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2006 DIGILAW 2006 (RAJ)

Jamnalal v. Abdul Rehman @ Chittar

2006-06-02

VINEET KOTHARI

body2006
Judgment Dr. Vineet Kothari, J.-This second appeal of tenant is directed against the Judgment and decree of eviction granted by first Appellate Court dated 211.1993 whereby the Judgment and order of trial Court dated 17.09.1990 rejecting the suit was set aside. .2. The substantial questions of law framed at the time of admission of this appeal on 13.01.1997 are as under:- .(i) Whether the decree of eviction on the ground of subletting is perverse? .(ii) Whether the appellants ever transferred or handed over exclusive possession of the part of shop to the alleged tailor? 3. Since, the substantial questions of law framed by this Court are relating to ground of subletting only and the reversal by first appellate Court is also on that ground, the present second appeal of the tenant is to be decided on this ground alone. 4. The suit premises in question, a shop in two portions, one inner portion covered with stone pattis and other outer portion covered with tin-shed was given on rent to the defendant Jamnalal at monthly rent of Rs. 90/-on 111.1997 vide Exhibit-1 rent-deed. The suit was filed by the plaintiff-landlord on 04.02.1983 firstly on the ground of default and personal necessity, but lateron by amendment in the suit, the ground of subletting was also added. It was the case of landlord-plaintiff that the defendant-tenant had without permission of landlord gave part of shop to Chandalal son of Jagan Nath as sub-tenant and, therefore, he was liable to be evicted under Section 13(1)(e) of the Rajasthan Rent Control Act, 1950. 5. The learned trial Court rejected the suit finding that the exclusive possession of the portion of shop in question could not be said to have been given to the sub-tenant Chanda Lal. However the first Appellate Court reversed the said finding and decreed the suit for eviction by its Judgment dated 211.1993 holding that a part of shop was sublet to Chanda Lal without permission of the landlord for consideration and, therefore, the original tenant was liable to be evicted and the plaintiff was entitled to a decree of eviction in this regard. 6. Being aggrieved by the said Judgment of first appellate Court and decree of eviction on the aforesaid ground, the tenant is before this Court in the second appeal on the aforesaid substantial questions of law. 7. Mr. 6. Being aggrieved by the said Judgment of first appellate Court and decree of eviction on the aforesaid ground, the tenant is before this Court in the second appeal on the aforesaid substantial questions of law. 7. Mr. Mandhana, learned Counsel appearing for the appellant-tenant urged that neither the pleadings of the plaintiff in this regard in Para 3-A of the plaint were clear and while in the plaint, the plaintiff-landlord urged that the portion of shop was given to sub-tenant Chanda Lal; whereas in the statement of PW. 1 landlord Abdul Rehman himself as well as PW. 3 Chanda Lal, alleged sub-tenant, it has come that he was only working as tailor at the Thadi of the shop i.e., outer portion covered with tin-shed; therefore, according to him what was proved was not even contained in the pleadings. He further submitted that in the statements of landlord Abdul Rehman, it has come that he was an illiterate person and only knew Urdu language and, therefore, Exhibits 2,3,4 and 5, papers of diary in which entries relating to payment of rent by the sub-tenant were contained in the hand-writing of landlord Jamnalal in Hindi language could not be proved by the landlord Abudl Rehman. The landlord himself had admitted that said Chanda Lal was only sitting at Thadi, outside portion of shop and Exhibits 2, 3, and 4 were given to him by sub-tenant Chanda Lal himself whereas PW. 3 Chanda Lal in his statement has clearly denied the same. He further submitted that not only that it was not proved that exclusive possession of portion of shop was given to the sub-tenant Chanda Lal, but also allegation that it was for some consideration resulting into relationship of tenant-lessor and lessee was not proved before the trial Court and, therefore, the trial Court had rightly rejected the suit of the plaintiff and the same was wrongly reversed by the first appellate Court. He relies upon the Judgment of Honble Supreme Court in Benjamin Premanand Rawada (Dead) by Lrs. vs. Anil Joseph Rawade, 1999 (1) RCR 115 wherein the Honble Supreme Court laid down the two criterias for establishing the case of sub-tenancy (i) that sub-tenant was in exclusive possession of property in question and (ii) that between the sub-tenant and chief tenant there was relationship of lessee and lessor. vs. Anil Joseph Rawade, 1999 (1) RCR 115 wherein the Honble Supreme Court laid down the two criterias for establishing the case of sub-tenancy (i) that sub-tenant was in exclusive possession of property in question and (ii) that between the sub-tenant and chief tenant there was relationship of lessee and lessor. He also relies upon the Judgment of this Court in Amir Ahmed vs. Yusuf , 1985 RLR 718 wherein the Division Bench of this Court held that merely allowing another person to use premises or its part, and conversion of exclusive possession of premises by a tenant into joint possession with a third person, does not constitute parting with possession, under Section 13(1)(e) of the Act. Relying on the Judgment rendered in Dipak Banerjee vs. Smt. Lilabati Chakraborty, AIR 1987 SC 2055 , learned Counsel submitted that mere acceptance of service in lieu of right to occupy does not amount to acceptance of rent under Rent Act and no sub-tenancy is created in this manner. The facts before Honble Supreme Court in that case were also akin to the facts obtaining the present case namely an alleged sub-tenant was doing tailoring work in the portion of premises and was doing tailoring work for the landlord and others as well. Mr. Mandhana, therefore, submitted that even if it is assumed that said person Chanda Lal was allowed to do the work of tailoring on temporary basis sitting in the outside portion or tin-shed portion of the shop, the defendant-tenant cannot be said to have parted with possession and that too exclusive possession in favour of said sub-tenant and, therefore, the decree of eviction could not have been granted by the first appellate Court on this ground. 8. Countering these submission, Mr. J.P. Goyal, learned Counsel appearing for the respondent-landlord submitted that the statement of sub-tenant Chanda Lal is that he was sometimes paying monthly rent of Rs. 22/-and sometimes Rs. 24/-to the original tenant Jamna Lal has gone unrebutted and, therefore, the relationship of lessor and lessee between two was established and the said sub-tenant tailor having been allowed to use the front tin-shed portion of shop in question by the original tenant, the original tenant will be said to have given the exclusive possession of the said portion of shop to the sub-tenant coming within the mischief of Section 13(1)(e) of the Act. He relies upon the Judgment of Honble Supreme Court in Joginder Singh Sodhi vs. Amar Kaur, 2005 (1) SCC 31 and submitted that even proof of payment of monetary consideration is not a sine qua non to establish subletting and, therefore, assuming for arguments sake that payment of rent was not proved, since the tenant had parted with the possession in favour of sub-tenant Chanda Lal, that would be a good ground to evict him from the suit premises under Section 13(1)(e) of the Act. He also submitted that whether sub-tenancy was created or not is a finding of fact as held by this Court in the Judgment rendered in Jamna Lal vs. Purshottam & Anr., 2000 WLC (Raj) UC 108. 9. Having heard learned Counsel and upon perusal of the record including the statement of PW. 1 and PW. 3 and pleading of the suit, this Court is of the view that the present second appeal of the tenant deserves to be allowed. 10. Not only the landlord-plaintiff , for establishing a case of subletting, has to prove the exclusive possession of the alleged sub-tenant over the whole or part of the suit premises, but such possession should be proved to be exclusive possession of such sub-tenant. Secondly the consideration for the same in the form of relationship of lessor and lessee between the chief tenant and sub-tenant also has to be established. The decision of Honble Supreme Court in the case of Benjamin Premanand Rawade (Supra), reported in 1999 (1) RCR 115 is clear binding authority in this regard. In the present case, the plaintiff-landlord has failed to prove the exclusive possession of sub-tenant Chanda Lal over the portion of shop. Mere permissive possession or temporary possession with a permission to work as tailor in the outside portion of shop under tin-shed cannot be held to be on account of contract of sub-tenancy, nor the payment of Rs. 22/-or 24/-as stated in the statement of sub-tenant Chanda Lal is sufficient proof of establishing the relationship of lessor and lessee between two. Such payment could even be for user of premises by such person on a temporary basis for carrying on his business of tailoring. The original tenant, the defendant has clearly denied any such receipt of rent from the sub-tenant. Such payment could even be for user of premises by such person on a temporary basis for carrying on his business of tailoring. The original tenant, the defendant has clearly denied any such receipt of rent from the sub-tenant. The documents Exhibits-2, 3, and 4, alleged papers of diary showing the handwritten entries of payment of rent are also not proved. The very existence of these papers produced by the landlord alleged to have been given by the sub-tenant Chanda Lal is in doubt according to statements in the cross-examination of the said sub-tenant Chanda Lal, therefore, the factum of payment of rent by alleged sub-tenant is also not proved in the present case. The arguments of Mr. Goyal, learned Counsel for the respondent-landlord that only owner of the shop could have given license or permission to the said tailor and not the original tenant, is also devoid of merit. Section 53 of the Indian Easements Act, 1882 clearly stipulates that, “a license may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license.” Therefore, even if the possession of portion of shop by the said tailor is proved, the same could be under a license from the original tenant-defendant Jamna Lal. 11. Consequently, this Court find that the case of sub-tenancy has not been established by the respondent-landlord, the plaintiff in the present case and, therefore, the trial Court was justified in dismissing the suit on this ground and the first appellate Court has erred in setting aside the order of trial Court and awarding decree of eviction under Section 13(1)(e) of the Act and, therefore, Judgment and decree awarded by the first appellate Court on 211.1993 deserve to be set aside and the suit filed by the plaintiff deserves to be dismissed. The first substantial question is answered in affirmative and the second question is answered in negative. 12. Accordingly, this second appeal is liable to be allowed and same is allowed and the suit filed by the plaintiff is dismissed. No order as to costs.