Sub-letting requires proof of parting with possession and consideration. A genuine partnership agreement may negate sub-letting, but its genuineness must be established. Impairment of value and utility includes damage to the building caused by alterations.

V.K.Jhanji, J.

1. The ejectment of the tenant was sought on the grounds;

(i) for non-payment of rent with effect from 16.7.1982;

(ii) for sub-letting to one Harish Chander; and

(iii) for impairing the value and utility of the building.

On contest by the tenant, the Rent Controller ordered ejectment of the tenant on the ground of sub-letting and also on the ground that the tenant has committed such acts as are likely to materially impair the value and utility of the premises. In appeal by the tenant, the Appellate Authority has affirmed the order of the Rent Controller. Hence, the present revision.

2. It has been contended by the learned counsel for the petitioner that the premises were taken on rent by Smt. Darshana Devi on 13.10.1968 and since then Harish Chander, the alleged sub-tenant is managing the business in the premises on her behalf and, therefore, the authorities below are not justified in finding that the premises have been sub-let by Darshana Devi to Harish Chander. He contended that partnership entered into between, Darshana Devi and Harish Chander on 1.4.1982 is real and genuine. In regard to the ground that the tenant has impaired the value and utility of the premises, counsel contended that making an opening in the front wall is neither material structural alteration nor it would come within the mischief of Section 3(2)(iii) of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act). In answer to these submission, Mr. J.K. Sibal, Senior Advocate, counsel for the respondent submitted that Harish Chander is in exclusive possession of the premises and the premises have been sub-let to him by Darshana Devi. In regard to the second ground that damage has been caused to the building by making an opening in the front wall, he submitted that there being no infirmity in the finding of the authorities below, no interference is called for by this Court.

3. So far as the exclusive possession of the premises is concerned, the authorities below, on appreciation of evidence brought on record, have come to the conclusion that Harish Chander is in exclusive possession of the shop. In order to prove that possession of Harish Chander is in his capacity as a partner, tenant has produced Exhibit R-2, Partnership Deed dated 1.4.1982. Counsel for the tenant has contended that to prove sub-letting, it is necessary to prove that by delivering possession to any other person, tenant has divested himself not only of physical possession but also right to possess the premises. In this regard, he has made reference to Clause 10 of the Partnership Deed which provides that in the event of dissolution of partnership, premises in dispute would go to Darshana Devi and Harish Chander shall have no right or claim on it. Counsel contend that so long as tenant has retained the right to come into possession of the premises, there is no parting of possession in terms of clause (ii)(a) of Sub-section 2 of Section 13 of the Act. In support of his argument, he cited (i) Vir Bhan Aggarwal v. Kunj Lal and Ors., 1978(2) R.L.R. 436; (ii) Jagan Nath (Deceased) through L.Rs v. Chander Bhan and Ors., 1988(2) R.L.R. 169; and (iii) Han Narain and Anr. v. Bela Devi, 1993(2) R.L.R. 788.

4. There is no dispute about the legal proposition enunciated in the judgments cited by the counsel for the petitioners. It is true that Clause 10 of the Partnership Deed provides that in the event of dissolution of partnership, the premises would go to tenant Darshana Devi but for applying this principle, it has to be established on record that the partnership set up by the tenant is a genuine one. If the partnership is not genuine and is merely a camouflage to conceal the real transaction of sub-letting, then it would be a clear case of sub-letting. In the present case, for proving the partnership, only the Partnership Deed has been produced. Tenant has not produced any other evidence either in the shape of account books or the record of Income-tax a