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2005 DIGILAW 3236 (RAJ)

Prakash Tatia v. Madanlal

2005-12-07

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The appellants are aggrieved against the Judgment and decree of the trial Court dated 16.01.1979 and the Judgment and decree of the appellate Court dated 03.01.1981. In a suit for eviction filed by the respondents-plaintiffs against the appellants-defendants, the trial Court decreed the suit of the plaintiffs on the ground of sub-letting of the suit premises by the defendant No. 1 to the defendant No. 2 even after holding that the plaintiffs could not disclose that on what rent the suit property was let out by the defendant to the sub-letee but he proved that sub-letee is in possession of the two shops since last more than two years. The trial Court also held that though the defendant took plea that both the plaintiffs are brothers but in fact they are not real brothers but they are brothers in relation and both families have their own separate ration-card. The first appellate Court affirmed the finding of the trial Court and dismissed the appeal of the appellants by the Judgment and decree dated 03.01.1981, hence this second appeal. .3. The following substantial questions of law were framed by this Court while admitting the appeal: .(i) Whether the learned lower Courts are right in holding that the defendant Radhakishan has sublet or parted with possession of the premises to defendant Motilal ? .(ii) Whether the learned lower Court is right in decreeing the suit on the ground of parting with of possession, when the issue raised was only regarding subletting and no subletting has been found proved by the appellate Court ? .4. According to the learned Cousel for the appellants, the plaintiffs only pleaded that the suit property was sublet to one Motilal whereas the plaintiffs have not pleaded that the said sublet is without consent and permission of the landlord. It is also submitted that since the plaintiffs failed to .prove that on what rent the suit property was let-out by the defendant No. 1 to defendant No. 2 then no case of subletting stands proved. It is also submitted that since the plaintiffs failed to .prove that on what rent the suit property was let-out by the defendant No. 1 to defendant No. 2 then no case of subletting stands proved. It is also submitted that as per the language of Sub-clause (e) of Sub-section (1) of Section 30 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Act of 1950) it is clear that no decree can be passed without pleading and proving the sub-letting and that sub-letting without permission of the landlord. It is also submitted that the suit was filed on the ground of subletting but at the most plaintiff can say that he proved the case of parting with possession. There is no pleading with respect to parting with possession of the property, therefore the Courts below committed error in decreeing the suit of the plaintiff . .5. The learned Counsel for the appellants relied upon the Judgment of the Honble Supreme Court in the case of Delhi Stationers and Printers vs. Rajendra Kumar, reported in 1990 (2) SCC 331 , wherein what is parting with possession has been considered by the Honble Apex Court with reference to Sub-clause (e) of Sub-section (1) of Section 13 of the Act of 1950 itself . The Honble Apex Court held that sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. .6. Learned Counsel for the respondents supported the Judgment s of the two Courts below. 7. I considered the submissions of learned Counsel for the parties and perused the record. It is clear form the pleadings itself that the plaintiffs has very specifically pleaded that the suit property was let-out to the defendant No. 1 and defendant No. 1 sub-let the property to the defendant No. 2 by using, the word “ ”. The plaintiffs further specifically pleaded that by this act the suit property on rent to the defendant No. 2 by saying that the defendant No. 1 is getting illegal benefit by his this act. The plaintiffs further specifically pleaded that by this act the suit property on rent to the defendant No. 2 by saying that the defendant No. 1 is getting illegal benefit by his this act. He also made it clear that the defendant No. 1 has not taken consent of the plaintiffs. The defendants submitted a written statement and took a plea that the defendant No. 1 did not sublet the shop to the defendant No. 2 and only defendant No. 1 is not sitting in the shop. In Para 15 of the written statement, the defendants submitted that the defendants are members of joint Hindu Family and both are doing business jointly. It was never the case of the defendants that the plaintiffs plaint lacks in pleading sufficient particulars about cause of action under Section 13 (1)(e) of the Act of 1950. 8. Be that as it may, the Court framed the issue about the sub-letting of the shop by the defendant No. 1 to defendant No. 2. Both the parties led evidence and thereafter, the issue was decided against the defendants by the trial Court as well as by the appellate Court, therefore, now the appellants-defendants cannot raise a plea about any lack of pleading about sub-letting. As stated earlier the pleading clearly discloses and made it known to the defendants that the plaintiffs case is that the defendant No. 1 sub-let the shop on rent to the defendant No. 2. Both the Courts below found that defendant No. 2 is in possession of the suit shop. The Honble Apex Court in the case of Delhi Stationers and Printers, 1990 (2) SCC 331 , held that mere occupation (by other person, other than tenant) is not sufficient to infer either sub-tenancy or parting with possession. In case in hand, the two Courts below found that the defendant No. 2 is in occupation of the suit premises and there is no plea of the defendant that defendant No. 1 kept the right to enter into the shop without permission of the defendant No. 2, person in occupation. In case in hand, the two Courts below found that the defendant No. 2 is in occupation of the suit premises and there is no plea of the defendant that defendant No. 1 kept the right to enter into the shop without permission of the defendant No. 2, person in occupation. This was not the case of the defendants even in alternate that in case it is found proved that defendant No. 2 is in occupation of the suit shop still the defendant No. 1 has right to enter into the suit shop without consent of the defendant No. 2 or defendant No. 2 is not in exclusive possession of the suit property. Therefore, in the facts of this case, the plaintiffs proved that rented property is in possession of other person and is not in possession of the tenant. There was no consideration or there was consideration for permitting other person to occupy the rented premises, the facts were in the knowledge of the defendants only and it is very difficult for landlord to gather any evidence of passing of any consideration between the tenant-in-chief and person in occupation. Therefore, in view of the above facts it cannot be said that the plaintiffs should have proved actual payment of rent by the defendant No. 2 to the defendant No. 1. If the plea of the defendants is considered then the defendants plea was that it was joint business of the defendant No. 1 with defendant No. 2 as he is his family member but that fact is wrong. This plea of the defendant No. 1 also substantially contradicted the defendants own plea taken in Para 5 of the written statement where the defendants jointly pleaded that the suit property is not in possession of defendant No. 2 but it is in possession of only defendant No. 1. 9. In addition to above, the defendants failed to prove joint business in the suit shop and also failed to prove their joint family. In view of the above, the two Courts below were right in holding that the defendant Radhakishan has sub-let and parted with possession of the premises to the defendant Motilal. The substantial question of law No. 1 is decided against the appellants-defendants and in favour of the respondents-plaintiffs. 10. In view of the above, the two Courts below were right in holding that the defendant Radhakishan has sub-let and parted with possession of the premises to the defendant Motilal. The substantial question of law No. 1 is decided against the appellants-defendants and in favour of the respondents-plaintiffs. 10. So far as, the question of sub-letting and parting with possession both are interlinked and sub-letting requires parting with possession for consideration of rent and when the plaintiffs fail in establishing the actual payment of receipt of the rent by the tenant-in-chief , then plaintiff can certainly get the decree on the ground of parting with possession because of the fact that in plea of sub-letting parting with possession of the rented premises is inherently included. 11. In view of the above reasons, the two Courts were right in decreeing the suit for eviction against the defendants, despite the fact that no separate issue for parting with possession of the suit property was framed by the trial Court. 12. In view of the above, I do not find any merit in this appeal and the same is hereby dismissed.