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Second Appeal from Original Order No. 403 of 1976 decided on 13th March 1978.

‑‑ S. 13 (2) (iv)‑Ejectment ‑ Subletting of premises‑.Mere fact that some persons other than tenant are controlling business in premises does not mean that they are subtenants ‑ Except partnership no other relationship existing between tenants and their colleagues‑Unless lessee parted with legal possession, subletting not created‑Allowing another person to use premises while lessee retains legal possession, held, not enough to create a sublease.

Gundalapalh Rangamannar Chesty v. Desu Rangish and others (1952) 1 M L J 652 : Karsandas Ramji v Karsanji Kalayanji and others A I R 1953 Sau. 112 and Motal Bai v. 4bdul 4ziz and others P L D 1968 Kar. 635 ref.

‑‑‑ S. 13 (2) (iv)‑Ejectment ‑ Subletting‑Allegation of increase in rent not denied‑Fact of increase in rent desired by landlady, held, stood proved.

‑‑ Ss. 13 & 15‑Ejectment‑Shop‑Requirement of landlady neither reasonable nor bona fide but aimed at increasing, rent of shop Application for ejectment dismissed.

Ch. Azlz Ahmad for Appellant.

Munir Ahmad Bhatti for Respondent.

Dates of hearing : 26th and 27th February, 1978.

This second appeal is directed against the order of the learned Additional District Judge Jhang, allowing the appeal and directing the ejectment of the appellants from ‑Shop No. 29 .situated at the Chawk Bazar Jhang City.

2. The facts as appearing front the record show that the shop in dis pute was required by the landlady, Mst. Mustajabi Begum for her personal use and reconstruction complaining that the original tenants Maqbool Ahmad and Haji Muhammad Shafi (now deceased) have sub let it to Nasir Mahmood anal Ghulam Qadir. The appellants dented the allegations and averred that the so‑called sub‑tenants were in fact partners with the tenants in their business. The Rent Controller found all the issues against the landlady and rejected her application, but in appeal the learned Additional District Judge tools a different view in respect of the pleas of subletting and reconstruction. He observed that in view of the evidence (which he did not refer to or discuss) on record, the appellants were proved to have sublet the shop in question. On the point of re‑construction the plan sanctioned to a daughter of the landlady was taken to be a valid requirement of law. The appeal was consequently accepted and the application for ejectment was allowed. Hence this appeal.

3. It is an admitted fact that Nasir Mahmood is the son of Hajl Muhammad Shafi. The learned Additional District Judge has also given weight to the fact that Nasir Mahmood being the son, was naturally to help his old father and would otherwise be deemed to be a tenant on the death of Haji Muhammad Shafi. The difference has arisen in respect of Ghulam Qadir about whom it was observed that there was suffi cient evidence against him with no cogent rebuttal. Since the learned Additional District Judge, being a Court of fact, has unfortunately failed to consider and discuss each piece of evidence, it has, therefore, become necessary for me to go into the entire evidence once again and form an

opinion independently, The respondent landlady has produced Abdul Rehman P. W. 2, Muhammad Hanif P. W: 3. Hafiz Zafar Ahmad Khan P.W. 4, Dr. Zafar Ahmad P.W. 5, Abdul Hameed P.W. 6 and the attorney P.W. 7. All of them say that Nasir Mahmood and Ghulam Qadir are run ning the business and that they are occupying the shop. One of the witnesses (P.W. 2) has also stated that they are paying Rs.150 rent to the tenants. It is, however, admitted that Haji Munammad Shafi has grown old and is not capable of‑ running the business himself. At least one witness (P.W. 5) has categorically conceded that Ghulam Qadir has been a partner with the other respondents in the business since a year back. R.W. 2 Abdullah Hassan, R.W. 3 Muhammad Hussain R.W. 4 Muhammad Nawaz have sufficiently proved that Ghulam Qadir and Nasir Mahmood are partners in the joint business. Ghulam Hussain has appeared as a witness and alleged that he was occupying the shop as a partner and that he was not paying any rent to the original tenants. Nasir Mahmood R.W. 6 also deposed about his status in business. The mere fact that the two persons are controlling the business does not mean that they are sub‑tenants. The burden heavily lay on the landlady to prove that there was an overt contract by the tenants to sublet to others on specified terms, but nothing has been said in this way, except one person who does not stand corroborated. It is Dr. Zafar Ahmad P.W. 5 who has to tell the truth that the persons afore. mentioned were partners with Haji Muhammad Shafi and Maqbool Ahmad tenants. This statement together with those made by the appellants' witnesses is sufficient to show that there was partnership and no other relation ship existed between the tenants and their colleagues. There cannot be a subletting, unless the lessee has parted with the legal possession. The mere fact, that another is allowed to use the premises while the lessee retains ;he legal possession is not. enough to create a sub‑lease. In Gudalapaill Rangamonnar Chetty v. Desu Rangish and others ((1952) 1 M L J 652) it is held that to create a lease or a sub‑lease a right to exclusive possession and enjoyment of the propeity should be conferred on another. Taking in other partners in his business by a lessee will not by itself constitute subletting and the lessee is not liable to eviction under the provisions of the Madras Act XXV of 1949. A point of a similar nature came in for determination in Karsaadas Ramji v. Karsanji Kalayanji and others (A I R 1953 Sau. 112) under the Bombay Rent Act, and it was decided that the Rent Act does not prevent a tenant, who has taken business premises on rent, from taking partners and carrying on a partner ship business. The restriction is against subletting. assignment or trans fer in, of the premises and there is no restriction against a tenant allowing the u3e of the premises to hi3 partners for carrying on the business. The question of sub‑lease has been discussed in Motal Bai v. Abdul Aziz and others (P L D 1868.Kar. 635). Transfer of a lease, as well as sublease, would mean transfer of right and interest of the lessee in immovable property, whereas licence is merely a competence to do something in or upon the property and a distinction between a "lease" and a "licence" is whether any right in immovable property itself a right in rem, has passed to the grantee. It was held that parting with possession and letting the firm into use as tenant of the demised premises, or creation of interest in immovable property by way of lease, should not be readily construed, particularly in cases of premises subject to Rent Restriction Laws if the facts can be held to be consistent with some other relationship or arrangement. On these tests, it cannot b ' held in the instant case that the tenants, by entering into partnership passed any interest in the shop in dispute to their partners, so as to make them co‑lessees of the shop with the tenants, nor can it be inferred from the evidence that the tenants parted with the legal possession of the shop.

4. On the question of re‑construction, the landlady was bound to show that the shop was required for this purpose reasonably and in good faith. She has stated in her application that she requires the shop for her own use as well as for re‑construction. It is argued that both the pleas are inconsistent and destructive of each other. I do not fully agree with this argument, but the question which requires serious consideration and which has escaped the notice of the learned Additional District Judge is that the plea to occupy the shop is based on mala fides so as to enhance the rent. This fact has invariably been alleged by Abdul Rehman R. W . 2, Muhammad Nawaz R.W. 4 and Nasir Mahmood R.W. 6, in their statements. Nasir Mahmood has categorically stated that the landlady demanded Rs.150 monthly rent, but she has not come in the witness‑box to deny it. Her attorney has, no doubt, denied the suggestion but he is not well‑conversant with the basic facts of case when put to him about the present rent. He replied that rent was Rs.90 per month, but at the same, time he expressed his ignorance about the exact rate. In the absence of any denial of the o allegation, the fact that the landlady wants to increase rent is proved. It is astonishing that the existence of good faith was denied and in that respect it was categorically alleged that the landlady wanted to enhance rent, but the learned Additional District Judge did not take pains to bring this assertion into consideration and say a word about it. I, therefore, hold as a question of fact that the requirement of the landlady is neither reasonable nor bona fide, but is aimed at increasing the rent of the shop in dispute.

5. In the circumstances of the case, the findings of the learned Additional District Judge cannot be sustained. The appeal is accepted and the application of the landlady for ejectment is dismissed with costs.

M. Y. H. Appeal accepted.

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