1984 PLP 593 (MLD)

7. Since the concurrent findings are that no default had actually been proved and that the remission of rent by money order was not seriously challenged and that the mention of both the money orders receipts and coupons had been made in the written statement, are corroborative of the statement of respondent No.1, therefore, I am of the view that the findings of the two Courts below in respect of, there being no default which could justify ejectment, were justified and accordingly those judgments are upheld in this respect.

8. Mr. Sami Ahmed Tirmizy was however, more emphatic in respect of the question of subletting and he stressed that the tenancy was in favour of the two respondents whereas the respondent No.2 had gone away from the premises and had, therefore, parted with his share of possession to respondent No.1. He also submitted that the respondents had parted with the possession of the premises to one Musharraf and, therefore, the ejectment should have been granted.

9. Even in respect of subletting there is a concurrent finding of the two Courts below that there was no subletting and hence the same is binding. The Rent Controller after discussing the evidence of the appellant No.1 and respondent No.1 in this regard has come to the conclusion that there was no sufficient and good evidence on the side of the applicant /appellant to prove the facts under issue No.3 (subletting). Even the learned Additional District Judge in respect of this issue had observed that when the appellants do not know anything about alleged subletting how it can be presumed against the respondents.

10. Mr. Tirmizy however, submitted that there was admission of respondent No.1 that the respondent No.2 had let the premises to him and he is now all alone in the premises and that the receipts of rent were issued in the joint name of the two respondents. Mr. Tirmizy, therefore, submitted that the fact of going away of the respondent No.2 from the premises is admitted and hence the respondent No.2 has parted with the possession of the premises and, therefore, the respondent No.1 should now be presumed to be the sublettee or assignee in respect of the portion of the premises or the share of possession of respondent No.2. I do not think that Mr. Sami's submissions are correct. The respondent No.1 had denied that the respondent No.2 had left the premises in his exclusive possession and occupation by virtue of that 'Faisla' but stated that the respondent No.2 had gone away from the premises on his own accord and left the premises with him. The tenancy of the premises was admittedly in the name of the two brothers namely respondents Nos.1 and 2 and, therefore, both of them were in possession of the same and by merely walking out of respondent No.2 it cannot be claimed that it has been proved that there has been any sub-tenancy or subletting in respect of the premises or a portion of the premises by respondent No.2 in favour of the respondent No.1. In fact no such assignment or sub-tenancy has been proved. The respondent No.1 has not been asked a question that he has paid any consideration to the respondent No.2 and in consideration of that the respondent No.2 has gone away nor there is any suggestion that respondent No.1 is paying any rent to the respondent No.2. Nor still there is any assignment of the tenancy by respondent No.2 in favour of the respondent No.1. Merely the fact that out of two common tenants or joint tenants one tenant is not living in the premises will not be sufficient to presume that there has been an assignment of tenancy or the sub-tenancy has been created in respect of the whole of a part of the premises. In fact the two brothers were in possession of the whole and the entire premises, there had been no separate or distinct portions of the premises in their possession and hence the respondent No.1 is continuing to occupy the same premises of which he was in joint possession with his brother earlier. To my mind the findings of the two Courts below that there was no sub-tenancy was justified.

11. In respect of allegation about the sub-tenancy in favour of one Musharraf it is enough to state that Mr. Jamal Musharraf had asserted in cross-examination that main portion of the house had been let out to said Musharraf some time before March, 1976 but he had admitted that he could not say if the said sub-tenant was still occupying the said portion as sub-tenant. This being his statement, the sub-tenancy was not proved. Mr. Tirmizy relied upon P L D 1979 S C 815 where it was held that a firm can possess a personality different from persons constituting it. In that case the principal tenant had entered into arrangement of partnership with some other persons and had transferred the possession of the half portion of the shop exclusively to them and in those circumstances it was held that he had sublet the half of the premises to them. But in the present case before me the facts are quite different. There is no deed evidencing the transfer of possession by respondent No.2 to respondent No.1 and in fact the respondent No.1 is from the very inception one of the principal tenants in the premises and he has continued to be in possession of the whole premises all alone and, therefore, the cited ruling is not applicable to the present case.

12. The counsel for the appellant also relied upon P L D 1974 S C 351 where it was held that where a person holds leasehold rights in his own name but subsequently assigns them to a firm or a private limited company consisting of his family members then it cannot be said in those circumstances that no change has taken place in the status of tenant or that there was no case of subletting or assignment of lease-hold rights. The facts of the case before me are again distinct and distinguish able from the facts of the cited case and, therefore, the same is not applicable in the present circumstances as there is no proof of any subletting or assignment.

13. Mr. H.A. Rahmani, counsel for the respondent relied upon 1980 C L C 1558 where it was held that no inference can be drawn that Ghazanfar Ali had sublet the shop to his brother as there was no evidence that the appellants were paying any rent to Ghazanfar Ali. In the present case before me also there is no evidence or even an allegation that the respondent No.1 is paying any rent or consideration to respondent No.2 for having been put in exclusive possession of the disputed house.

14. In the case of Corporation of Bristol v. Westcott reported in Law Reports 1879 Chancery Division Vol. XII page 461 the circumstance had been that the partners have dissolved partnership, and agreed that the partnership property should be made over to B, and that the leasehold property should be assigned to him with the consent of the lessor, if such consent could be obtained, and it was mentioned in the dissolution deed as a fact that 'A' had given up sole possession of the leaseholds to 'B' and since the consent of the lessor had not been obtained and no assignment of the leasehold was executed, but 'B' from the time of the dissolution had remained in sole possession, it was held that there had been no breach of the covenant against the assignment or under letting or parting with the demised premises to any other person and that the proviso had not come into operation. It could be useful to reproduce the opinions of the three Judges of the Court of Appeal as well as the opinion of the Vic-Chancellor against whose judgment the appeal has been filed. Bacon, V . C . has held as under:

"The covenant must have a rational construction put upon it. This is a lease granted by the owner of a warehouse to two gentlemen who were partners. They agreed not to part with the possession to any person, and as each partner has full possession of the whole of the demised property, it cannot mean that, if one of the partners was smitten down by apoplexy so as not to be able actually to enter the premises, the lease should be forfeited. It cannot mean that if his commercial engagements should require his attendance in any other country he should not go away and leave his partner in sole actual possession. There has been no breach of the covenant not to assign. There has been no parting with the possession. For one partner to withdraw does not alter the legal rights of the lessor. The remaining partner was from the first in full possession, and he only continues so."

15. In the Court of Appeal Jessel; M.R. had held as under:

"Now we come to deal with the words 'part with the possession of the demised premises to any person or persons'. What do the words 'any person or persons' mean? Do they not mean 'any other person or persons'? Of course, if the demise had been to one person the words must have had that meaning, and the question is whether, where the demise is to several persons, the words have not the same meaning whether, in fact, what was intended was not this, that the lessees were not to let into possession any one not previously approved of as 'tenant by the lessor. Giving the words that meaning, you make the covenant sensible, and I think that is their fair meaning. Upon that construction what has occurred is not a breach of the covenant, and consequently I think that the decision of the Vice-Chancellor is correct." Brett, L.J. had held as under:

"I will not give any opinion upon the question whether an assign ment by one of the two lessees to the other would have been a breach of the covenant, for there has not been any such assignment, and the question before us turns only upon the words relating to parting with the possession of the demised property to any person. It seems to me upon the construction of this covenant that parting with possession to any person means to any person other than one of those two to whom possession was given by the original lease." Cotton, L.J. had held as under:

"I am of the same opinion. I agree that, although it is a question of forfeiture, we must construe the covenant fairly, ascertain its meaning without regard to forfeiture, and then see whether, upon that ascertained meaning, a forfeiture has been incurred. But when we look at the words of this covenant with regard to the circumstances of the case when it was entered into, I think its proper construction is that the lessees are not to give possession to any one who has not already been admitted as tenant, or approved as a tenant by the lessor."

16. Since no actual assignment of the premises by respondent No.2 has been proved in this case before me and the respondent No.1 has been in possession of the whole premises alongwith his brother, respondent No.2 from the very beginning and the respondent No.2 having gone away and the respondent No. l is continuing in the possession of the same premises, therefore, in these circumstances it cannot be said that there has been any assignment or subletting of tenancy and this second appeal is, therefore, dismissed. These are the reasons of the short order passed by me on 5-2-1984. M.Y.H. Appeal dismissed.