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1988 DIGILAW 140 (RAJ)

Satya Narain v. Gopal Saran

1988-02-23

A.K.MATHUR

body1988
JUDGMENT : 1. This second appeal is directed against the judgment and decree passed by the District Judge, Udaipur. That the shop situated in Udaipur outside Delhi Gate was rented out by plaintiff Gulam Abbas to Gopal Saran on August 1, 1961. The rent was paid up to May 31, 1971. Thereafter, some rent was due. The plaintiff filed a suit for eviction on the ground that he had not paid rent for 39 months at the time of filing of the suit as defendant was a defaulter. Secondly, it was pleaded that the defendant had allowed the roof of the shop to be used for advertisement and a board of Zetor Tractor has been fixed without the written consent of the plaintiff, as such defendant had parted away the part of possession. The plea of material alteration was also raised. The defendant contested the suit and tendered the rent after May, 1971 by money orders but same was not accepted. Therefore, it was deposited in the Court under Section 19-A of Rajasthan Premises (Control of rent and Eviction) Act, 1950, for the months of June, July August and September, 1971 and since then he is depositing the same as such he is not defaulter. As regards fixing of the board he pleaded that board has been fixed but not embedded in the roof or walls. There is no material alteration. It was also pleaded that board is not of the advertising agency but defendant himself has fixed this board while doing the business of advertising, as such defendant has not parted away with the possession. The defendant also put a counter claim of Rs. 950/- for expenses and Advocate's fee in proceedings under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred as `the Act'). On the pleadings of the parties, six issues were framed. The trial Court after recording necessary evidence and hearing the parties decreed the suit of plaintiff and further decreed the sum of Rs. 350/- as arrears of rent for April, September and December, 1972 and May, June, July, and September of 1973. Aggrieved against this, the defendant filed an appeal before the District Judge, Udaipur and learned District Judge, after hearing the parties accepted the appeal of the defendant and set aside the judgment and decree of the trial Court. Hence, the present second appeal. 2. Aggrieved against this, the defendant filed an appeal before the District Judge, Udaipur and learned District Judge, after hearing the parties accepted the appeal of the defendant and set aside the judgment and decree of the trial Court. Hence, the present second appeal. 2. Mr. Maheshwari, learned counsel for the appellant urged that placing of the board by the defendant on the roof of the rented premises amounts to parting away with the possession. The learned counsel submitted that this aspect has not properly been considered by the appellate. Court counsel also submitted that learned appellate Court has committed a grave illegality in not properly appreciating the evidence on record. It was urged that it has been established that when the rent was tendered and when it was refused which led him to deposit the rent in the Court under Section 19-A of the Act. Learned counsel has also joined the issue of the material alteration. 3. Mr. Gupta, learned counsel for the respondent submitted that he has not parted away with the possession. Since he is dealing in the advertising business, therefore, he has stalled this board and stalling of this board does not amount to parting away with the possession. The learned counsel submitted that all the amount has been withdrawn by the plaintiff which has been deposited under Section 19-A and therefore, this argument is not open to the appellant. Learned counsel also submitted that simply stalling the board on the roof of the shop does not amount to material alteration. 4. The first and foremost question which arise before me is regarding parting away with the possession. Learned counsel invited my attention to Section 13(1)(e) of the Act which lays down that no tenant shall assign, sub-let or otherwise part with the possession without the permission of the landlord. Section 13(1)(e) reads as under:- "Sec. 13 : Eviction of tenants - (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to payment therefor to the full extent allowable by this Act, unless it is satisfied - (e) that the tenant has assigned, sub-let or otherwise parted without the permission of the landlord's interest therein or; ......... In the present case, the plaintiff has not disputed that the advertisement board was stalled on the roof of the shop. The defendant has also not disputed that he is getting the rent for this board and he has accepted the document Ex. 6 which Paramount Services has written to the plaintiff Gulam Abbas. Ex. 6 reads as under:-20.1.1977Shri Gulam Abbas Bhalam WalaUdaipur.Dear Sir,We wish to write that we have taken the site for putting up commercial board on the terrace of the shop of Saran Optician, Udaipur. This Shop is with us for the last 1/2 year. Yours faithfully, Paramount Services, Sd/- PartnerA perusal of this document Ex. 6 clearly shows that the Paramount Services has stalled this board on the terrace of the shop and the site is with them for last 6 months. It clearly transpires that the terrace of the shop has been parted away to the Paramount Services for installing the advertisement board. The expression parting away with the possession has come up before the Hon'ble Supreme Court in Shalimar Tar Products Ltd. v. H.C. Sharma and others, AIR 1988 SC 145 . It was observed that "In order to constitute subletting, there must be parting of the legal possession by the lessee. Parting of legal possession means possession with the right to include and also right to exclude others". 5. Mr. Gupta, learned counsel for the respondent also invited my attention to Amir Ahmed v. Yusuf where the expression `parting away with the possession' came up for interpretation before the Division Bench and the Division after considering all the cases on the subject concluded as under:-1. Where a tenant allows another person to merely use the premises or part of the premises, he cannot be said to have parted with possession of the premises or part of the premises so as to entail the liability of eviction under Section 13(1)(e) of Act.2. that the conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person does not constitute parting with possession under Section 13(1)(e) of the Act.3. that the conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person does not constitute parting with possession under Section 13(1)(e) of the Act.3. that the decision in Bhagwat Prasad's case so far as it held that a tenant by sharing the premises with a third person can be said to have parted with the possession of the premises does not lay down the correct law.Now the question is that in Ex. 6 (the admitted document) which shows that the site is with the Paramount Services and it has also been admitted by the defendant that he has charged the money or leasing out this site to the Paramount Services. Now from this, we have to examine whether the defendant has parted away with the possession of not. Two factors which are relevant in the present case are that site is with the Paramount Services for last 6 months and second the defendant has admitted that he has received the rent for this D.W. 1 Gopal Saran has deposed. bl cksMZ ij izpkj ds rhu lky ds ianzg lkS :i;s esa gksrk Fkk ftlesa isafVax vkSj cksMZ vkSj fy[kkoV dk [kpZ esjk Fkk ! These two factors do establish that the defendant has parted away with the part of terrace to Paramount Services. This was strictly prohibited in the lease deed Ex. 1, Clause 3 reads as under:- nqdku dh fyik iksrk lkQ vPNh gkyr esa j[kwaxk vkSj fyf[kr btktr vkids dksbZ ethn rkehj u djkáxk vkSj u nwljs fdlh vkSj dks eqOofdy dj ldwxka A eSa [kqn nqdku ij cSBwaxkA x x xx x xIt was clearly mentioned that they will not part away with the possession. Notwithstanding that the defendant has parted away with the possession which is apparent from the Ex. 6 and statement of Ex. 1, that he has charged rent for stalling this board. These two factors go to show that the defendant has parted away the possession of the part of the terrace so as to enable the Paramount Services to stall the board. Thus, I accept the first contention of Mr. Maheshwari. 6 and statement of Ex. 1, that he has charged rent for stalling this board. These two factors go to show that the defendant has parted away the possession of the part of the terrace so as to enable the Paramount Services to stall the board. Thus, I accept the first contention of Mr. Maheshwari. So far as the 2nd & 3rd contentions are concerned, I need not to go into that because I think that the first contention of the plaintiff prevails and the plaintiff is entitled to get the defendant evicted on account of Section 13(1)(e) of the Act. Therefore, I accept the appeal and set aside the judgment of the trial Court and direct that the defendant shall give the possession of the premises to the plaintiff within a period of 6 months from today. Respondent/defendant shall continue to pay rent of premises and appellant can withdraw the rent deposited by respondent/defendant under Section 19-A for seven months i.e. April, September, December, 1972 and May, June, July, September, 1973. No order as to the costs.Petition allowed.