The landlord must prove sub-tenancy by showing that the tenant has parted with possession of the premises and that the alleged subtenant is in exclusive possession.

V.K.Jhanji, J.

1. This is tenants revision directed against the order of the Appellate Authority whereby the appeal of the landlord was allowed and the order of the Rent Controller dismissing the ejectment petition of the landlord, was set aside.

2. Ejectment of the tenants was sought on various grounds including that of sub-letting by Pala Ram to his brother Bhajan Lal. In the petition, it was claimed that the premises in dispute being residential are required by the landlord for the residence of his son as his son did not possess any other accommodation within the municipal limits. It was also pleaded that Pala Ram has sublet the premises to Bhajan Lal without the written consent of the landlord. Petitioners in their written statement denied that the premises in dispute are residential or the same were required by the landlord for the residence of his son. The ground of sub-letting was also denied.

3. The Rent Controller, of appreciation of the evidence on record, found that since the inception of the tenancy, premises were being used for the purpose of business and, therefore, cannot be got vacated on the ground of personal necessity. Otherwise also, the Rent Controller was of the view that the accommodation in possession of the landlord was sufficient and ejectment of tenants cannot be ordered on that score. The ground of subletting was also found against the landlord. Landlord preferred appeal before the Appellate Authority. In appeal, only the ground of subletting was challenged. The Appellate Authority allowed the appeal of the landlord primarily on the ground that the tenant, who had taken the plea of partnership between him and Bhajan Lal did not bring on record the Partnership Deed as well as books of account which could prove partnership and in absence of production of said documents, inference of sub tenancy can be drawn. Consequently, the order of ejectment was passed against the tenant. Petitioners have challenged the order of the Appellate Authority in this civil revision.

4. Mr. R.K. Battas, Advocate, learned counsel for the petitioners, made a reference to the statement of witnesses including that of AW-5 Anil Kumar son of the landlord as well as the statement of RW-1 Pala Ram, tenant and contended that the tenant in this case has not parted with the possession and, therefore, subletting is not proved.

5. On the other hand, Mr. M L. Sarin, Senior Advocate, learned counsel for the landlord contended that the tenants having taken the plea of partnership, it was upon them to prove the partnership and they having failed to prove the same, the order of ejectment was rightly passed by the Appellate Authority.

6. After hearing the learned counsel for the parties, I am of the view that the order of the Appellate Authority cannot be sustained and this civil revision deserves to succeed.

7. Landlord in his petition alleged that the premises in dispute were sub let to Bhajan Lal by his brother Pala Ram. This averment was specifically denied by the petitioners who in their written statement took up the plea that in the demised premises business is being carried on by them under the name and style of M/s. Pala Ram Bhim Sen of which Pala Ram, Bhajan Lal and other brothers, namely, Tilak Raj and Bhim Sen are the partners. It is true that, the landlord, in support of his case, examined as many as six witnesses, With regard to sub-letting only the landlord, when appeared as AW-6, stated that the premises have been sub-let by Pala Ram to Bhajan Lal. This part of the statement of the landlord cannot be accepted for the reason that his son Anil Kumar, when appeared as AW-5, admitted in his cross-examination, that since from the time of his attaining discretion petitioners have been working in the shop in dispute in which they are carrying on the business. In the light of the admission made by the son of the landlord, it cannot be said that Pala Ram has divested himself of the legal right to be in possession. Otherwise als