MURALIDHARA RAO, J. ( 1 ) 1. This is a landlord's petition challenging the order of dismissal of eviction petition in HRC 2484/83, filed under clauses (f) and (h) of Section 21 (1) of the Karnataka Rent Control Act. ( 2 ) LANDLORD sought eviction against respondents 1 and 2 alleging that respondent-1 is the tenant of premises No. 163/164, 6th cross, Gandhinagar, Bangalore-9, on a monthly rent of Rs. 200/ -. Premises, in its entirety, belonged to the joint family of Ramswaroop Gupta. By a registered partition deed dated 7-3- 1977, the properly was partitioned; in the said partition the schedule premises, its first floor, and an adjacent room (garage) fell to the share of the petitioner landlord. The main building, ground floor and first floor, fell to the share of other members. Petitioner-landlord has been staying in two rooms in the main building, which portion has fallen to the share of another member. The petitioner's family consists of himselt, his wife and three children. The accommodation being insufficient and his stay being permissive, he sought eviction, to be in possession of his own premises. ( 3 ) IN the allotted portion there are two rooms in the first floor, a room and a garage in the ground floor. The respondents are in occupation of garage. The first floor was occupied by Mohd Sultan. He sought eviction against Sultan, the tenant of two rooms in the first floor, anc against these respondents for the garage apart from the personal requirement, the petitioner-landlord pleaded that first respondent has sub-leased the premises. to 2nd respondent without his consent. ( 4 ) FIRST respondent admitted his tenancy. He pleaded that partition deed is a concocted document. He denied the need of the landlord. He stated he is carrying on the business in the name and style "kiran MOVIES", since 15 years, along with his father-in-law - Ramulu (respondent No. 2), the alleged sublessee. He pleaded Ramulu is carrying on the business jointly under the name and style of "kiran MOVIES". He denied the allegation of sub-lease. ( 5 ) THE second respondent-alleged sub-lessee-has filed a separate statement of objection. He asserted that he is a tenant, himself. He contended that he was a tenant under the petitioner's father. According to him, first respondent was never a tenant and "kiran movies" was a proprietory concern. He denied the allegation of sub-lease. ( 5 ) THE second respondent-alleged sub-lessee-has filed a separate statement of objection. He asserted that he is a tenant, himself. He contended that he was a tenant under the petitioner's father. According to him, first respondent was never a tenant and "kiran movies" was a proprietory concern. He accused his son-in-law (1st respondent) for conniving with the petitioner-landlord. He also denied the alleged partition and contended that the landlord's joint family still continues. He further stated that there were other tenants and sufficient accommodation is available to the landlord. According to him ' Ajantha Movies", ramrao and "star Publicity'' were the tenants. "star Publicity" is run by sultan, whose tenancy is admitted and eviction proceedings are taken against him. "ajantha Movies" and "ramrao" have vacated the premises. Landlord's say in this regard is that they had occupied some portion in the main building, which has fallen to the share of his brothers. ( 6 ) ON these pleadings the court below raised following points for consideration : -"1) Whether petitioner proves that he requires the suit premises for his own use and occupation and whether his requirement is bona fide and is reasonable ? 2) Whether petitioner proves that the respondent No. 1 has unauthorisedly sub-let the suit premises to the respondent No. 2 ? 3) Who will suffer greater hardship in case of grant or refusal of prayer of eviction ? ". ( 7 ) THE Court below has failed to note that as regards ''tenancy", the stand of respondents is contradictory. ( 8 ) PETITIONER-LANDLORD examined himself as PW-1 ; respondents are examined as RW 1 and rw 2. On their behalf Shankarlal is examined as RW 3 and Md. Sultan, the tenant who has suffered eviction order in HRC 2423/83. is examined as RW-4. ( 9 ) THE learned Judge has proceeded on the footing that partition, pleaded by by landlord, is established. I have no reason to disagree. Once the partition is held proved, the consequence that follows is that the petitioner landlord becomes the owner of schedule 'c' of partition deed ; the premises in dispute is part of 'c' schedule in the partition deed The other portions having gone to other members, the premises where the petitioner-landlord is staying does not belong to him. Once the partition is held proved, the consequence that follows is that the petitioner landlord becomes the owner of schedule 'c' of partition deed ; the premises in dispute is part of 'c' schedule in the partition deed The other portions having gone to other members, the premises where the petitioner-landlord is staying does not belong to him. Therefore it follows that his stay in those premises is not in his own right but at the mercy of the members, to whom it is allotted. Therefore his desire to stay in the portion allotted to him is but natural and cannot be characterised as oblique motivated. What is required to be examined is whether this need and desire is bona fide and reasonable. ( 10 ) BEFORE considering this aspect, a factual mistake committed by the court below needs to be taken note of. Ramarao was occupying a portion of the premises which is not a part of 'c' schedule of the partition deed. He was occupying a portion in the main building. That portion has fallen to the share of other members. On his vacating, the accommodation would be available to the owner, to whom it is allotted but not to the petitioner-landlord. Similarly the portion occupied by "ajantha Movies" who had occupied a portion in the main building. The accommodation available with "ajantha Movies" does not benefit the petitioner-landlord. The finding of the court below that the petitioner is occupying this portion and that it belongs to him is factually incorrect. The evidence in this regard is disbelieved on the ground that it is not pleaded in the petition. But in recording such a finding the court below has failed 10 notice that this was not the defence of respondent-1. Resoondent-2 had not been impleaded earlier. He was impleaded only after the disposal of CRP 2075/84 connected with crp 103/86. decided on 8-1-1986. Thereafter he filed his statement of objections on 2nd April 1986. Subsequently there was no occasion to file the pleadings and by that time PW-1 had been examined in part. Pw-1 landlord was examined on 3-2-1984, 16-3-1984. . 27-2-1986, 12 6- 1986,136-1986, 21-61986, 1-7-1986, 3-7-1986 and 8 7-1986. He has clearly stated that he has no share in the main building and the portion vacated by Ramrao had fallen to his younger brother's share 'examination dated 8-7-1986 ). Pw-1 landlord was examined on 3-2-1984, 16-3-1984. . 27-2-1986, 12 6- 1986,136-1986, 21-61986, 1-7-1986, 3-7-1986 and 8 7-1986. He has clearly stated that he has no share in the main building and the portion vacated by Ramrao had fallen to his younger brother's share 'examination dated 8-7-1986 ). As regards 'ajantha Movies" there is no evidence about tne premises being leased to it Neither RW! (1st respondent) nor rw2 (respondent No. 2) mention about these two transactions in their deposition. Indeed the learned counsel for respondent had no convincing explanation about the factual mistakes in paras 17 and 18 of the judgment. ( 11 ) COMING to the requirement of the landlord, the deposition of PW-1 makes it manifest that he has been staying in a portion of the premises allotted to his brother. In the schedule premises where he wants to live there was a tenant by name Md. Sultan, who has running "star publicity"; against whom he filed HRC 2421/83, which is decreed. Md Sultan was occupying two rooms. The landlord's family consists of himself, his wife and three children This is not disputed. Landlord has stated that he has to construct kitchen and bathroom, which he proposes to do in the schedule premises, which is a garage and have parking space for his scooter. After going through the entire evidence, there is nothing in the evidence of RWs 1 to 4 to disbelieve or discredit the landlord. Indeed in the situation, in which he is placed, it is a matter of necessity and for the well being of his wife and children, after partition, he cannot be deprived of his right to enjoy his own premises; there is no oblique motive. The finding of the court below is clearly erroneous, hence it is reversed. ( 12 ) IT follows that landlord, who needs the premises for himself and his family members would be put to greater hardship. The first respondent, who admitted in his written statement that he was a tenant resiled from his stand, when he came in the box. He states that "i am not the tenant of schedule premises. My father-in-law is the tenant". He is working in arrack shop in Jayanagar. He frankly states that he does not require the premises and he is residing in Siddapura. Therefore it is obvious that no hardship will be caused to him. He states that "i am not the tenant of schedule premises. My father-in-law is the tenant". He is working in arrack shop in Jayanagar. He frankly states that he does not require the premises and he is residing in Siddapura. Therefore it is obvious that no hardship will be caused to him. His conduct is unfair and cannot be treated as a truthful witness. He has no regard for truth. ( 13 ) FOR the aforesaid reasons the landlord is entitled to an order of eviction under clause (h) of Section 21 (1) of the karnataka Rent Control Act. Ground of sub-lease and status of respondent-2 according to petitioner and as also according to the written statement of first respondent filed on 9-12-1983, the tenancy is between petitioner and first respondent. According to him he is carrying on the business of "kiran Movies", jointly with his father in-law viz. , Ramulu respondent-2. ( 14 ) RESPONDENT No. 2 who got himself impleaded as narrated above, has pleaded that ha is a tenant in his own right His version is quite contrary to his son-in-law's version. That apart there is no document to evidence the privity of contract between the landlord and second respondent. Petitioner has produced exhibits P-2 to P-5 to show that he was receiving rents from respondent-1. PW-1 has denied that the words "k. Ramulu (Kiran Movies) is not in his wife's handwriting". Second respondent has produced Ext. R-44 and R-45 dated 11-8-1984, to prove that he had sent rents for two months by money order but he admits it was refused. Firstly this was during the pendency of the proceedings ; secondly if as asserted by him he was a tenant, inducted by landlord's father, who died in 1981 ; why no receipts are produced to evidence payment of rents for the earlier period ? Further, RW-3 Shankarlal, who gave his deposition on 19-9-1986, states he has baen seeing second respondent in the premises since thirteen or fourteen years i. e. since 1972-73, whereas petitioner asserts that he was a tenant since 1970. ( 15 ) THE deposition of RWs 1 to 4 makes it doubtlessly clear that respondent No. 2 is in possession and respondent-1 who admits to have taken on lease is not in possession. ( 15 ) THE deposition of RWs 1 to 4 makes it doubtlessly clear that respondent No. 2 is in possession and respondent-1 who admits to have taken on lease is not in possession. This is a clear case where the lessee has transferred his interest in favour of resp3ndent-2, who has the exclusive right of enjoyment, which includes right to include and exclude persons. The tests laid down by Supreme Court in M/s. Shalimar Tar products v H. C. Sharma ( AIR 1988 SC 145 ) are positively found in the case. In addition, in similar circumstances, on acts, the Supreme Court held that sub lease is established, as found in Bhairab chandra v Ranadhir Chandra (AIR 1988 sc 3s6 ). It reads thus :"now coming to the question of subletting once again we find that the courts below had adequate materiel to conclude that the respondent had sublet the premises, albeit to his own brother and quit the place and the subletting was without the consent of the appellant. Admittedly, the respondent was living else where and it is his brother manadhir who was in occupation of the rooms taken on lease by the respondent. The High Court has taken the view that because Manadhir is the brother of the respondent, he will only be a licencee and not a sub-tenant. There is absolutely no warrant (or this reasoning, it is not as if the respondent is still occupying the rooms and he has permitted his brother also to reside with him in the rooms On the contrary, the respondent has permanently shifted his residence to another place and left the rooms completely to his brother for his occupation without obtaining the consent of the appellant. There is therefore no question of the respondent's brother being only a licencee and not a sub-tenant. Hence it follows that the High Court was not justified in setting aside the concurrent findings of the Courts below on the ground of sub-letting also". ( 16 ) I have no hesitation in holding that respondent-2 is a sub-lessee inducted by respondent-1 and landlord is entitled for an order of eviction under section 21 (1) (f) of the Karnataka Rent control Act. ( 17 ) IT was contended by Mr. ( 16 ) I have no hesitation in holding that respondent-2 is a sub-lessee inducted by respondent-1 and landlord is entitled for an order of eviction under section 21 (1) (f) of the Karnataka Rent control Act. ( 17 ) IT was contended by Mr. Gopala gowda that the non-examination of brothers of the petitioner to show that they wanted him to vacate is fatal and therefore landlord is rot entilled to an eviction under Sec 21 (1) (h ). He relied upon a decision of this Court in Mysore chemical and Biological Agencies and others v J M A Ahamed Moideen and others (1982 (1) Karnataka Law Chronicle 334; It reads thus :"non-EXIMINATION of petitioners' landlord in support of their claim that he wanted them to vacate the premises under their occupation; non-production of quit notice or letter and absence of eviction proceedings - injurious to the rase of the petitioners. The petitioners are living in the premises belonging to one Nagappa since 1965. According to them, the said nagappa had written them a letter in 1965 asking them to vacate the premises. That letter is not produced. Even that Nagappa has not been examined by the petitioners to show that he wants the possession of that premises. It is undisputed that Nagappa has not filed any eviction petition as yet. There is no material to show that nagappa has asked them to vacate or to show that he has sent a letter or notice asking them to vacate. There- fore even viewed from this angle, their requirement cannot be said to be bona fide or reasonable. "in the said decision, the learned Judge mentioning several circumstances, while judging the band fide of landlord, considered this fact as an additional ground to reject the claim as bona fide and reasonable. It is not an authority to state that in all cases the landlord who is occupying a rented premises is required to prove that he is under threat of eviction from his landlord. Indeed this will be estrange legal proposition. The landlord's desire to stay in his own house is incidental to his proprietory right. Because of the rent restriction Act, his absolute right is curtailed and he is lequired to follow the procedure provided in the Act. His right is not dependent on his landlord's action, where he is a tenant. Indeed this will be estrange legal proposition. The landlord's desire to stay in his own house is incidental to his proprietory right. Because of the rent restriction Act, his absolute right is curtailed and he is lequired to follow the procedure provided in the Act. His right is not dependent on his landlord's action, where he is a tenant. Further it would be illogical and fallacious to state that unless he is under threat of eviction, he cannot seek eviction of his tenant. Further, various clauses in Section 21 (1) provide a right to the landlord to seek eviction on different grounds. It is the proof of the alleged ground that entitles him to seek eviction. ( 18 ) IN CRPs 2587 to 2589/73, decided on 12th July 1974, Mr. DMCJ (as he then was) held thus :"it is not necessary for a landlord who is himself a tenant of some other premises, to wait until he is evicted by his landlord therefrom before he seeks to occupy his own premises by evicting his tenants therefrom. In the present case the landlord has explained that the rented premises in which the printing press is situate, are in a dilapidated condition. Hence, the mere absence of any demand or pressure by his landlord for vacating the premises in which he is now running the printing press, is not sufficient to hold that he does not reasonably and bona fide require for his own use the premises in the possession of his tenants " ( 19 ) FOR the aforesaid reasons, this petition succeecs ; CRP is allowed; the impugned order is set aside. The landlord is entitled to eviction under clauses (f) and (h) of Section 21 (1 ). As the conduct of first respondent has been inconsistent and self-contradictory, he is liable to pay costs. Hence, petition is allowed with costs. Advocate's fee Rs. 500/- to be paid by respondent-1. ( 20 ) ADMITTEDLY the first respondent is not in possession and he is not carrying on the business of "kiran Movies". Respondent-2 is an unauthorised sublessee. In the circumstances, the tenant and sub-tenant are directed to vacate the premises by 10th January 1989. Petition allowed. --- *** --- .