Supreme Court of India
MADAN MOHAN SINGHversusVED PRAKASH ARYA
- Citation
- 2021 INSC 155
- Decided
- 5 March 2021
- Disposal
- Appeal(s) allowed
- Bench
- ASHOK BHUSHAN
Holding
The respondent was not a tenant but a servant/employee, and the Chief Administrator’s decision under clause 12 is binding, entitling the appellant to possession of the booth.
Summary
The appellant, Madan Mohan Singh, was allotted a market booth in 1972 with a clause prohibiting sub‑letting and transfer of rights. He later entered into a partnership with Ved Prakash Arya in 1976, which was later dissolved, after which Arya worked as an employee. Dispute arose when Arya claimed he was a tenant paying rent, while the appellant asserted Arya was merely a servant and sought possession of the booth. The trial court held Arya to be a tenant despite lack of rent receipts, but the First Appellate Court reversed, finding no evidence of tenancy and relying on the Chief Administrator’s finding that Arya was a servant, which was binding under clause 12 of the allotment letter. The High Court later set aside the First Appellate Court’s decision, but the Supreme Court reinstated it, emphasizing that without documentary proof of rent and given the binding decision of the Chief Administrator, no landlord‑tenant relationship existed. Consequently, the Supreme Court ordered that the appellant be restored to immediate possession of the booth and allowed the appeals.
Issues considered
- Whether the respondent was a tenant under a landlord‑tenant relationship despite the absence of rent receipts and documentary proof.
- Whether the decision of the Chief Administrator, as mandated by clause 12 of the allotment letter, is binding and precludes the respondent’s claim of sub‑letting.
- Whether the partnership deed can be treated as a sham to evade the prohibition on sub‑letting.
- Whether the trial court’s finding of tenancy based on surmise and conjecture was correct.
Legislation cited
Subjects
tenancylandlord-tenant relationshipsublettingpartnership deedevictionpublic premises actchief administratorleaseunauthorised occupantsmandatory injunction
Judgment
1060 [2021]REPORTS
SUPREME COURT 2 S.C.R. 1060 [2021] 2 S.C.R.
A MADAN MOHAN SINGH
v.
VED PRAKASH ARYA
(Civil Appeal Nos. 814-815 of 2021)
B MARCH 05, 2021
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
Eviction of unauthorised occupants – Appellant was allotted
a booth – The allotment letter specifically provided that appellant
had no right to transfer his rights directly or indirectly and was
C
also restrained from subletting the booth – Appellant entered into a
partnership deed dated 18.12.1976 with the respondent for carrying
out the business of cycle repairing – However, later partnership
was dissolved and respondent became an employee of the appellant
in the booth – Dispute arose between the appellant and the
D respondent – Appellant sought possession of the booth – Respondent
took the defence that he was the tenant of the premises which was
let out to him in 18.12.1976 – The Chief Administrator in its order
dated 04.03.1986 had concluded that the respondent was a servant
of the hirer/appellant – Held: The present is not a case where
respondent claimed any rent agreement – There was no rent receipt
E
filed by the respondent in support of his claim of tenancy – When
there is no evidence of taking premises on rent and it is admitted by
respondent that he had not maintained any record of accounts of
payment of rent, there is no base for holding that relationship of
landlord and tenant is proved – Thus, respondent had failed to prove
F any documents pertaining to tenancy – One more fact to be noticed
is that the defendant claimed his tenancy with effect from 18.12.1976
– On 18.12.1976, admittedly partnership deed was signed both by
the plaintiff and defendant which was before the Court – When the
parties signed a document and entered into a partnership deed,
they cannot wish away the consequences which flow from the signing
G
of deed – The appellant having categorically denied the tenanacy
and there being no evidence with regard to the tenancy, there is no
doubt in concluding that respondent was not a tenant of the premises
– Clause 12 of the Allotment Letter prohibited the hirer from subletting
the premises or any part thereof and decision of the Chief
H Administrator was stated to be final in case of dispute – The finding
1060
MADAN MOHAN SINGH v. VED PRAKASH ARYA 1061
of the Chief Administrator dated 04.03.1986 cannot be ignored – A
Therefore, the Estate Officer directed to put the appellant immediately
in possession of the premises of Booth.
Allowing the appeals, the Court
HELD: 1. The categorical finding recorded by the trial court
is that the respondent-defendant failed to prove any documents B
pertaining to the tenancy. The tenancy is a relationship which is
created between two parties. The agreement of tenancy can be
both by writing or oral. Even if there is oral agreement of tenancy,
the Court has to look into the circumstances and intention of the
parties and other material to conclude as to whether there was C
any tenancy or not. The present is not a case where defendant
claimed any rent agreement. The defendant has come up with a
case that he is paying rent at the rate of Rs.450/- per month.
Defendant in his written statement has stated that appellant-
plaintiff has never issued any rent receipt. Thus, present is not a
case where there was any rent receipt filed by the defendant in D
support of his claim of tenancy. [Para 17][1070-A-C]
2. When there is no evidence of taking premises on rent
and it is admitted by DW-2/respondent that he had not maintained
any record of accounts of payment of rent, there is no base for
holding that relationship of landlord and tenant is proved. The E
trial court itself has held that defendant had failed to prove any
documents pertaining to tenancy. The First Appellate Court, thus,
has rightly come to the conclusion that findings of the trial court
that the respondent-defendant is a tenant is based on the surmises
and conjectures. [Para 19][1070-G-H] F
3. One more fact to be noticed is that the defendant claimed
his tenancy with effect from 18.12.1976. On 18.12.1976, admittedly
partnership deed was signed both by the plaintiff and defendant
which was before the Court. The defendant had not denied the
execution of partnership deed but he wanted to wish-away the G
partnership deed saying that it was a sham document to save the
hirer from rigours of clause 12 of the Allotment Order. When the
parties signed a document and entered into a partnership deed,
they cannot wish away the consequences which flow from the
H
1062 SUPREME COURT REPORTS [2021] 2 S.C.R.
A signing of deed. The plaintiff having categorically denied the
tenanacy and there being no evidence with regard to the tenancy,
there is no error in the judgment of the First Appellate Court
that defendant was not a tenant of the premises. [Para 20][1071-
A-C]
B 4. When Clause 12 of the Allotment Letter as noted above
prohibits the hirer from subletting the premises or any part
thereof, it is the decision of the Chief Administrator which shall
be binding on the parties. The relevant portion of Clause 12 in
this regard is “You will not sublet the premises or any part thereof.
If there is any dispute as to whether the premises have been
C sublet or not the decision of the Chief Administrator, Chandigarh,
on the point shall be binding on the parties”. As noted, Chief
Administrator in its order dated 04.03.1986 which was passed in
the appeal filed by the defendant himself, has concluded that the
defendant (respondent herein) was a servant of the hirer. The
D said decision by clause 12 is final between the parties and it is
not open for the defendant to plead contrary to the above. Both
the trial court and the High Court have erred in not taking in
consideration Clause 12 and finding of the Chief Administrator
in its order dated 04.03.1986. The finding of the Chief
Administrator dated 04.03.1986 which was passed after the order
E of the Estate Officer cannot be wished away by the defendant nor
can be ignored. [Para 21][1071-D-G]
C.M. Beena and Another v. P.N. Ramachandra Rao,
2004 (3) SCC 595 : [2004] 3 SCR 306 – referred to.
F Case Law Reference
[2004] 3 SCR 306 referred to para 18
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 814-
815 of 2021
From the Judgment and Order dated 06.12.2018 of the High Court
G
of Punjab and Haryana at Chandigarh in RSA No. 35 of 1997 and RSA
No. 2610 of 2002.
P.S. Patwalia, Sr. Adv., Tushar Bakshi, Adv. for the Appellant.
H
MADAN MOHAN SINGH v. VED PRAKASH ARYA 1063
Manoj Swarup, Sr. Adv., Mukul Kumar, Adv. for the Respondent. A
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. These appeals have been filed by the appellant challenging the
B
judgment of the High Court of Punjab and Haryana dated 06.12.2018 by
which Regular Second Appeal No.35 of 1997 filed by the respondent,
the defendant in suit, has been allowed, and the Regular Second Appeal
No.2610 of 2002 filed by the appellant has been dismissed and the suits
filed by the plaintiff-appellant have been dismissed.
3. Brief facts of the case which are necessary to be noted are: C
The appellant due to surrender of a temporary stall at Nehru Market
was allotted Booth No.186 in Sector 35-D, Chandigarh vide Allotment
Letter dated 20.06.1972 issued by the Estate Officer, Chandigarh
Administration. The allotment specifically provided that appellant-plaintiff
has no right to transfer his rights directly or indirectly. The appellant was D
restrained from subletting the premises or any part thereof. The building
was leased out for cattle poultry feed and for no other purpose. The
appellant entered into a partnership deed dated 18.12.1976 with the
respondent, Ved Prakash for carrying out the business of cycle repairing
etc. in partnership at Booth No.186, Sector 35-D, Chandigarh. The
appellant’s case is that by notice dated 04.10.1979, the respondent E
dissolved the partnership and thereafter he became an employee of the
appellant in the Booth.
4. The Estate Officer, Chandigarh passed an order dated
09.09.1980/15.04.1982 terminating the hire-purchase agreement of the
Booth on the ground that the premises are being used in contravention F
of Allotment Letter dated 20.06.1972. The appellant filed an application
before the Chief Administrator, Union Territory, Chandigarh questioning
the order dated 15.04.1982 praying that order be declared illegal and
wrong. The respondent, Ved Prakash filed an application before the
Chief Administrator, in the proceedings claiming him to be occupier of
G
the premises, paying that he may also be made party to the proceedings.
By order dated 09.02.1984 passed under Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, the Estate Officer directed eviction
from Booth No.186. The appeal was filed by the respondent, Ved Prakash
before the Additional District Judge, Chandigarh. In the aforesaid appeal
H
1064 SUPREME COURT REPORTS [2021] 2 S.C.R.
A the appellant also appeared. The appeal was dismissed on 10.06.1985.
However, the Appellate Court observed that Booth belonged to the
appellant and the respondent, Ved Prakash was in possession as an
employee of the appellant.
5. The respondent, Ved Prakash has also filed Appeal No.21 of
B 1984 challenging the order dated 09.09.1980 of the Estate Offider,
Chandigarh issued on 15.04.1982 (cancelling the hire-purchase
agreement). The Chief Administrator, Chandigarh Administration decided
the aforesaid appeal on 13.03.1986 where the Chief Administrator has
also noticed that misuse of the premises has been stopped, hence, the
premises be restored to hirer-the appellant and the respondent-Ved
C Prakash was also held as servant of the hirer by the Chief Administrator.
The respondent also filed Civil Writ Petition No.3115 of 1985 challenging
the order of eviction under the Public Premises Act which was dismissed
as infructuous on 14.03.1986 by the High Court noticing that the order
of resumption has been revoked.
D 6. The appellant being unable to take possession of the premises,
he filed Civil Suit No.77 of 1986 impleading the respondent as sole
defendant. The appellant’s case in the suit was that possession of Booth
No.186 was given to the respondent in pursuance of partnership deed
dated 18.12.1976. It was pleaded that after restoration of the Booth by
Chief Administrator, Chandigarh dated 04.03.1986, the plaintiff-appellant
E became owner of the property and it was further pleaded that the
respondent after dissolution of the partnership has been allowed to use
the premises as an employee. By notice dated 17.02.1986 the services
of the respondent-defendant have been terminated and the defendant
was requested to handover the vacant possession of the premises to the
F plaintiff. However, the possession was never restored to the plaintiff till
date, the plaintiff prayed for direction of mandatory injunction against
the defendant directing the defendant to restore possession to the plaintiff
of Booth No.186, Sector 35-D, Chandigarh.
7. The defendant filed a written statement. In the written statement,
the defendant pleaded that he took the premises on rent from the plaintiff
G
on 18.12.1976 at a monthly rent of Rs.450/- per month. The execution
of partnership deed dated 18.12.1976 was admitted but it was claimed
as sham document. It was further stated in para 2 of the written
statement (reply on merits) that plaintiff has never issued any receipt for
the rent and he has been refusing the rent from October, 1982. The
H defendant claimed to be a tenant. The trial court vide its judgment dated
MADAN MOHAN SINGH v. VED PRAKASH ARYA 1065
[ASHOK BHUSHAN, J.]
29.02.1992 dismissed the suit. The trial court held the defendant to be a A
tenant notwithstanding the fact that defendant failed to prove any
documents pertaining to the tenancy. The execution of partnership deed
dated 18.12.1976 was accepted, however, the trial court observed that
the said partnership deed was executed only to avoid the prohibition in
hire purchase agreement.
B
8. Against the order of the trial court appeal was filed by the
appellant. The First Appellate Court vide its judgment dated 02.12.1996
allowed the appeal granted the decree of mandatory injunction to the
appellant-plaintiff. The First Appellate Court held that there was no
material to come to the conclusion that defendant was tenant. The findings
of the trial court on the question of tenancy was held to be based on C
surmises and conjectures. It was held that there was no presumption of
landlord and tenant. The First Appellate Court also noticed that the
respondent, Ved Prakash appeared as DW-2 and stated that he had
maintained accounts books in the business but there is no record regarding
payment to the appellant, accounts books were not produced in the Court. D
Against the judgment of the First Appellate Court, the Second Appeal
was filed by the defendant which was allowed by the High Court by
impugned judgment dated 06.12.2018. The High Court framed following
two questions:
‘(i) Whether the court while adjudicating upon the dispute must E
go to the route of the case and unearth the evil design by lifting
the veil?
(ii) Whether the first appellate court, before setting aside a
judgment passed by the learned trial court, is required to analyse
the reasons given by the learned trial court and after critical F
appraisal thereof give its own reasons while disagreeing or setting
aside the reasons given by the learned trial court?’
9. The High Court has held that the First Appellate Court wrongly
relied upon the order passed by the Chief Administrator. The High Court
further observed that the First Appellate Court also misread that before
G
the Chief Administrator the defendant had taken a stand that he was
merely a servant, which is against the record. The High Court has further
observed that the First Appellate Court has also drawn adverse inference
on account of the non-production of the accounts books by the defendant.
The High Court held that entire story put forth by the plaintiff does not
appeal to the reason. A Regular Second Appeal No.2610 of 2002 was H
1066 SUPREME COURT REPORTS [2021] 2 S.C.R.
A filed by the plaintif against the judgment refusing to grant the mandatory
injunction directing the defendant for not using the Booth for cycle
repairing. The appeal filed by the defendant was allowed setting aside
the decree of First Appellate Court. Aggrieved by the aforesaid judgments,
these appeals have been filed by the plaintiff-appellant.
B 10. There is no dispute between the parties that Booth No.186
was allotted to the plaintiff-appellant by order dated 20.06.1972. The
condition Nos.12, 13 and 19 which are relevant for the present case are
as follows:
“12. You will have no right to transfer your rights under this lease
directly or indirectly. You will not sublet the premises or any part
C
thereof. If there is any dispute as to whether the premises have
been sublet or not the decision of the Chief Administrator,
Chandigarh, on the point shall be binding on the parties, no
fragmentation of the building be permissible.
13. The building shall be used only for the purpose it is leased out
D cattle poultry feed and for no other purpose.
19. The undersigned shall have full rights, power and authority at
all times to do through his officers or servants all acts and things
which may be necessary or expedient for the purpose of enforcing
compliance with all or any of the terms conditions and reservations
E herein contained and to recover from you the cost of doing any
such act or thing.
11. It is also admitted that a partnership deed dated 18.12.1976
was executed both by the plaintiff and the defendant under which deed
it was decided and agreed mutually to carry out the business of cycle
F repairing etc. in Booth No.186. It is relevant to notice that the execution
of partnership deed was not disputed by the defendant, Ved Prakash but
his case was that he took premises on rent at the rate of Rs.450/- per
month on 18.12.1976. The partnership document was termed as sham
document by the defendant. In paragraph 2 of the plaint, the plaintiff has
made pleading, which was replied in para 2 of the written statement,
G which are as follows:
“Para 2 of the Plaint: That after the taking possession of the
said booth the plaintiff earlier started running business under the
name and style of M/s Prakash Cycle Store in partnership with
the defendant and partnership deed was duly executed between
H the parties on 18.12.1976. Copy of the partnership deed is attached.
MADAN MOHAN SINGH v. VED PRAKASH ARYA 1067
[ASHOK BHUSHAN, J.]
Para 2 of written statement: Para 2 of the plaint as stated is A
wrong and denied. It is stated that the defendant took the demised
Premises on rent from the plaintiff on the 18.12.1976 at a monthly
rent of Rs.450/- per month. The said partnership deed dated the
18.12.1976 was executed. It was a sham document executed only
to save the plaintiff from the rigours of clause 12 of the Allotment
B
Order dated 20.06.1976 in favour of the plaintiff, which lays down
that in case of sub-tenancy the booth may be resumed. In fact,
the execution of this partnership deed was one of the pre-conditions
laid down by the plaintiff for renting out the demised premises to
the defendant. Even since the 18.12.1976 the defendant has been
in exclusive possession as a tenant and has been paying rent at C
the rate of Rs.450/- per month. The plaintiff has never issued any
receipt for the rent received. The plaintiff has now been refusing
rent since October, 1982.
12. As noted above, the premises was resumed by the Estate
Officer by order dated 09.09.1980 which was issued on 15.04.1982 on D
the ground that premises is not being used for the purpose for which it
was granted but it was being used for cycle repairing. Against the order
dated 09.09.1980 the respondent himself filed an Appeal No.21 of 1984
where the plaintiff-appellant had also appeared and claimed that the
defendant is only a servant of the plaintiff. The Chief Administrator
allowed the appeal holding that misuse having stopped the allotment be E
restored to hirer, Madan Mohan Singh. The Chief Administrator also
after considering the arguments of the parties came to the conclusion
that Ved Prakash was a servant of the hirer. The relevant observations
of Chief Administrator are as follows:
“....At the outset the counsel for the appellant has stated that the F
misuse has been stopped and that the premises in question are
now being used for running a shop for the sale of poultry and
cattle feed etc. The representative of the Estate Officer has
admitted the factum of the removal of the misuse by the appellant.
Sh. Kaushal has argued that the appellant has no locus standi for G
filing this appeal because the appellant is merely a servant of the
hirer Sh.Madan Mohan Singh. In support of his contention he has
produced before me a copy of the judgment of the Additional
Distt. Judge, Chandigarh who dismissed the appeal of Shri Ved
Prakash holding the view that the appellant was in possession of
the said premises not as a tenant or licencee but only as an H
1068 SUPREME COURT REPORTS [2021] 2 S.C.R.
A employee. …… The consideration of argument put forward by
Sh. Kaushal and that of the evidence adduced before me by him
lead me to conclude that the appellant being a servant of the hirer
has no cause of action to agitate the impugned order. Leaving this
matter aside and adverting to the main issue involved in this case,
I find that the misuse which was the basis for the passing of the
B
impugned order has been removed and the booth is being used for
the purpose for which it was sold. I, therefore, do not find any
justification to deprive the hirer of this booth to hold back this
property. In this back ground the allotment of the booth is restored
to its hirer Sh. Madan Mohan Singh. Since the booth had been put
C to misuse the amount of forfeiture shall stand and should be paid
within thirty days reckonable from the date of issue of this order.
Announced in the presence of the parties.
Chandigarh Dated the, Chief Administrator”
D 4th March, 1986 Chandigarh Administration
Dated : 13.03.86.”
13. We may notice one more finding rendered by the Additional
District Judge in appeal filed by the respondent against the order passed
for eviction under the Public Premises (Eviction of Unauthorised
E Occupants) Act. The appeal was dismissed by the Additional District
Juge on 10.10.1985. However, in paragraph 4 the Additional District
Judge has made the following observation:
“4. I have heard and have perused the file. A perusal of the file
shows that the booth belonged to Shri Madan Mohan Singh. The
F said Madan Mohan Singh appeared before the Estate Officer
and produced the record to show that the appellant was in
possession of the premises as his employee. This position was
found to be true by the Estate Officer. Even thereafter a notice
was issued to Shri Ved Prakash which was served on him. In
appeal a copy of the original affidavit has been placed on the file
G
by the landlord to show that the appellant agreed to work on the
premises as an employee on salary of Rs.320/- P.M. In view of
the position it becomes clear that the appellant is not in possession
of the premises in his own right either as a tenant or a licencee.
Rather his possession is only as an employee.”
H
MADAN MOHAN SINGH v. VED PRAKASH ARYA 1069
[ASHOK BHUSHAN, J.]
14. We have noticed Clause 19 of the Allotment Order in which, A
it is the Estate Officer, Chandigarh Administration who has full rights,
power and authority for the purpose of enforcing compliance with all or
any of the terms, conditions of allotment dated 20.06.1972. It is further
relevant to note that Booth was resumed by the Estate Officer by order
dated 09.09.1980 (issued on 15.04.1982) on the ground of uses of the
B
premises not for cattle poultry feed but cycle/autorickshaws repairing.
The Chief Administrator in his judgment dated 13.03.1986, which order
was passed in appeal filed by the defendant against the resumption order,
has observed after hearing the argument of hirer that the respondent is
only a servant of the hirer. The above observation and finding of the
Chief Administrator cannot be wished-away by the defendant as C
irrelevant. The High Court while referring to the order of the Chief
Administrator has only observed that the Appellate Court has misread
that defendant had taken a stand that he was merely a servant, which is
against the record. When the Administrator has noted the case of the
parties and came to the conclusion that defendant was a servant of the
D
hirer, those findings cannot be said to be against the record. The specific
findings of the Chief Administrator are “The consideration of argument
put forward by Sh. Kaushal and that of the evidence adduced before me
by him lead me to conclude that the appellant being a servant of the hirer
has no cause of action to agitate the impugned order”. Further the Chief
Administrator has held that there is no justification to deprive the hirer of E
the Booth. In view of the order of Chief Administrator dated 13.03.1986,
the appellant-plaintiff was clearly entitled to the possession and user of
the Booth but when the possession was not handed over by the defendant
to the appellant, he had to file the suit for mandatory injunction.
15. The defence which was taken by the defendant before the F
trial court by filing written statement and by appearing in the evidence
was that he is a tenant of the premises which was let out to him on
18.12.1976 at the rate of Rs.450/- per month.
16. We may first notice the finding of the trial court by which trial
court held that defendant was tenant of the premises. The trial court G
framed the Issue No.4, “whether the defendant is a tenant” ? The trial
court while answering Issue No.4 recorded the following finding:
“Therefore, the defendant has to be held to be a tenant in respect
of the booth in question notwithstanding the fact that the defendant
failed to prove any documents pertaining to the tenancy. Therefore, H
1070 SUPREME COURT REPORTS [2021] 2 S.C.R.
A this issue is also decided in favour of the defendant and against
the plaintiff.”
17. The categorical finding recorded by the trial court is that the
defendant failed to prove any documents pertaining to the tenancy. The
tenancy is a relationship which is created between two parties. The
B agreement of tenancy can be both by writing or oral. Even if there is
oral agreement of tenancy, the Court has to look into the circumstances
and intention of the parties and other material to conclude as to whether
there was any tenancy or not. The present is not a case where defendant
claimed any rent agreement. The defendant has come up with a case
that he is paying rent at the rate of Rs.450/- per month. Defendant in his
C
written statement has stated that plaintiff has never issued any rent receipt.
Thus, present is not a case where there was any rent receipt filed by the
defendant in support of his claim of tenancy. The defendant himself
appeared as DW-2. In cross-examination following statement was made
by DW-2:
D
“No rent note was written in December, 1976 regarding booth in
question. I have no receipt in my possession with regard to payment
of rent. I maintain books of account in the regular course of business
with regard to the business being carried out in the shop. I cannot
produce the account books with regard to the business being done
E in the shop. I have not maintain any account with regard to
payment of rent to the plaintiff. I have sent the rent by money
order to the plaintiff, but the plaintiff never received any money
order and I cannot produce any receipt of the money order vide
which the plaintiff would have accepted the rent with regard to
F the premises.”
18. This court had laid down in C.M. Beena and another vs.
P.N. Ramachandra Rao, 2004 (3) SCC 595, that conduct of the parties
before and after the creation of relationship is relevant for finding out
their intention.
G 19. When there is no evidence of taking premises on rent and it is
admitted by DW-2 that he had not maintained any record of accounts of
payment of rent, there is no base for holding that relationship of landlord
and tenant is proved. The trial court itself has held that defendant had
failed to prove any documents pertaining to tenancy. The First Appellate
H Court, thus, has rightly come to the conclusion that findings of the trial
MADAN MOHAN SINGH v. VED PRAKASH ARYA 1071
[ASHOK BHUSHAN, J.]
court that the defendant is a tenant is based on the surmises and A
conjectures.
20. One more fact to be noticed is that the defendant claimed his
tenancy with effect from 18.12.1976. On 18.12.1976, admittedly
partnership deed was signed both by the plaintiff and defendant which
was before the Court. The defendant had not denied the execution of B
partnership deed but he wanted to wish-away the partnership deed saying
that it was a sham document to save the hirer from rigours of clause 12
of the Allotment Order. When the parties signed a document and entered
into a partnership deed, they cannot wish away the consequences which
flow from the signing of deed. The plaintiff having categorically denied C
the tenanacy and there being no evidence with regard to the tenancy,
we do not find any error in the judgment of the First Appellate Court that
defendant was not a tenant of the premises. We do not find any error in
the judgment of the First Appellate Court holding that defendant was not
a tenant of the premises.
D
21. When Clause 12 of the Allotment Letter as noted above
prohibits the hirer from subletting the premises or any part thereof, it is
the decision of the Chief Administrator which shall be binding on the
parties. The relevant portion of Clause 12 in this regard is “You will not
sublet the premises or any part thereof. If there is any dispute as to
whether the premises have been sublet or not the decision of the Chief E
Administrator, Chandigarh, on the point shall be binding on the parties”.
As noted above, Chief Administrator in its order dated 04.03.1986 which
was passed in the appeal filed by the defendant himself, has concluded
that the Ved Prakash-defendant (respondent herein) was a servant of
the hirer. The said decision by clause 12 is final between the parties and F
it is not open for the defendant to plead contrary to the above. Both the
trial court and the High Court have erred in not taking in consideration
Clause 12 and finding of the Chief Administrator in its order dated
04.03.1986. The finding of the Chief Administrator dated 04.03.1986
which was passed after the order of the Estate Officer cannot be wished
away by the defendant nor can be ignored while deciding the question G
as to whether the premises were sublet to the defendant or not.
22. We may also notice that the High Court while deciding the
Regular Second Appeal filed by the defendant has also decided Regular
Second Appeal filed by the appellant-plaintiff which arose from the Suit
No.77 of 1986 filed by the plaintiff seeking relief for permanent and H
1072 SUPREME COURT REPORTS [2021] 2 S.C.R.
A mandatory injunction, restraining the defendant from using the Booth
No.186 for cycle repairs. The Regular Scond Appeal No.2610 of 2002
filed by the plaintiff-appellant has also been dismissed. In view of our
decision that Suit No.77 of 1986 filed by the appellant deserved to be
decreed and had rightly been decreed by the First Appellate Court, the
judgment of the High Court in RSA No.2610 of 2002 is of no avail.
B
23. In view of the foregoing discussions, we allow these appeals
and restore the judgment of the First Appellate Court dated 02.12.1996.
The Estate Officer, Chandigarh Administration shall ensure that the
appellant is immediately put in possession of the premises of Booth
No.186. It shall be open for the appellant to take appropriate proceedings
C to recover the damages and mesne profit for the use of premises by the
defendant. The appeals are allowed with costs.
Ankit Gyan Appeals allowed.
D
E
F
G
H
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