Thomas & Anr Vs. M. Mohammed Tajuddin & Anr  INSC 1169 (19 September 1996)
Faizan Uddin, G.B. Pattanaik
O R D
Bench of three Judges of this Court by judgment dated May 26, 1989 while negativing
all the contentions raised by the appellant-tenant found merit in the
contention raised by the counsel that if the first appellant was in effective
control over the management of the business of the partnership to which he had
taken two other partners, it would amount that he had not sublet the premises
and that he would be "a tenant" within the meaning of sub-clause (a)
of Clause (ii) of sub-section (4) of Section 2 of the Tamil Nadu City
Protection Act, 1922.
(4) of Section 2 defines the term "tenant" in relation to any land.
Clause (i) thereof runs as follows:-(i) means a person liable to pay rent in
respect of such land, under a tenancy agreement express or implied'.
(a) of clause (ii) of sub-section (4) of Section 2 of the said Act runs as follows:
any such person as is referred is in sub-clause (i) who continues in possession
of the land after the determination of the tenancy agreement." The
relevant part of sub-clause (b) of the said clause runs as follows:
any person who was a tenant in respect of such land under a tenancy agreement
to which this Act is applicable under sub-section (3) of Section 1 and who or
any of his predecessors in interest had erected any building on such land and
who continues in actual physical possession of such land and building. notwithstanding
Since there is no evidence on this issue this Court thought that a finding Was
required to be given by the High Court and if required, the matter may be sent
to the trial Court for recording the evidence for submission thereof to the
High Court. In furtherance thereof, the High Court remitted the matter to the
trial Court for recording further evidence afresh which was adduced.
consideration of the evidence, the High Court noted that in paragraph 8 of the
plaint it is stated that the business of the first defendant was converted into
a partnership in the name and style of "P.A. Thomas and Co." taking
the second defendant who was looking after the business and another as not
specifically denied. The averment that the second defendant was looking after
the business was not specifically denied in the written statement. Therefore,
no issue was raised in that behalf.
first defendant was not continuing to have effective control over the business
even after its conversion into a partnership firm. The High Court pointed out
that though the partnership deed was filed in this Court in the appeal, the
same was not produced either in the trial Court; nor was it produced in the
High Court. The first defendant did not choose to examine himself as a witness
after remand. Only the second defendant who was examined as DW-1, has
reiterated his evidence given on earlier occasion. The first defendant was
doing business only upto 1970 in the suit property and thereafter he never turned
up. On the other hand, the business Was being run in the suit property
exclusively by the second defendant. It was also noted by the High Court that
the first defendant was doing business in Mundakkayam as pointed out in
paragraph 5 of the judgment. The High Court has recorded the finding that after
remand, DW-1 4 admitted that his father, the first defendant, was living in Mundakkayam,
Kerala State and he as his son was doing the business in the suit property at Cumbum.
The evidence of DW-2 is also to the same effect and he claimed that it was he
who remitted the rent by money orders to the plaintiffs and later deposited the
rent in the Court. After considering the entire evidence on record and drawing
an adverse inference against the first defendant for his failure to get himself
examined as a witness, though opportunity was given to him, a finding was
recorded by the High Court that the first defendant was not in exclusive
control of the business. On the other hand, the second defendant was doing the business
in the premises after converting it into partnership firm. This being the
finding of fact, we do not think that there is any question of law is involved.
view of the definition of "tenant" and in view of the fact that the
first defendant to whom the open land was let out, had convicted Individual
business into a partnership business and was not having any control over the
proper or the business it can be sad sub-let the property leased out to the
first defendant, to the partnership firm end thereby, contravened the condition
of the ejectment.
he became liable for ejectment. The decree of ejectment granted by the trial
Court and affirmed by the High Court was thereby not vitiated by any error of
law warranting interference.
appeal is accordingly dismissed. No costs.