PETITIONER:
JAFFAR HUSSAIN EBRAHIM & ANR.
Vs.
RESPONDENT:
M/S. TAIYABALI DAWOODJI RANGWALA & ANR.
DATE OF JUDGMENT: 31/12/1996
BENCH:
KULDIP SINGH, S. SAGHIR AHMAD
ACT
HEADNOTE
JUDGMENT
JUDGMENT
Kuldip Singh, J.
This is a landlord‘s appeal. He filed a suit for eviction of the respondent-tenant from the premises in dispute, inter alia, on the ground or sub-letting. The trial count came to the conclusion that Mohsin Rangwalla-though the common partner-was not a real partner in the firm respondent 2-defendant 2 and as such respondent 1-defendant 1 had parted with the possession of the suit premises by putting respondent 2 in exclusive possession. In view of the said finding, the trial count decreed the suit. The appeal filed by the tenant was heard by a Bench of the small Cause Count. The appellate count on re-appreciation of the evidence on record, reversed the reasoning and the conclusions reached by the trial count and dismissed the suit. The High Count in its writ jurisdiction upheld the findings of the appellate count. This appeal, by the landlord, is directed against the judgment of the appellate court and that of the High Court. We have heard learned counsel for the parties. We see no ground to interfere with the findings reached by the appellate count and upheld by the High Court. The High Court approved the findings of the appellate court on the following reasoning:-
The orders of assessment were
already made in 1962, 1963 and
1964. Return forms were also filed
before the filing of the suit
itself. Therefore, it cannot be
said that they were manipulated or
the orders are based on some
material which could be termed as
an after thought. In my opinion
these assessment orders which
related to the period prior to the
filing of the suit were not only
relevant but were also germane for
deciding the controversy involved
in the suit. Further, the
defendants have also produced on
record the municipal licences of
1964. Application for this licence
was made before the filing of the
suit itself and from the bare
reading of these licences it is
clear that in terms it makes a
reference to the earlier decisions.
Defendants No.1 firm which was
dealing in paints in paints and
colours had import licence and such
licences numbering 39 were produced
before the court. They relate to
the period from 1962 to 1971. In
all these import licences the
address of the suit premises. The
defendants have also produced the
correspondence received at the
address of the suit-premises for
the years 1962 and onwards. The
correspondence of the foreign firm
for import of colour and paid was
also produced. The extract from the
account books of the firm were also
produced. The weight or
authenticity of these documents
could not have been lightly brushed
aside. ...................Therefore
taking a cumulative view of the
whole evidene in my opinion, the
appeal Bench was right in coming to
the conclusion that Mohsinbhai was
a common partner of both the firms.
All though he continued to be in
possession of the premises. From
the material placed on record viz.
import licences etc. coupled with
the oral evidence, it is further
clear that even the business of
defendant No.1 firm was being
carried out from the suit premises.
Admittedly, tenancy of defendant
No.1 was never terminated either
expressly or by implication. The
partnership which came into
existence on 30th September 1960
was a partnership in which Mohsin
was a partner. The suit premises
were never treated as assets of
defendant No.1 Mohsing was acting
for and on behalf of defendant No.1
firm. Lalbhai who was a partner of
the second defendant was managing
business of the second defendant
firm for and on behalf of the
partners, which included
Mohsinbhai. In substance therefore
defendant No.1 firm which was a
tenant was all through in
possession of the suit premises and
the plaintiff never parted with the
possession more so exclusively. In
this view of the matter, I have no
hesitation in confirming the
finding of fact recorded by the
appeal Bench of the Small Cause
Count."
We see no ground to interfere with the above quoted findings reached by the High Court. We agree with the reasoning and the conclusions reached therein. The appeal is dismissed. No costs.