The landlord carries the burden to prove sub-letting; mere presence of outsiders does not automatically constitute sub-tenancy without credible evidence of possession transfer.

JUDGMENT

Heard on the question of admission

This second appeal under Section 100 of CPC has been filed by the appellant/plaintiff being aggrieved by the judgment and decree dated 18/05/2010 passed by Vth Additional District Judge, Indore, District Indore (M.P.) in RCA No.38/2009 whereby the judgment and decree dated 08/08/2006 passed by VIIIth Civil Judge Class-I, Indore, District Indore (M.P.) in RCSA 135-A/2004, was set aside.

Facts of the case, in short are as under :-

2. The plaintiff is a registered partnership firm and the owner of house No. 16/6, Chhoti Gwaltoli, Indore, where the disputed shop is located. Defendant No.1 is also a partnership firm and is a tenant of this shop. On 22th October 1985, the partner of Defendant No.1, Shammi Chopara, signed a registered rent-deed with the plaintiff. The agreed rent was ₹1,000 per month for the first three years and ₹1,150 per month thereafter, for a total period of five years. The agreement stated that the shop could not be sublet or transferred. Later, on 1st April 1991, defendant No.1 filed a case before the Rent Controlling Officer, Indore, for fixation of rent. The plaintiff’s partner, Purushottam, appeared in Court and it was alleged that a settlement was made to fix the rent at ₹1,500 per month. Relying on this assurance, Purushottam did not appear further and an ex-parte order was passed fixing the rent at ₹259 per month. The plaintiff then filed several appeals and the matter was remanded multiple times. The last appeal, No.483/2000 is still pending for adjudication before this High Court.

3. The plaintiff stated that defendant No.1 had not paid rent since 16^th March 1998, despite being served a legal notice through the plaintiff’s counsel. The plaintiff also stated that in the month of October 1998, it came to know that defendant No.1 had sublet portions of the shop to defendants No.2 and No.3 without his permission. It was also alleged that defendant No.1 had built a concrete wall dividing the shop into two parts and had not removed these changes even after receiving notice. The plaintiff claimed that these actions violated the tenancy agreement. The plaintiff further stated that rent would be claimed later after the Court- fees were paid and that possession of the disputed shop should be handed back to the plaintiff.

4. Defendant No.1, in its written statement denied the plaintiff’s claims and stated that the tenancy had started about four years before 1985 and that the rent-deed was made only for income-tax purposes. Defendant No.1 denied agreeing to pay rent of ₹1,500 per month or making any settlement with Purushottam Sharma. The defendant said it had filed the rent fixation case lawfully and that the rent of ₹259 per month fixed by the Rent Controlling Officer was valid. Defendant No.1 denied any arrears of rent and said it would pay whatever rent was finally fixed by the Court. The Defendant No.1 also denied subletting the premises to defendants No.2 and No.3 and contended that there exists no firm or persons. The defendant further stated that “Chopara Plex” was not a business name but a kind of rubber used in tyres.

5. Defendant No.1 further said that it had not made any permanent construction or divided the shop. The fittings and racks installed were only for its tyre business. The defendant also denied the plaintiff’s claim of personal need stating that the plain