VINAYKISHORE PUNAMCHAND MUNDHADA & ANRversusSHRI BHUMI KALPATARU & ORS.

                      [2010] 9 S.C.R. 963


   VINAYKISHORE PUNAMCHAND MUNDHADA & ANR.                         A
                                V.
              SHRI BHUMI KALPATARU & ORS.
               (Civil 'Appeal No. 6299 of 2010)

                       AUGUST 05, 2010
                                                                   B
    [B. SUDERSHAN REDDY AND SURINDER SINGH
                   NIJJAR, JJ.]

        Rent Control - C. P. & Berar Letting of Houses and Rent
  Control Order, 1949 - Clause 13(3)(iii) - Plea of landlords of C
  sub-letting by the original tenant-firm - Rent Controller upheld
  the plea of sub-tenancy and granted permission to landlords
  under clause. 13(3)(iii) of the Rent Control Order - Appellate
  authority reversed the findings of sub-tenancy - However, the
  review petition of landlords allowed and the order of the Rent D
  Controller restored - Writ petition - High Court set aside the
· order of reviewing authority - Held: The original tenant was
  no{ even a partner in the new firm in possession - It was thus
  not a case of any reconstitution of the existing firm by the
  tenant whereby the original tenant could be said to have E
  continued to be a dominant partner of such newly constituted
  firm ·and retained legal possession of the premises - Sub-
  letting and, parting away with possession by the tenant is
  inferable from the facts and circumstances brought on record
  - It was without the knowledge and consent and much less
                                                                    F
  the written permission of the landlords - The High Court erred
  in interfering with the just and reasonable orders passed by
  the reviewing authority - It practically substituted the findings
  for that of the authorities by re-appreciating the evidence
  available on record, which is impermissible in a proceeding G
. under Article -Q261227 of the Constitution - Constitution of
  India, 1950 - Article 226 and 227 - Writ petition - Scope of
  - High Court's power to interfere with order of reviewing
  authority.

                               963                                 H
    964      SUPREME COURT REPORTS             (2010) 9 S.C.R.


A       Words and Phrases - 'any person' (in clause 2(5) of the
    Rent Control Order) - Meaning of - C.P. & Berar Letting of
    Houses and Rent Control Order, 1949 - Clause 2(5).

       The appellants-landlords filed an application under
  clause 13(3)(i)(iii)(iv) and (vi) of the C.P. & Berar Letting
8
  of Houses and Rent Control Order, 1949 before the Rent
  Controller contending that the original tenant, a
  partnership firm, namely, 'Bhumi Kalpataru' had
  clandestinely sub-let the premises in question without
  their sanction to respondent no.1, namely, 'Shri Bhumi
C Kalpataru' of which respondent no.2 was the r.ianaging
  partner.

       The Rent Controller upheld the plea of sub-tenancy
  and granted permission to the appellants-landlords under
D clause 13(3)(iii) of the Relit Control Order. The appellate
  authority, however, reversed the findings of sub-tenancy.
  The appellants preferred a review petition under clause
  21 (2)(a) of the Rent Control Order. challenging the orders
  of the appellate authority. The reviewing authority
E allowed the review petition and restored the order of the
  Rent Controller granting permission as prayed for by the
  appellants. Thereafter the respondents filed a writ petition
  under Article 226/227 of the Constitution before the High
  Court challenging the order of the r!3viewing authority.
F The High Court allowed the writ petition.

          Allowing the appeal filed by the landlords, the Court

       HELD: 1.1. It is well settled that sub-tenancy or sub-
  letting comes into existence when the tenant voluntarily
G surrenders possession of the tenanted premises wholly
  or in part and puts another person in exclusive
  possession thereof without the knowledge of the
  landlord. In all such cases, invariably the landlord is kept

H
VINAYKISHORE PUNAMCHAND MUNDHADA & ANR. 965
            v. BHUMI KALPATARU
out of scene rather, such arrangement whereby and A
whereunder the possession is parted away by the tenant
is always clandestine and such arrangements take place
behind the back of the landlord. It is the actual physical
and exclusive possession of the newly inducted person,
instead of the tenant, which is material and it is that factor B
which reveals to the landlord that the tenant has put some
other person into possession of the tenanted property.
It would be impossible for the landlord to prove, by direct
evidence, the arrangement between the tenant and sub-
tenant. It would not be possible to establish by direct c
evidence as to whether the person inducted into
possession by the tenant had paid monetary
consideration to the tenant. Such arrangement which may
have been made secretly, cannot be proved by
affirmative evidence and in such circumstances, the
                                                               0
Court is required to draw its own inference upon the facts
of the case proved at the enquiry. Delivery of exclusive
possession by the tenant to a stranger without the prior
permission of the landlord is one dominant factor based
on which the court could infer as to whether the premises
were sub-let. [Para 15] [975-F-H; 976-A-D]                     E

    1.2. The expression 'any person' in clause 2(5) of the
Rent Control Order (which defines the 'tenant') means
any one lawfully inducted as a tenant into the premises
and by whom or on whose account rent is payable for           F
the premises. It may include a sub-tenant inducted as
such into possession with the· previous knowledge,
consent and written permission of the landlord. (Paras 11
and 12] [972-D]
                                                              G
     1.3. In the case on hand, it is an admitted fact that
none of the partners of 'Bhumi Kalpataru' are partners in
the firm 'Shri Bhumi Kalpataru', which clearly
demonstrates that it is not a case of any reconstitution
of the existing firm by the tenant whereby the original       H
    966    SUPREME COURT REPORTS               [2010] 9 S.C.R.

A   tenant continued to be a dominant partner of such newly
    constituted firm and retained legal possession of the
    premises. On the other hand, this is a clear case where
    the original tenant parted away with legal possession by
    inducting altogether a new firm into possession, of which
B   the original tenant is not even a partner, and such parting
    away with the possession was without the knowledge
    and consent and much less the written permisSion from
    the landlords. [Paras 9, 17] [970-H; 971-A-C; 976-H; 977-
    A-B]
c     '1.4. It was absolutely an internal arrangement
  between the original tenant and the newly inducted one
  about which the landlords were never put on notice. The
  mere acceptance of the rents from the newly constituted
  firm 'Shri Bhumi Kalpataru' on the facts and
D circumstances of the case by itself cannot lead to any
  inference that the landlords accepted the rent amounts
  knowing fully well as if they were accepting the same from
  the sub-tenants. The "landlord and tenant" relationship,
  in the circumstances of the case, cannot be inferred as
E the word 'Shri' was prefixed to the original tenanted firm
  'Bhumi Kalpataru'. The said firm 'Bhumi Kalpataru', in a
  clandestine manner became 'Shri Bhumi Kalpataru' by
  adding 'Shri' in an innocuous manner to 'Bhumi
  Kalpataru'. Once it is clearly established that none of the
F previous part~rs of the 'Bhumi Kalpataru' continued to
  be the partners of the newly constituted firm, it becomes
  very clear that 'Shri Bhumi Kalpataru' is altogether a
  different firm consisting of new partners who were
  inducted into possession by the previous tenant. The
G High Court practically substituted the findings for that of
  the authorities by re-appreciating the evidence available
  on record, which is impermissible in the proceedings
  under Article 226/227 of the Constitution of India. [Paras
  10, 18] [971-F-H; 972-A-B; 977-0]
H
VINAYKISHORE PUNAMCHAND MUNDHADA & ANR. 967
            v. BHUMI KALPATARU
    Bhairula/ Balmukund Verma Vs. Poonamchand                       A
Kasturchand Sancheti 1996 (2) Mh.L.J. 866 - held
inapplicable.

     Parvinder Singh Vs. Renu Gautam & Ors. (2004) 4 SCC
794 and Ram Saran Vs. Pyare Lal & Anr. (1996) 11 SCC 728            B
- referred to.

                      Case Law Reference:

    1996 (2) Mh.L.J. 866         held inapplicable Para 6

    (2004) 4 sec 794             referred to           Para 13      C
    (1996) 11 sec 728             referred to          Para 14

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6299 of 2010.
                                                                    D
    From the Judgment and order dated 20.09.2006 of the
High Court of Judicature at Bombay, Nagpur Bench in W.P. No. ·-
1206 of 1996.

    U.U. Lalit, B.M. Kasat and Dr. Kailash Chand for the            E
Appellants.

    Satyajit A. Desai, Shishir Deshpande, Amit Yadav,
Venkateswara Rao, Anumolu, Anagha S. Desai and Sujata
Kurdukar for the Respondents.
                                                                    F
    The Judgment of the Court was delivered by

    B. SUDERSHAN REDDY, J. 1. Leave granted.

      2. This appe al by special leave is directed against the
final judgment and order dated 20th September, 2006 passed          G
in Writ Petition No. 1206 of 1996 by the High Court of judicature
at Bombay, Nagpur Bench, Nagpur whereby the High Court set
aside the order dated 6.9.1995 passed by the reviewing
authority granting permission under clause 13(3)(iii) of the C.P.
                                                                    H
    968      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A & Berar Letting of Houses and Rent Control Order, 1949
  (hereinafter referred to as 'the Rent Control Order').

          3. The facts leading to filing of this appeal lie in a very
    narrow compass. The appellants are the landlords of the suit
    premises. Respondent No. 4, Madankumar Govardhandas
8
    Pasari was inducted as a teriant in the year 1974 who
    constituted a partnership firm under the name and style 'Bhumi
    Kalpataru' consisting of five partners and carried on business
    till 1991. The appellants filed an application under clause
C   13(3)(i)(iii)(iv) and (vi) of the Rent Control Order before the Rent
    Controller, Amravati against the original tenant Messrs Bhumi
    Kalpataru and its Managing Partner Madankumar
    Govardhandas Pasari, the respondent No.4 (since died) on the
    ground that Madankumar Govardhandas Pasari dissolved the
    firm and clandestinely sub-let the suit premises to respondent
D   No.2 Jagdish Champalal Mundhada who deceptively gave
    similar name to the partnership by prefixing the word 'Shri' and
    it was known as 'Shri Bhumi Kalpataru' resembling the firm to
    whom the premises was let out in the year 1974. The present
    occupiers of the suit premises being the sub-tenant, namely the
E   respondent No.1 firm 'Shri Bhumi Kalpataru', .its Managing
    Partner, respondent No.2 and other partners, respondents 5 to
    7 were duly impleaded as party respondents. The simple case
    set up by the appellants before the Rent Controller is that the
    original tenant firm 'Bhumi Kalpataru' had sub-let the suit
F   premises without the sanction of the landlords and the sub-
    tenants carried on the business under the name 'Shri Bhumi
    Kalpataru' by prefixing commonly used 'Shri' to the original
    tenant firm 'Bhumi Kalpataru'.

       4. The application was resisted by respondents No.1, 2,
G 5, 6 & 7 inter alia contending that they were recognized as the
  tenants of the suit premises by the landlords by accepting rent
  amount from 'Shri Bhumi Kalpataru'. It was also their case that
  there was disruption of relationship of landlord and tenant

H
  VINAYKISHORE PUNAMCHAND MUNDHADA & ANR. 969
   v. BHUMI KALPATARU [B. SUDERSHAN REDDY, J.]
, between the appellants and the original tenant. The original            A
  tenant firm 'Bhumi Kalpataru' and its Managing Partner,
  Madankumar Govardhandas Pasari though duly served, did not
  enter their appearance and chose to remain absent throughout.

       5. The Rent Controller upon appreciation of the material 8
  available on record passed the necessary orders upholding the
  plea of sub-tenancy and granted permission under clause
  13(3)(iii) of the Rent Control Order. The appellate authority,
  however, on the appeal filed by the respondents, reversed the
  findings of sub-tenancy. The appellants preferred Review~, C
  Petition under clause 21 (2)(a) of the Rent Control Order ·
  challenging the orders of the appellate authority and the said
  Review Petition was allowed restoring the order of the Rent
  Controller granting permission as prayed for by the appellants.

        6. Shri Bhumi Kalpataru and its Managing Partner Jagdish          D
  Champalal Mundhada filed Writ Petition No. 1206 of 1995
  under Article 226/227 of the Constitution of India before the
  High Court of judicature at Bombay, Nagpur Bench, Nagpur
  challenging the order of the reviewing authority. The other
  partners were impleaded as respondents. The High Court,                 E·
  relying on the decision in Bhairulal Balmukund Verma Vs.
  Poonamchand Kasturchand Sancheti 1 allowed the writ
  petition. Hence this appeal.

       7. Shri U.U. Lalit, learned senior counsel for the appellants
                                                                          F
  submitted that the High Court committed an error in interfering
  with the just and reasonable orders passed by the reviewing
  authority. It was submitted that the High Court committed a
  serious error in refusing to take into consideration the settled
  principles of law that sub-letting and parting with the possession
  by the tenant for consideration is to be inferred from the facts        G
  and circumstances brought on record and it is not the
  requirement in law that it is for the landlords to prove that parting
  of possession by the original tenant was for actual

  1.   1996 (2) MH. L.J. 866                                              H
    970          SUPREME COURT REPORTS                [2010] 9 S.C.R.


A consideration. Learned counsel for the respondent, Shri Satyajit
  A. Desai submitted that landlords having accepted the rents for
  a period of three years from the respondents without any demur,
  cannot be allowed to turn down and contend that the premises
  was sub-let by the original tenant. It was his submissio.n that
B relationship of landlord and tenant came into existence ever
  since the landlords accepted the rents from the respondents.

       8. Before adverting to the question as to whether the High
  Court rightly interfered with the orders of the reviewing authority,
  it may be just and necessary to notice the relevant provision of
C C.P. & Berar Letting of Houses and Rent Control Order, 1949
  which runs as under:

          13.      (1) No landlord shall, except with the previous
                   written permission of the Controller-
D
          (a)      give notice to a tenant determining the lease or
                   determine the lease If the lease is expressed to be
                   determinable at his option; or

          (b)
E
          (2)

          (3)

          (i)
F
          (ii)

          (iii)    that the tenant has without the written permission of
                   the landlord sub let the entire house (premises) or
                   any portion thereof;
G
          (iv)

      9. It may be of some importance to note that the original
  tenant did not join any issue with the landlords though he was
H impleaded as a party respondent to the proceedings. It is an
VINAYKISHORE PUNAMCHAND MUNDHADA & ANR. 971
 v. BHUMI KALPATARU [B. SUDERSHAN REDDY, J.]
admitted fact that none of the partners of 'Bhumi Kalpataru'          A
including respondent No.4 who constituted the firm 'Bhumi
Kalpataru' are the partners in the firm 'Shri Bhumi Kalpataru'.
It is not a case of reconstitution of the firm where the original
tenant continued to be a partner of such newly reconstituted
firm. It is clearly evident from the record and findings recorded     8
by the authorities that 'Shri Bhumi Kalpataru' consists of
altogether different individuals and the Managing Partner
thereof being Jagdish Champalal Mundhada. It is also an
admitted fact that there was no further agreement as such
between the appellants and the respondents recognizing 'Shri          C
Bhumi Kalpataru' and its partners as the tenants. In such view
of the matter, the authorities in clear and categorical terms found
that the respondents have been inducted into possession of the
premises by the original tenant without the required written
permission of the landlords. It is under those circumstances that     D
the reviewing authority came to the correct conclusion that the
original tenant had no right to transfer and part away with the
 possession of the premises to the respondents without the
 required written permission from the landlords. None of the
 respondents were the partners in the previous firm that was
 constituted by Madankumar Govardhandas Pasari known as               E
 'Bhumi Kalpataru'.

      10. It was absolutely an inte., .al arrangement between an
original tenant and newly inducted one about which the landlord
was never put on notice. The mere acceptance of the rents from        F
the newly constituted firm 'Shri Bhumi Kalpataru' on the facts
and circumstances in the present case by itself cannot lead to
any inference that the landlords accepted the rents knowing fully
well as if they were accepting the rents from the sub-tenants.
The "landlord and tenant" relationship in the circumstances of        G
this case cannot be inferred as the word 'Shri' was prefixed to
the original tenanted firm 'Bhumi Kalpataru': The said firm
'Bhumi Kalpataru', in a _clandestine manner became 'Shri
Bhumi Kalpataru' by adding 'Shri' in an innocuous manner to
'Bhumi Kalpataru'. Once it is clearly established that none of
                                                                      H
    972       SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   the previous partners of the 'Bhumi Kalpataru' continued to be
    the partners of the newly constituted firm, it becomes very clear
    that 'Shri Bhumi Kalpataru' is altogether a different firm
    consisting of new partners who were inducted into possession
    by the previous tenant.
B        11. That, clause 2(5) of the Rent Control Order defines the
    'tenant' as under:

          "'Tenant' means any person by whom or on whose account
          rent is payable for a premises and includes a sub-tenant
c         and a person continuing in possession after the term of
          his tenancy has expired".

        12. In our considered opinion, the expression 'any person'
    means any one lawfully inducted as a tenant into the premises
    and by whom or on whose account rent is payable for the
0
    premises. It may include a sub-tenant inducted as such into
    possession with the previous knowledge, consent and written
    permission of the landlord.

          13. This Court in Parvinder Singh vs. Renu Gautam &
E   Ors. 2held:

          "8. The rent control legislations which extend many a
          protection to the tenant, also provide for grounds of
          eviction. One such ground, most common in all the
          legislations, is sub-ietting or parting with possession of the
F
          tenancy premises by the tenant. Rent control laws usually
          protect the tenant so long as he may himself use th~
          premises but not his transferee inducted into possession
          of the premises, in breach of the contract or the law, which
          act is often done with the object of illegitimate profiteering
G
          or rack-renting. To defeat the provisions of law, a device
          is at times adopted by unscrupulous tenants and sub-
          tenants of bringing into existence a deed of partnership


H   2.   (2004) 4 sec 794.
VINAYKISHORE PUNAMCHAND MUNDHADA & ANR. 973
 v. BHUMI KALPATARU [B. SUDERSHAN REDDY, J.]
   which gives the relationship of tenant and sub-tenant an       A
   outward appearance of partnership while in effect what has
   come into existence is a sub-tenancy or parting with
   possession camouflaged under the cloak of partnership.
   Merely because a tenant has entered into a partnership
   he cannot necessarily be held to have sub-let the premises     B
   or parted with possession thereof in favour of his partners.
   If the tenant is actively associated with the partnership
   business and retains the use and control over the tenancy
   premises with him, maybe along with the partners, the
   tenant may not be said to have parted with possession.         c
   However, if the user and control of the tenancy premises
   has been parted with and deed of partnership has been
   drawn up as an indirect method of collecting the
   consideration for creation of sub-tenancy or for providing
   a cloak or cover to conceal a transaction not permitted by     D
   law, the court is not estopped from tearing the veil of
   partnership and finding out the real nature of transaction
   entered into between the tenant and the alleged sub-
   tenant.

   9. A person having secured a lease of premises for the         E
   purpose of his business may be in need of capital or
   finance or someone to assist him in his business and to
   achieve such like purpose he may enter into partnership
   with strangers. Quite often partnership is entered into
   between the members of any family as a part of tax             F
   planning. There is no stranger brought on the premises.
   So long as the premises remain in occupation of the tenant
   or in his control, a mere entering into partnership may not
   provide a ground for eviction by running into conflict with
   prohibition against sub-letting or parting with possession.    G
   This is a general statement of law which ought to be read
   in the light of the lease agreement and the law governing
   the tenancy. There are cases wherein the tenant sub-lets
   the premises or parts with possession in defiance of the
   terms of lease or the rent control legislation and in order    H
    974      SUPREME COURT REPORTS                   [2010] 9 S.C.R.

A         to save himself from the peril of eviction brings into
          existence, a deed of partnership between him and his sub-
          lessee to act as a cloak on the reality of the transaction.
          The existence of deed of partnership between the tenant
          and the allegad sub-tenant would not preclude the landlord
8         from bringing on record material and circumstances, by
          adducing evidence or by means of cross-examination,
          making out a case of sub-letting or parting with possession
          or interest in tenancy premises by the tenant in favour of a
          third person. The rule as to exclusion of oral by
c         documentary evidence governs the parties to the deed in
          writing. A stranger to the document is not bound by the
          terms of the document and is, therefore, not excluded from
          demonstrating the untrue or collusive nature of the
          document or the fraudulent or illegal purpose for which it
          was brought into being. An enquiry into reality of
D
          transaction is not excluded merely by availability of writing
          reciting the transaction. Tyagaraja Mudaliyar v.
          Vedathanni, AIR 1936 PC 70 : 63 IA 126 is an authority
          for the proposition that oral evidence in departure from the
          terms of a written deed is admissible to show that what is
E         mentioned in the deed was not the real transaction
          between the parties but it was something different. A lease
          of immovable property is transfer of a right to enjoy such
          property. Parting with possession or control over the
          tenancy premises by the tenant in favour of a third person
F         would amount to the tenant having "transferred his rights
          under the lease" within the meaning of Section 14(2)(ii)(a)
          of the Act".

       14. In Ram Saran Vs. Pyare Lal & Anr3. this Court
G observed that "by a unilateral action of the tenant of
  surrendering his right of tenancy in favour of a third party by
  delivering possession of the tenanted premises to the said third
  party, no new tenancy is created which may legally bind the

H   3.   (1996) 11 sec 728.
VINAYKISHORE PUNAMCHAND MUNDHADA & ANR. 975
 v. BHUMI KALPATARU [B. SUDERSHAN REDDY, J.]
landlord. By mere acceptance of rent for the tenanted premises A
tendered by the tenant in the name of the registered society,
neither a new tenancy nor a valid sub-tenancy in favour of the
said registered society has been created." It is said in clear and
categorical terms that "the Rent Act is a special· statute
governing and regulating tenancy and sub-tenancy. Such B
provisions in the special statute supersede the general law of
tenancy if the provisions of the special statute are incompatible
with the general law of tenancy". 'It is observed that "mere
knowledge of the landlord about occupation of the tenanted
premises by the said registered society and acceptance of rent   c
for the tenanted premises tendered by the tenant in the name
of the registered society, will not create a sub-tenancy unless
induction of a sub-tenant is made with the written consent of
the landlord. Even if the landlord has accepted payment of the
 rent for the disputed premises .... Such acceptance of rent will D
not constitute legal and valid sub-tenancy ...... Consequently,
 landlord will not be estopped from claiming eviction of
 unauthorized sub-tenant along with the tenant for indulging in
 inducting sub-tenant without lawful authority". (emphasis by us)

     15. We are not impressed by the submission made by the E'
learned counsel for the respondents that unless payment of
consideration was established as a fact between the tenant and
sub-tenant, the application under the provisions of the Rent
Control order filed by the landlord cannot be allowed. Is it
possible for any landlord to establish the actual agreement or F
understanding between the tenant and the person to whom the
possession of the premises is delivered? It is well settled that
sub-tenancy or sub-letting comes into existence when the
tenant voluntarily surrenders possession of the tenanted
premises wholly or in part and puts another person in exclusive G
possession thereof without the knowledge of the landlord. In all
such cases, invariably the landlord is kept out of scene rather,
such arrangement whereby and whereunder the possession is
parted away by the tenant is always clandestine and such
arrangements take place behind the back of the landlord. It is H
    976     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   the actual physical and exclusive possession of the newly
    inducted person, instead of the tenant, which is material and it
    is that factor which reveals to the landlord that the tenant has
    put some other person into possession of the tenanted property.
    It would be impossible for the landlord to prove, by direct
B   evidence, the arrangement between the tenant and sub-tenant.
    It would not be possible to establish by direct evidence as to
    whether the person inducted into possession by the tenant had
    paid monetary consideration to the tenant. Such arrangement
    which may have been made secretly, cannot be proved by
c   affirmative evidence and in such circumstances, the Court is
    required to draw its own inference upon the facts of the case
    proved at the enquiry. Delivery of exclusive possession by the
    tenant to a stranger to the landlord and without the prior
    permission of the landlord is one dominant factor based on
    which the Court could infer as to whether the premises was sub-
0
    let.

         16. What remains for our consideration is as to whether
    the High Court properly understood the ratio of the decision in
    Bhairulal (supra). In the said case, the High Court clearly held
E   that on the basis of the evidence of the landlord himself, it was
    not possible to say that the tenant has parted with legal
    possession of the portion of the premises in question to the
    alleged sub-tenant. On the other hand, it was apparent that
    though the alleged sub-tenant has been working on the sewing
F   machine located in the premises where the tenant himself has
    been carrying on his business in clothes in the disputed
    premises. The High Court in the said decision clearly held that
    mere use by other person is not parting with possession so long
    as tenant retains the legal possession himself. We fail to
G   appreciate as to how the ratio of the said judgment is
    applicable to the fact situation on hand.

        17. The case on hand clearly demonstrates that it is not a
    case of any reconstitution of the existing firm by the tenant
    whereby the original tenant continued to be a dominant partner
H
VINAYKISHORE PUNAMCHAND MUNDHADA & ANR. 977
 v. BHUMI KALPATARU [B. SUDERSHAN REDDY, J.]
of such newly constituted firm and retained legal possession of A
the premises. That would be a different situation where the
original tenant retains the legal possession of the premises as
the tenant without parting away the possession of the premises
or any part thereof to a stranger. On the other hand, this is a
clear case where the original tenant parted away with legal B
possession by inducting altogether a new firm into possession .
of which the original tenant is not even a partner and such
parting away with the possession was without the knowledge
and consent and much less the written permission from the
 landlords. Thus the ratio of Bhairula/ has no application to the c
case on hand.

     18. Before parting with the case we are constrained to
observe that the High Court practically substituted the findings
for that of the authorities by reappreciating the evidence
available on record, which is impermissible in a proceeding D
under Article 226/227 of the Constitution of India.

    19. For the aforesaid reasons, we find it difficult to sustain
the impugned judgment of the High Court. The same is
accordingly set aside.                                             E

     20. The appeal is allowed with costs.

8.8.8.                                        Appeal allowed.