lal Mahajan had no connection with the said tenancy and there was no relationship of landlord and tenant in between the plaintiffs and defendant no.2. In other words, the defendant no. 1, who was the exclusive tenant of the property in dispute, has not deposited any amount in the suit and has sublet the property in dispute to defendant no.2. By judgment and decree dated 24-9-1998, the suit for ejectment, recovery of arrears of rent, damages and pendente lite and future mesne profits was decreed. Two revisions, being SCC revision nos. 479 of 1998 and 508 of 1998, were preferred by Kasturi Lal Mahajan and Tilak Raj Mahajan separately against the aforestated judgment and decree of the trial court. These revisions came up for consideration before the court below and have been allowed by the impugned judgment and decree dated 15-4-1999. The only point mooted in the present writ petition is whether the property in dispute was let out to Tilak Raj Mahajan or it was let out to Kasturi Lal Mahajan or in other words to M/S Mahajan Trading Co., a partnership firm. The other related issues are whether the court below could reappreciate the evidence in exercise of its revisional jurisdiction conferred on it by Section 25 of the Provincial Small Cause Courts Act and the inference drawn and findings recorded by the revisional court are perverse and against the weight of material on record. Learned counsel for the petitioners strenuously submits that the shops in question were let out to Tilak Raj Mahajan in the year 1964, in his individual capacity. Elaborating the arguments, he submits that there is clinching evidence on record to show that from the very inception of the tenancy, it was Tilak Raj Mahajan who was the tenant, as is evident from the counter foils of rent receipts. These rent receipts have been admitted in evidence without any objection by the other side. On a plain reading of these rent receipts, one and only one conclusion that the shops in dispute were let out to Tilak Raj Mahajan who used to pay the rent and rent receipts were issued in his name, is possible. Learned counsel for the contesting respondents, on the other hand, submits that the property in dispute was taken on rent by a partnership firm namely Mahajan Trading Co. through Kasturi Lal Mahajan. The firm was registered as a partnership firm with the Income Tax Department as is evident from the Income Tax Assessment orders relating to the assessment years 1964-65 and 1967-68. It has been found by the revisional court, and correctly so, that the rents were being paid from the firm's account, submits the learned counsel for the contesting respondents. The argument of the learned counsel for the contesting respondents is that it was the partnership firm which was the tenant of the property in dispute and if the said firm has been dissolved by means of dissolution deed dated 19-11-1994 and the tenancy right has been given to one of the partners exclusively, there is no question of subletting. Considered the respective submissions of the learned counsel for the parties and perused the record. The only question, as pointed out above, is whether it is a case of subletting by the chief tenant or the subject matter of writ petition was taken on rent by M/S Mahajan Trading Co. through Kasturi Lal Mahajan. To begin with, it has to be ascertained first, as to whether the view taken by the revisional court that it was the firm which was the tenant is based on relevant material on record or not. In reply to the notice given under Section 106 of Transfer of Property Act, Tilak Raj Mahajan in para-2 thereof has stated- ".....that the disputed shops were taken on rent by the brother of my client, Shri Kasturi Lal Mahajan, from the previous owner/landlord some time in 1964 and the business in partnership was started in the said shops under the name and style of M/S Mahajan Trading Company and the partnership was constituted including my client....." It shows that Kasturi Lal Mahajan, who subsequently started the business, took the shops on rent. It may be noticed that in the said reply it has not been stated anywhere that the shops in dispute were taken by and on behalf of M/S Mahajan Trading Co. It is one thing to say that after taking an accommodation on rent, a partnership business was commenced. It is altogether a different thing to say that the tenancy was in the name of a partnership firm. Kasturi Lal Mahajan in paragraph-1 of the written statement has tried to improve the case by making assertions that he took the disputed shops on rent for partnership business in the name of firm M/S Mahajan Trading Co. In the said partnership firm there were four partners namely Tilak Raj Mahajan, Kasturi Lal Mahajan, Anil Kumar Mahajan and Arun Kumar Mahajan. Further it has been stated that in the month of March 1988 Tilak Raj Mahajan got the rent receipts issued in his individual name in collusion with the landlords. The said firm has been dissolved on 19-11-1994 and all the other partners have surrendered their tenancy rights in his favour. Now coming to the uncontroverted documentary evidence filed by the petitioners in the form of rent receipts, it may be noted that in the column of name of tenant with parentage and address, the following (translated in English) has been mentioned: In the Receipt dated 19-6-1965:- "M/S Mahajan Trading Company Pro.Sri Tilak Raj Mahajan son of Sri Basdev Mahajan, Devi Nagar, Suraj Kund Road, Meerut City." In the rent receipt dated 10-7-1967, the following has been mentioned: "M/S Mahajan Trading Company Pro.Sri Tilak Raj Mahajan son of Sri Basdev Mahajan" Similarly, in the other rent receipt dated 6-11-1967, the following has been mentioned: "M/S Mahajan Trading Company Pro.Sri Tilak Raj Mahajan son of Sri Basdev Mahajan" The above receipts were produced by the plaintiffs petitioners. The following documents were produced by the defendants respondents wherein it has been mentioned as follows: "Mahajan Trading Company Swami Sri Tilak Raj Mahajan son of Sri Basdev Mahajan----------------- dated 2-11-1979." Similar averments have been made in other rent receipts dated 3-2-1981, 14-11-1984 and 28-2-1985 etc. These rent receipts are not disputed by either side. In none of these rent receipts name of Kasturi Lal Mahajan finds place. There is not a single piece of document on record to show that any rent receipt was ever issued in the name of Kasturi Lal Mahajan. These rent receipts do show this much that the rent was paid by Tilak Raj Mahajan, Proprietor of M/S Mahajan Trading Co. Mentioning of his parentage along with the word 'Proprietor' and 'Swami' (owner) supports the case of the plaintiffs that the shops in dispute were let out to Tilak Raj Mahajan. It was Tilak Raj Mahajan who was paying the rent of the disputed shops all through. In contra, the learned counsel for the contesting respondents submits that the word 'Proprietor' was loosely used and M/S Mahajan Trading Co. was a partnership firm as is evident from the Income Tax Assessment orders for the assessment years 1964-65 and 1967-68. Before considering the said assessment orders, by way of repetition, it may be mentioned that the case of the defendants in the written statement is that the shops in dispute were taken on rent by the firm which consisted of four partners namely Tilak Raj Mahajan, Kasturi Lal Mahajan, Anil Kumar Mahajan and Arun Kumar Mahajan. Now coming to the assessment order of the assessment year 1964-65, it may be noted that in the assessment order, Kasturi Lal Mahajan having 37% share, Tilak Raj Mahajan having 37% share and one Devi Dutt Mal having having 26% share were the partners in the said firm, vide assessment order dated 30-6-1964. The position is still worst in the assessment year 1967-68 wherein Kasturi Lal Mahajan having share of 26%, Tilak Raj Mahajan having share of 42% and Smt. Rama Gupta having share of 36% have been shown as partners in the said firm. Meaning thereby, the partnership continued to go on changing as is apparent from the Income Tax Assessment Orders. The defendants have withheld the partnership deed. There is variance in the pleadings of the defendants and the evidence. A plain reading of the written statements gives an idea that the said partnership firm which commenced in the year 1964 continued till its dissolution in the year 1994. From the Income Tax Assessment Orders, the position appears to be otherwise. This is not the end of matter. In the dissolution deed, which is the sheet anchor of the defendants, it is mentioned that the partnership which came into existence since 1-4-1979 was sought to be dissolved. Relevant portion from the dissolution deed is reproduced below:- " Whereas the parties to this Deed have been carrying on business in partnership syled M/S Mahajan Trading Co. Suraj Kund Road, Meerut since 1-4-79, and whereas fresh Deed of partnership has been drawn up on Ist April, 1992." In the said dissolution deed, it has been mentioned that Kasturi Lal Mahajan had expressed his desire to disassociate himself w.e.f. 19-11-1994 holds the tenancy rights of the shops in dispute, since prior to the dissolution of the partnership, shall continue to be tenant of the said shops and shall be at liberty to do any other business or businesses of his choice. The dissolution deed has been executed among Tilak Raj Mahajan, Kasturi Lal Mahajan, Anil Kumar Mahajan and Arun Kumar Mahajan. Now coming to the oral evidence of the defendants. In the oral deposition, Kasturi Lal Mahajan D.W. 1 states that in Mahajan Trading Co. Kasturi Lal Mahajan, Tilak Raj Mahajan and Bodh Raj were the partners when he took the shops in dispute on rent. The Income Tax Assessment Orders produced by him contradict the said statement as it shows that one Devi Dutt Mal having 26% share was the partner. He could not explain as to why the rent receipts were being issued in the name of Tilak Raj Mahajan son of Basdev Mahajan and why he never objected to it. On the face of rent receipts, which are not disputed by the defendants, the inference that it was Kasturi Lal Mahajan who was the tenant of the shops in dispute cannot be drawn. The revisional court has negated the plea of sub tenancy also on the ground that the rents were being paid from the firm's account. The relevant question to be decided is whether the shops in dispute were taken by Tilak Raj Mahajan and subsequently he carried on the business under the name and style of Mahajan Trading Co. If the tenancy commenced in the name of Tilak Raj Mahajan, passing of the possession of the tenanted accommodation by Tilak Raj Mahajan to Kasturi Lal Mahajan would certainly amount subletting as held by the Apex Court in Parvinder Singh Vs. Renu Gautam and others, (2004) SCC 794. In this case the Apex Court has held that a person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub-letting. Relevant extract is reproduced below:- "8. The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack-renting. 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 sub-let 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 sub-tenancy or for providing a cloak or cover to conceal a 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. 9- A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub-letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sub-lets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant 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 or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. Tyagaraja Mudaliyar V. Vedathanni AIR 1939 PC 70 is an authority for the proposition that oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different. A lease of immovable property is transfer of a right to enjoy such property. Parting with possession or control over the tenancy premises by the tenant in favour of a third person would amount to the tenant having "transferred his rights under the lease" within the meaning of Section 14(2)(ii)(a) of the Act." (Emphasis supplied). Even assuming for the sake of arguments that M/S Mahajan Trading Co. was a partnership firm, the fact remains that the tenancy stood in the name of Tilak Raj Mahajan who continued to be a partner till the date of its dissolution. As a result of dissolution deed, he has parted with the possession of the tenanted shops in favour of Kasturi Lal Mahajan. Admittedly, Kasturi Lal Mahajan is in possession of the disputed shops. This being so, a clear case of subletting by the defendant no. 1 in favour of defendant no. 2 has been made out. The revisional court was very much influenced from the fact that the rent was being paid by the partnership firm as is evident from the extract of the accounts of the firm namely Mahajan Trading Co. filed in evidence. In my considered view, the said evidence is of no value on the face of rent receipts. The statement made in the firm's accounts is in the nature of self serving statement. The petitioners, who are the landlords, are not concerned as to wherefrom the tenant has brought the rent. The rents of the disputed shops were paid continuously by Tilak Raj Mahajan whose name finds place in the rent receipts. Besides the above, the question as to whether Tilak Raj Mahajan or Kasturi Lal Mahajan was the tenant is essentially a question of fact which was decided by the trial court after taking into consideration the entire evidence on record. The trial court concluded that on the face of rent receipts, the entry in the firm's accounts regarding payment of rent or Income Tax Assessment Orders have no value. The landlords are concerned with the rent from the tenant and the rent receipts were admittedly issued in the name of Mahajan Trading Co. through Proprietor Tilak Raj Mahajan. The revisional court in exercise of its revisional jurisdiction could not have interfered with the said finding of fact. In my considered view, the evidence on record, as discussed above, supports the case of the petitioners and the view taken by the trial court is perfectly justified. The revisional court on superficial examination of the evidence, without going deep into the matter, has committed illegality in reversing the findings recored by the trial court, lightly. Learned counsel for the contesting respondents has placed strong reliance on Ravnak Ram Vs. Kishori Singh, 1991(1) ARC 331. In the said case, on the facts of that case, an inference of subletting was not drawn as the rent was paid on behalf of the firm and in the rent note it was mentioned clearly that the tenancy created thereunder was not personally to Mahesh Kumar but in favour of the firm M/S Jainco Motors of which Mahesh Kumar was one of the partners. The said case is distinguishable on facts. In the case on hand, there is no rent receipt in favour of Kasturi Lal Mahajan. On the contrary, the case is that Kasturi Lal Mahajan took the disputed shops on rent and he commenced the business of M/S Mahajan Trading Co. in the said shops. There is no iota of evidence that Kasturi Lal Mahajan took the disputed shops on rent. In view of the above discussions, I find sufficient force in the writ petition. The revisional court was not justified in holding that the plaintiffs have failed to establish subletting by the defendant no. 1 to defendant no.2. The findings recorded by the revisional court are perverse and against the material on record. In the result, the writ petition succeeds and is allowed. The judgment and decree of the revisional court dated 15-4-1999 passed in two connected SCC revision nos. 479 of 1998 and 508 of 1998 are hereby quashed and the judgment and decree of the trial court is restored back No order as to costs. Time to vacate the premises in dispute is granted upto 31-8-2009, provided the respondents no. 2 and 3 file an undertaking on affidavit before the trial court within a period of one month that they will vacate and hand over its vacant peaceful possession to the petitioners landlords without inducting any person therein. The respondents will also deposit/pay the entire arrears of rent for the period upto 31-8-2009 in advance before the trial court within the aforesaid period of one month. In case the respondents fail to vacate the premises in dispute on or before 31-8-2009, they will be liable to pay the damages at the rate of Rs. 5,000/- per month from May, 2009 till the date of actual delivery of possession to the landlords.