Honble GOYAL, J.–Legal heirs of the deceased-original landlord Sh. Suraj Narain have challenged the judgment and decree dated 26.9.1998 whereby the learned Additional District Judge No. 7, Jaipur City, Jaipur dismissed the suit of eviction. (2). On 5.8.1991 the original landlord Sh. Suraj Narain filed the suit for arrears of rent and eviction against the tenant Sh. Prem Chand and sub-tenant Sh. Rambabu-the defendant No. 2 with the averments that a big hall consisting of two shops of municipal Nos. 94 & 95 was let out to the defendant No. 1 Prem Chand on monthly rent of Rs. 250/-. Rent note was executed on 7.4.1978. Lateron monthly rent was enhanced to Rs. 300/-. The plaintiff sought eviction on the grounds of default in payment of rent since January, 1987, material alteration in the year 1987 converting this hall into two separate shops in `L shape and opening a new door by breaking the southern wall, sub-letting of one portion of shop No. 95 to the defendant No. 2 and non-user of the remaining shop by the defendant No. 1 for a period of about four years. By way of amended plaint filed in February, 1996 it was pleaded that during pendency of the suit the defendant No. 1 further let out a portion of 4ft x 4ft out of shop No. 95 to one Sh. Nagarmal who is carrying on STD-PCO in the said portion of 4ft x 4ft. (3). In written statement filed in November, 1992 while admitting the tenancy all the grounds of eviction were denied with pleas that the plaintiff Suraj Narain purchased goods worth Rs. 16,590/- through the defendant No. 1 who paid that price and thus this amount has to be adjusted against the arrears if rent; that the defendant No. 1 was authorized to carry on repair, addition- alteration and construction in the suit shop vide rent note; that both the defendants are carrying on business in partnership and thus no part of the suit shop was let out to the defendant No. 2 and the defendant No. 1 is carrying on his business in remaining portion of the shop. Vide amended written statement, the fact of sub-letting to Sh. Nagarmal has also been denied with a plea that Sh. Nagarmal is brother of the defendant No. 2 and the telephone connection has been obtained in his name. (4). Vide amended written statement, the fact of sub-letting to Sh. Nagarmal has also been denied with a plea that Sh. Nagarmal is brother of the defendant No. 2 and the telephone connection has been obtained in his name. (4). On the basis of the pleadings of the parties, following issues were framed :- 1- vk;k izfroknh us tuojh 1987 ls fdjk;k vnk ugha dj N% ekg ls vf/kd dk fdjk;k vnk u dj fMQkYV fd;kA 2- vk;k izfroknh uEcj 1 us okn ds iSjk uEcj 4 o 5 esa of.kZr lkjHkwr ifjorZu o {kfr fookfnr ifjlj esa igqapkbZ gSA 3- vk;k izfroknh uEcj 1 us fookfnr lEifr ds ,d Hkkx dks izfroknh uEcj 2 dks lcysV dj fn;k gSA 4- vk;k izfroknh uEcj 1 us fookfnr lEifr ds ,y Hkkx dks pkj lky ls vdkj.k gh can dj j[kk gSA 5- vk;k izfroknhx.k us fookfnr lEifr dks gLrkukUrfjr o rksMQksM djus dh /kedh oknh dks nh gSA 6- vk;k fookfnr lEifr esa vko;d rksMQksM o rjehe fdjk;sukes dh krZ ds vuqlkj oknh dh lgefr ls dh xbZ gS vkSj oknh ;g vkifRr mBkus ls LVksIM gSA 7- vk;k jktLFkku lkbZfdy LVksj o vk;qosZn nokbZ;ksa dk O;kikj izfroknh uEcj 1 o 2 dh lk>snkjh dk O;olk; gSA lEiw.kZ fookfnr ifjlj ij izfroknh la[;k 1 dk gh dCtk gSA 8- vk;k izfroknh la[;k 1 :i;s 16590 rsy dh dher lek;ksftr djkus dk vf/kdkjh gSA 9- vk;k izfroknhx.k ikap gtkj gtkZ [kkl ikus ds vf/kdkjh gSA 10- vuqrks"kA 11- vk;k izfroknh uEcj 1 us fcuk oknh dh vuqefr fookfnr ifjlj ds vxokj 4 xqq.kk 4 QqV Hkkx dks ukxjey ds ,lVhMh dkjksckj ds fy, ikVZfon itsku dj fn;k gSA (5). Evidence was recorded. Vide impugned judgment issue No. 1 was decided in favour of the plaintiff. Since arrears of rent as determined by the Court were paid, no decree of eviction on account of first default was passed. Remaining issues No. 2 to 8 and 11 were decided against the plaintiff. While deciding the issue No. 9 against the defendants the suit for eviction was dismissed. During pendency of the suit, the defendant No. 1 Prem Chand also expired, hence his legal heirs were brought on record. (6). I have heard learned counsel for the parties and have gone through the evidence. While deciding the issue No. 9 against the defendants the suit for eviction was dismissed. During pendency of the suit, the defendant No. 1 Prem Chand also expired, hence his legal heirs were brought on record. (6). I have heard learned counsel for the parties and have gone through the evidence. On the basis of the submissions made by learned counsel for the appellants, following points arise for determination:- (i) Whether the defendant No. 1 materially altered the premises without the permission of the landlord ? (ii) Whether the tenant has sub-let and parted with the possession of the part of the suit premises to the defendant No. 2 and his brother Sh. Nagarmal ? (7). Section 13 (1) (c) of the Rajasthan Premises (Rent of Control and Eviction) Act, 1950 (in short the Act) provides that the decree of eviction may be passed in case the tenant has without the permission of the landlord made or permitted to be made any such construction as in the opinion of the Court has materially altered the premises or is likely to diminish the value thereof. The alterations pleaded in paras 4 and 5 certainly amount to material alterations. In written statement, these alterations except opening a new door have been admitted. The trial court observed that the defendant No. 1 was authorized to make such alterations according to rent note Ex.1. According to learned counsel for the appellants, the tenant was not authorized to make such additions/alterations and he did not obtain any permission of the landlord, while learned senior counsel for the respondents supported the findings of the trial court on this point. Ex.1 is the rent note. At page 2 of Ex.1 it was agreed between the landlord and the tenant that the tenant would maintain the suit shop in a proper way and whenever any necessity so arises, the tenant would have a right to repair, to make additions/alterations and construction in the suit premises on his own expenses without claiming any compensation from the landlord. The above contents of the rent note in no manner of doubt authorises the tenant not only to carry out repair works but also to make additions/alterations and to raise new construction. Hence, no permission of the plaintiff-landlord as provided under Section 13 (1) (c) of the Act was required by the tenant. The above contents of the rent note in no manner of doubt authorises the tenant not only to carry out repair works but also to make additions/alterations and to raise new construction. Hence, no permission of the plaintiff-landlord as provided under Section 13 (1) (c) of the Act was required by the tenant. The trial court further observed and rightly so that according to the plaintiff these alterations were carried out in the year 1987 and no objection whatsoever was raised by the plaintiff prior to filing the present suit in August, 1991 simply in view of the authority given to the tenant-defendant No. 1 vide rent note Ex.1. Therefore, decision on this point does not call for any interference in this appeal. (8). Section 13 (1) (e) of the Act provides that the decree of eviction may be passed in case the tenant has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. It is not in dispute that the defendant No. 2 is carrying on business in a portion of shop No. 95. Neither in the plaint nor in the written statement it has been pleaded since when the defendant No. 2 is carrying on business in a portion of the suit shop. In para 7 of the written statement, it is pleaded that at present business under the name and style of Rajasthan Ayurvedic Medical Store in the partnership of both the defendants is going and prior to that joint business under the name and style of Rajasthan Cycle Store was being carried out by both the defendants. According to the statement of P.W.1 Dr. Prem Purohit-son of the original landlord Sh. Suraj Narain, the defendant No. 2 was inducted as a sub- tenant in the year 1987. The statement of P.W.3 Ramesh Chand was recorded on 2.8.1997. According to his statement, the defendant No. 1 handed over the possession to the defendant No. 2 Rambabu 8-9 years ago. It comes to the year 1987-1988. D.W.1 Sh. Pokhar Das is the son and power of attorney holder of the defendant No. 1 Prem Chand. According to his statement, he is in possession of the entire shop and the defendant No. 2 Rambabu is only his partner. He next stated that his father Prem Chand is the owner of Rajasthan Ayurvedic Medical Store. D.W.1 Sh. Pokhar Das is the son and power of attorney holder of the defendant No. 1 Prem Chand. According to his statement, he is in possession of the entire shop and the defendant No. 2 Rambabu is only his partner. He next stated that his father Prem Chand is the owner of Rajasthan Ayurvedic Medical Store. In cross-examination, it was stated that the defendant No. 2 Rambabu carried out the business of cycles from 1980 to 1989. He pleaded ignorance as to when the defendant Rambabu started business of medicines. At the end of his statement, he stated that partnership deed was executed and the same would be produced, if not produced so far. D.W.3 Rambabu deposed that he is carrying on business in the suit shop as a partner of the defendant No. 1 Prem Chand. Ex.A4 is the partnership deed. In cross-examination he stated that whether this partnership firm consisting of both the defendants was got registered with the Registrar of Firms or not can only be verified from the documents and he has no other documents of partnership except Ex.A4. He admitted that the partnership business of cycles was carried out from the year 1980 to 1989 and he has got the balance-sheet but the same has not been produced in the Court and there is no reason also for non-production of the same in the Court. He further stated that after closing down the cycle business the present business of Ayurvedic medicines is being carried out but no partnership deed to carry on this business was executed. It was also stated by him that he opens this shop at about 8 a.m. and closes the same at about 9-10 p.m. but the key earlier remained with the defendant No. 1 and now with D.W.1 Pokhar Das. He next stated that his firms complete name is Rajasthan Ayurvedic and Medical Store. D.W.4 Vinod Chand is the son of D.W.1 Pokhar Das. According to his statement, his father and the defendant Rambabu carry on business of Ayurvedic medicines since 1989-1990. (9). According to learned counsel for the appellants, the possession of the defendant No. 2 Rambabu over the disputed portion of the shop has been proved and burden lies upon the defendants to prove the partnership. According to his statement, his father and the defendant Rambabu carry on business of Ayurvedic medicines since 1989-1990. (9). According to learned counsel for the appellants, the possession of the defendant No. 2 Rambabu over the disputed portion of the shop has been proved and burden lies upon the defendants to prove the partnership. According to him firstly no partnership since 1980 has been proved and Ex.A4 document was prepared lateron and the same is not reliable as no account books, balance-sheet or income-tax returns or any other document to prove the facts of partnership and the fact that it commenced in the year 1980 have been produced. It was also contended that assuming that partnership firm was constituted according to Ex.A4, that partnership came to an end after expiry of five years as per Section 42 of the Indian Partnership Act, 1932 (in short the Act, 1932). Reliance has been placed upon Karumuthu Thiagarajan Chettiar and Another vs. E.M. Muthappa Chettiar (1), and Santiranjan Das Gupta vs. Messrs. Dasuram Murzamull (2). Learned senior counsel Mr. Mehta appearing for the respondents contended that the partnership continued even after the expiry of five years and as per Ex.A4 it is well proved that partnership firm was constituted in the year 1980 and thus after expiry of five years as per Ex.A4 the partnership was at will and he referred Section 7 of the Act, 1932. (10). I have considered the rival submissions in the light of the pleadings and the evidence. According to the plaint, a portion of the shop No. 95 was sub-let by the defendant No. 1 to the defendant No. 2 after making material alterations. The trial court held that material alterations were carried out in the year 1987. As per evidence adduced on behalf of the plaintiff-landlord the defendant No. 2 was inducted as a tenant by the defendant No. 1 in the year 1987. This statement was given by P.W.1 in cross- examination and it finds corroboration from the statement of P.W.3 Sh. Ramesh Chand who was not cross-examined on this point. P.W.1 Dr. Prem Purohit categorically stated that the portion of the shop No. 95 was sub-let to the defendant No. 2 after material alterations made in the shop by the defendant No. 1. D.W.1 Sh. Ramesh Chand who was not cross-examined on this point. P.W.1 Dr. Prem Purohit categorically stated that the portion of the shop No. 95 was sub-let to the defendant No. 2 after material alterations made in the shop by the defendant No. 1. D.W.1 Sh. Pokhar Das nowhere stated in examination-in-chief as to when the defendant No. 2 Rambabu started the business in partnership of his father. In cross-examination, it was stated that Rambabu carried on cycle business from 1980 to 1989. He did not state about execution of the partnership deed and the signatures of his father in examination-in-chief and at the end of the cross- examination, he deposed that partnership deed was executed and if the same is not produced in the Court it may be produced now. It is also significant to say here that the defendants did not produce any account books, balance-sheet, income-tax returns and sales-tax returns or any other document except Ex.A4 to prove the partnership since 1980 under the name and style of Rajasthan Cycle Stores. The entire statement of D.W.1 Pokhar Das goes to show that he is not certain about the partnership. Firstly he stated that he is in possession of the entire shop and Rambabu has got no possession and he is simply his partner. He next stated that his father is the owner of Rajasthan Ayurvedic Medical Store. Thus, he is even not certain as to whether Rajasthan Ayurvedic Medical Store is a business of partnership firm or proprietorship concern. In cross-examination, he stated that he carries on his own business in another shop No. 107 and the disputed shop is occupied by his son. He next stated that the defendant Rambabu carried on business of cycles from the year 1980 to 1989. Thus, it amount to his admission that the business of selling the cycles was carried out by the defendant No. 2 Rambabu. D.W.1 Sh. Pokhar Das next stated that he does not know since when Rambabu is carrying on business of selling the medicines. It was also stated that Rambabu opens this shop and this shop remains open even after he leaves for his house. He also pleaded ignorance about the agencies of medicines with Rambabu. In view of such statement, it is not possible to rely upon that both the defendants started the business of cycles in partnership in the year 1980. It was also stated that Rambabu opens this shop and this shop remains open even after he leaves for his house. He also pleaded ignorance about the agencies of medicines with Rambabu. In view of such statement, it is not possible to rely upon that both the defendants started the business of cycles in partnership in the year 1980. D.W.3 Rambabu admitted that balance-sheet of cycle business was prepared and he has got the same but the same was not produced for no reason. It was also admitted that profit and loss statement was prepared in the year 1989 at the time of closure of the cycle business but the same was also not produced in the Court. He further admitted that he has no document of partnership except Ex.A4 partnership deed. He further admitted that his firms complete name is Rajasthan Ayurvedic and Medical Store and he opens and closes this shop daily. In view of such statement of the defendant No. 2 it is difficult to hold that both the defendants constituted partnership firm in the year 1980 vide Ex.A4 partnership deed. A perusal of the various terms and conditions of Ex.A4 also reveals that it does not appear to be a genuine document. It is nowhere stated in this document about the amount invested by both the defendants which appears to be a very essential condition while constituting a firm. According to condition No. 5 share of the defendants No. 1 & 2 were 35% and 65% respectively. As per condition No. 6 account in the name of partnership firm was to be opened in a bank. According to condition No. 7 the entire accounts were to be maintained by the defendant No. 2 alone. As per condition No. 12 accounts were to be settled at the end of every year for distribution of profit and loss between both the defendants. As per condition No. 16 the maximum term of this partnership was fixed five years. It was also provided that after five years accounts would be settled and the partnership would come to an end and entire assets of this firm would be taken away by the defendant No. 2 alone. No bank account in the name of this firm has been shown to be opened. No document of settlement of accounts every year or at the end of five years has been placed on record. No bank account in the name of this firm has been shown to be opened. No document of settlement of accounts every year or at the end of five years has been placed on record. There is absolutely no evidence as to what was the profit or the loss at the end of this cycle business and the condition that at the end of the partnership firm the entire assets would be taken away only by the defendant No. 2-all these facts go a long way to prove that this partnership deed is not a genuine document. (11). Assuming that this partnership deed was executed between the defendants. This partnership came to an end in the year 1985 after expiry of fixed term of five years in view of the provisions of Section 42 of the Act, 1932 which provide that subject to contract between the partners a firm is dissolved if constituted for a fixed term by the expiry of that term. It is admitted by the defendants that no new partnership deed was executed to carry on or to start another business under the name and style of Rajasthan Ayurvedic Medical Store. Section 7 of the Act, 1932 is not applicable in the instant case as it is not a case of partnership at will in view of the judgment of Honble the Supreme Court delivered in Karumuthu Thiagarajan Chettiar and Anothers case (supra), that partnership is not at will when duration of partnership was fixed. (12). Regarding the question of partnership to carry on the present business is also not proved at all. Simple oral statements of D.W.1 Pokhar Das and D.W.3 Rambabu are not sufficient to hold that the present business is being carried out in partnership since 1989. It was held by the Honble Supreme Court in Santiranjan Das Guptas case (supra), that there is no written partnership, no record of terms and conditions of oral partnership and no account of partnership maintained and produced and no bank account of partnership was produced, no inference can be drawn as to existence of partnership. Otherwise also, in view of the statements of both D.W.1 Pokhar Das and D.W.3 Rambabu it appears that the present business is being carried out by the defendant No. 2 alone. (13). Learned senior counsel for the respondents Sh. Otherwise also, in view of the statements of both D.W.1 Pokhar Das and D.W.3 Rambabu it appears that the present business is being carried out by the defendant No. 2 alone. (13). Learned senior counsel for the respondents Sh. Mehta contended that there is no pleadings and further there is no evidence to prove that the defendant No. 2 is in exclusive possession of the portion of the shop No. 95 or the defendant No. 1 parted with the possession of the said portion and mere allowing another person to carry on business in a portion of the shop does not amount to sub-letting or parting with the possession. He placed reliance upon some of the judgments. In Gundalapalli Rangamannar Chetty vs. Desu Rangiah and Others (3), it was held that there cannot be a sub-letting unless the lessee parted with legal possession. Mere fact that another person is allowed to use the premises does not amount to sub-letting. Similar view was taken by Punjab & Haryana High Court in M/s. Chokesri and Company vs. Smt. Rajbir Kaur and Anr. (4), Kala & Anr. vs. Madho Prasad Vaidya (5), and Amir Ahmed vs. Yusuf (6). In Dipak Banerjee vs. Lilabati Chakraborty (7), it was held that to prove sub-letting there should be evidence to show consideration paid by the sub-tenant to the tenant. In Shama Prashant Raje vs. Ganpatrao and Others (8), it was held that to prove sub-letting two ingredients-parting with the possession and some consideration therefor must be established and in Resham Singh vs. Raghbir Singh and Another (9), it was held that the landlord has to prove that the sub-tenant was in exclusive possession of the property in question. Learned counsel for the appellants placed reliance upon P.A. Thomas and Another vs. M. Mohammed Tajuddin and Another (10), wherein it was held that when the tenant converted his individual business into partnership business and the appellant was one of the partners but it was found that the appellant-tenant has no effective control over the property or the business, it amounts to sub-letting. In the instant case, D.W.1 Sh. Pokhar Das himself admitted in his statement that his father is not doing any business for last 7-8 years and he is looking after the business of his father for last 15 to 20 years. In the instant case, D.W.1 Sh. Pokhar Das himself admitted in his statement that his father is not doing any business for last 7-8 years and he is looking after the business of his father for last 15 to 20 years. In Gurdial Singh vs. Raj Kumar Aneja (11), the Honble Supreme Court held that the tenant is not entitled to sub-let with oral consent of landlord and there should be consent in writing. In Harbhajan Singh vs. Jai Shree Kishan (12), Punjab & Haryana High Court held that the tenant did not produce any account book of the partnership firm, hence sub-letting was found to be proved. (14). I have considered the rival submissions in the light of the judgments relied upon. As far as the legal position is concerned there can be no dispute that the landlord has to prove that the sub-tenant is in exclusive possession of the property in question and the tenant has no control whatsoever. In the instant case, the plea of partnership taken by the defendants has completely failed. Rather, it is found proved that the defendant No. 2 alone is carrying on business in a portion of the suit shop and the defendant No. 1 or his legal heirs have no concern whatsoever with the said business. Although there is no evidence of any rent/consideration paid by the defendant No. 2 to the defendant No. 1 except that of P.W.3 Ramesh Chand. P.W. Ramesh Chands wife is also a tenant of the original landlord Suraj Narain. According to his statement, the defendant No. 2 is paying monthly rent @ Rs. 250/- to the defendant No. 1. But this statement is not reliable as it does not appear to be natural that the defendant No. 2 would pay the rent to the defendant No. 1 every time in his presence and further there is no such statement of P.W.1 Dr. Prem Purohit and P.W.2 Sh. Nitin Purohit-both the sons of the original landlord. It was submitted and rightly so by learned counsel for the appellants that it is difficult for the landlord to prove by any direct evidence that any monthly consideration paid by the sub-tenant to the tenant. The Honble Supreme Court in M/s. Bharat Sales Ltd. vs. Life Insurance Corporation of India (13), held so. It was submitted and rightly so by learned counsel for the appellants that it is difficult for the landlord to prove by any direct evidence that any monthly consideration paid by the sub-tenant to the tenant. The Honble Supreme Court in M/s. Bharat Sales Ltd. vs. Life Insurance Corporation of India (13), held so. In view of the entire discussion made hereinabove, sub- letting by the defendant No. 1 to the defendant No. 2 is found well proved. (15). As far as the question of further sub-letting a portion of 4ft x 4ft out of the portion in possession of the defendant No. 2 to Sh. Nagarmal is concerned, this fact has been rightly found not proved by the learned trial Judge, although it is not in dispute that STD-PCO in the name of Nagarmal who is brother of the defendant No. 2 was established. Vide application under Order 6 Rule 17 C.P.C. filed by the plaintiff on 22.12.1995, the plaintiff came to now about this fact in August, 1995. Thus, this application was filed after a delay of four months and no reason of this delay has been explained on behalf of the plaintiff. The statement of P.W.1 Sh. Prem Purohit was recorded on 19.8.1995 but he did not state anything about this fact. The statement of P.W.2 Nitin Purohit on this aspect is not reliable. According to his statement, three shops No. 93, 94 & 95 were let-out to the defendant No. 1 while it is the case of the plaintiff-landlord that only one big hall consisting of two shops No. 94 & 95 was let out. He further stated that possession of Nagarmal is over 5ft x 5ft. This statement is contrary to the area pleaded in para 6 `k of the plaint. The statement of P.W. 2 was recorded on 26.4.1996 and according to his own statement, Nagarmal is occupying this portion for last seven years. Thus, according to his statement, Nagarmal is carrying on STD-PCO since, 1989 while according to the application under Order 6 Rule 17 C.P.C., this fact came to the notice of the plaintiff only in August, 1995 while it is also the statement of P.W.1 Prem Purohit that his son is occupying the remaining portion of the suit premises. According to the statement of D.W.3 Rambabu, Nagarmal is his brother and no part of the shop was let out to him. According to the statement of D.W.3 Rambabu, Nagarmal is his brother and no part of the shop was let out to him. According to Rambabu, Sh. Nagarmal was a servant in the said business of Rajasthan Ayurvedic Medical Store. But this statement appears to be not reliable as no such plea was taken in the written statement. There is ample evidence on the record that the portion of the shop No. 95 let out to Rambabu is in his exclusive possession and if his brother has established STD-PCO it does not amount to further sub-letting. (16). Thus, in view of the entire discussion made hereinabove, the findings of the trial court on second point with regard to sub-letting to the defendant No. 2 is liable to be set aside. (17). In the result, this appeal is allowed, the impugned judgment and decree dated 26.9.1998 stand set-aside and a decree of eviction in favour of the appellants against the respondents is passed and they will hand over the vacant possession of the suit shops after a period of two months from today. No order as to costs.