JUDGMENT 1. (Oral) - The plaintiff-appellant LRs. of Budhmal and Manak Chand have filed the present first appeal under Section 96 C.P.C. on 25.8.1992 being aggrieved by the dismissal of their eviction suit by the learned Dist. Judge Churu vide judgment dated 6.7.1992 passed in Civil Suit No.12/1982-Budhmal and Manak Chand, both sons of Suganchand v. Radha Kishan S/O Pema Ram Bhat and Sanwar Mal S/O Hanuman Mal by caste Soni, who was represented by his LRs. at the time of rejection of the suit. 2. The eviction suit was filed in respect of suit shop situated at Sardarshahar, Dist. Churu on 6.5.1982 and the plaintiffs came with the case that about 13-14 years ago in the year 1968-69, the shop in question was let out to the defendant No.1 Radhakishan at the monthly rent of Rs. 30/- and Ex.2 rent-note dated 28.8.1969 and Ex.3 rent note dated 22.8.1970 was executed by Radha Kishan in favour of the plaintiffs. With effect from 13.10.1972, the rent was increased to Rs. 35/- per month on account of oral agreement between the parties. It was further averred in the plaint that the rent at the aforesaid rate was paid by the defendant No.1 Radha Kishan upto 28.3.1997 and thereafter neither any rent was paid to the plaintiffs nor the same nor the same was deposited in the Court. 3. The plaintiffs further averred that the defendant No.1 Radha kishan has sublet the said shop to the defendant No.2 Sanwar Mal S/o Sh. Hanumanmanl without consent of the landlord and said sublettee has further caused material alterations in the suit shop by breaking the window on the western side and converting it into a door and has also constructed a Pucci Bhatti for his business and has also opened ventilators on the western side which amounted to material alterations causing damage to the suit property. Initially the sublettee Sanwar Mal was not arrayed as defendant in the suit. However, upon the order passed by this Court in a Revision Petition No.398/1982 on 20.12.1982, the said defendant no.2 Sanwar Mal was impleaded as defendant and he filed amended written statement to the said eviction suit and contested the suit. Initially the sublettee Sanwar Mal was not arrayed as defendant in the suit. However, upon the order passed by this Court in a Revision Petition No.398/1982 on 20.12.1982, the said defendant no.2 Sanwar Mal was impleaded as defendant and he filed amended written statement to the said eviction suit and contested the suit. The defendant No.1 Radha Kishan however filed a written statement agreeing with the averments made in the plaint that he was originally tenant of the landlord and he had sublet the said shop to the defendant no.2 Sanwar Mal. 4. The learned trial Court below after discussing the evidence on record dismissed the suit of the plaintiff and found that defendant No.2 Sanwar Mal was an independent tenant of the landlord and therefore, no ground of subletting was made out. The issue of material alteration in the suit property was also decided in favour of the defendants - tenants. 5. Being aggrieved by the said rejection of the suit, the plaintiffs-appellant landlords have preferred the present first appeal. 6. Mr. G.L. Khatri and Mr. Anil Khatri on behalf of the plaintiffs-appellants have argued that the learned court below has clearly erred in rejecting the suit inasmuch as there was no rent note or tenancy agreement between the landlords and defendant No.2 Sanwar Mal and the suit was filed on behalf of the plaintiffs by their General Power of Attorney holder Mr. Bheem Ram Soni (P.W.1), who was their brother-in-law (sister's husband) as landlord Budhmal and Manak Chand were residing in Kolkata for their business and for looking after their property at Sardarshahar, Dist. Churu, they had given general power of attorney to Bheem Raj, their brother-in-law, which was duly registered on 20.7.1973. He also submitted that on the basis of document Ex.A1/A produced by the defendant No.2 Sanwar Mal showing payment of Rs. 728/-, which is purportedly signed by the power of attorney holder Bheem Raj, receiving the said amount from the defendant No.2 Sanwar Mal, no independent tenancy can be inferred in favour of Sanwar Mal. He submitted that P.W.1 Bheem Raj Soni in his cross-examination before the Court on 23.7.1987 has clearly stated that the said amount of Rs. 728/-, which is purportedly signed by the power of attorney holder Bheem Raj, receiving the said amount from the defendant No.2 Sanwar Mal, no independent tenancy can be inferred in favour of Sanwar Mal. He submitted that P.W.1 Bheem Raj Soni in his cross-examination before the Court on 23.7.1987 has clearly stated that the said amount of Rs. 728/- was paid by Sanwar Mal on behalf of original tenant Radha Kishan saying that tenant Radha Kishan had given this amount to him to be made over to P.W.1 Bheem Raj Soni on behalf of the landlords as Radha Kishan had gone for some business to Chennai. The said P.W.1 Bheem Raj has also stated in his statement that Sanwar Mal has since died and before his death, he had made substantial and material alterations in the suit property for which photographs Ex.13, 14 and 15 produced by the plaintiffs were proved by him. The landlord denied any tenancy in favour of Sanwar Mal independently and stated that Sanwar Mal was doing business with his father Hanumanmal at the shop just opposite the suit shop. 7. Mr. G.L. Khatri, learned counsel for the plaintiffs, therefore, urged that the learned trial court below has wrongly held that there was no subletting or parting with possession of the suit shop by the defendant No.1 Radha Kishan in favour of defendant No.2 Sanwar Mal without the consent of plaintiff landlord. He submitted that no written agreement or written consent in favour of Sanwar Mal was available on record to infer any independent tenancy. Mr. Khatri also urged that after the death of Sanwar Mal, admittedly, his LRs. have failed to establish any tenancy as none of them have stated that they were doing business in the ordinary course in the said shop with Sanwar Mal prior to his death and therefore, none of them can be construed to be "tenant" of the said shop under Section 3(vii) of the 1950 Rent Control Act and therefore, the eviction decree deserves to be passed in favour of the plaintiffs. 8. Drawing the attention of the Court towards the statement of D.W.2 Rameshwar Lal produced by the defendant tenant himself, Mr. 8. Drawing the attention of the Court towards the statement of D.W.2 Rameshwar Lal produced by the defendant tenant himself, Mr. Khatri stated that D.W.2 Rameshwar Lal himself has admitted that the shop in question was sublet by Radha Kishan to Sanwar Mal and similarly, D.W.6 Chhotu Lal employee of defendant No.2 Sanwar Mal himself, aged 68 years in his statement dated 8.11.1990 had also stated that the suit shop was given on rent to Radha Kishan at monthly rent of Rs. 30/- per month initially through him only. In his cross-Examination, D.W.7 Surajmal Swami also stated that after the death of Sanwar Mal, none of his family members sit at the suit shop in question and one Tara Chand looks after some business there. 9. Therefore, Mr. G.L. Khatri, learned counsel for the appellants-plaintiffs submitted that the ample evidence was available on record to prove the factum of subletting by the original tenant - defendant No.1 Radha Kishan in favour of defendant No.2 Sanwar Mal, since deceased, and yet the learned court below has refused to grant eviction decree on the said ground. Relying upon the decision in the case of Smt. Krishna Kumari v. State of Rajasthan reported in 1998(2) RLW 583 , he therefore, submitted that the eviction decree deserves to be granted. 10. On the other hand, Mr. A.K. Rajvanshy, learned counsel appearing for the respondents-defendants LRs. of Sanwar Mal submitted that there was clear admission on behalf of the power of attorney holder Bheem Raj in Ex.A1/A that he had received rent from Sanwar Mal. He also urged that Ex.A/19, letter written by Sanwar Mal on 10.4.1982 to Landlord Budhmal at Kolkata also indicated that the said defendant No.2 Sanwar Mal had written said letter as tenant of plaintiff landlord at Rs. 35/- per month and for removal of grill from the window and opening the door, he stated in the said letter that there was consent on the part of the landlord and grill removed can be handed over either to the landlords or to anybody else named by them. Mr. A.K. Rajvanshy, therefore, submitted that since this registered letter was never replied by the landlord Sh. Budhmal, it should be inferred that they had consented not only to his independent tenancy in favour of the defendant No.2 Sanwar Mal, but also consent for material alteration should be inferred. Mr. A.K. Rajvanshy, therefore, submitted that since this registered letter was never replied by the landlord Sh. Budhmal, it should be inferred that they had consented not only to his independent tenancy in favour of the defendant No.2 Sanwar Mal, but also consent for material alteration should be inferred. Mr.A.K. Rajvanshy relied upon the decision of Vidhyadhar v. Mankikrao reported AIR 1999 SC 1441 for drawing such adverse inference and decision of Hon'ble Supreme Court in the case of Adivekka v. Hanamavva Kom Venkatesh reported in AIR 2007 SC 2025 . 11. I have heard the learned counsels at length and perused the evidence on record and judgment under appeal and case laws cited at the Bar. 12. Having heard the learned counsels, this Court is of clear and firm opinion that the present first appeal filed by the plaintiff landlord deserves to be allowed and the findings of the learned trial Court below are not sustainable. 13. As far as sub-tenancy is concerned, the evidence referred by the learned counsel for the respondents Mr.A.K. Rajvanshy vide Ex.A1/A, a copy of note-sheet mentioning therein certain money receipts by Bheem Raj P.W.1 including Rs. 728/- from Sanwar Mal Soni is not at all the proof of any independent tenancy created in favour of said Sanwar Mal Soni. The said receipt of amount from Sh. Sanwar Mal Soni has been clearly explained by P.W.1 Bheem Raj in his statement before the Court that same was paid on behalf of the original tenant Radha Kishan and Sanwar Mal paid that amount with clear statement that the same is being paid as handed over to him by Radha Kishan who had gone to Chennai. Admittedly, the rent note was in favour of defendant No.1 Radha Kishan only who had paid rent to the landlord for the considerable period from 1968-69 upto 1977 for more than 10 years before subletting the shop in question to the defendant No.2 Sanwar Mal. The subsequent payment made on behalf of Radha Kishan does not create any tenancy in favour of sublettee defendant No.2 Sanwar Mal. 14. The reliance placed by the learned counsel for the respondents Mr. A.K. Rajvanshy on Ex.A/19 letter dated 10.4.1982 is also misplaced. No negative or adverse inference can be drawn against the plaintiffs landlords on account of not replying to the said letter of the defendant No.2 Sanwar Mal. 14. The reliance placed by the learned counsel for the respondents Mr. A.K. Rajvanshy on Ex.A/19 letter dated 10.4.1982 is also misplaced. No negative or adverse inference can be drawn against the plaintiffs landlords on account of not replying to the said letter of the defendant No.2 Sanwar Mal. Firstly, it is not even established by the defendant No.2 that the said letter was served upon the landlord Budhmal at Kolkata. Whether the same was sent by the registered AD post or by ordinary post is also not established. No postal receipt or AD receipt is produced by the said defendant No.2. Ex.A/19 dated 10.4.1982 is merely a carbon copy of alleged letter of Sanwar Mal Soni. Even otherwise, a perusal of the said letter shows that said defendant No.2 clearly avoided specifically stating in first para that he was tenant of the shop in question. The name of Radha Kishan has also been deliberately avoided in the said letter. Then in second para, it makes an averment that the defendant No.2 Sanwar Mal's father Hanumanmal met the landlord Budhmal in February, 1982 at Kolkata and who gave such oral consent for opening of door in the shop and the grill removed upon such alteration is lying to be delivered to the landlord or to the person named by them. The said letter also does not prove anything in support of the defendant No.2 Sanwar Mal that any independent tenancy on that basis or consent for material alteration can be inferred against the plaintiffs. 15. On the other hand, this Court finds considerable force in the submission of the learned counsel for the plaintiffs-appellants Mr. G.L. Khatri that the original tenant defendant No.1 Radha Kishan had parted with possession of the suit shop in favour of defendant No.2 Sanwar Mal without the consent of the landlord. No such written consent has been produced nor any or oral consent or implied waiver has been proved. Power of attorney holder Mr. Bheem Raj P.W.1 on the other hand has clearly stated in his statement before the learned Trial Court that there was no tenancy in favour of defendant No.2 Sanwar Mal and the arrears of rent of Rs. 728/- was paid on behalf of Radha Kishan and mere entry in Ex.A1/A does not create any tenancy in favour of Sanwar Mal. Bheem Raj P.W.1 on the other hand has clearly stated in his statement before the learned Trial Court that there was no tenancy in favour of defendant No.2 Sanwar Mal and the arrears of rent of Rs. 728/- was paid on behalf of Radha Kishan and mere entry in Ex.A1/A does not create any tenancy in favour of Sanwar Mal. Moreover, after death of Sanwar Mal in absence of any evidence showing his LRs. to be doing business in the ordinary course with him since prior to his death, no tenancy can be said to have been inherited by the LRs. and they cannot fall within the definition of "tenant" as defined under Section 3(vii) of the Rajasthan Rent Control Act, 1950. 16. As far as material alterations in the shop are concerned, in the own admission of defendant No.2 in the letter Ex.A/19 dated 10.4.1982, he had changed window into a door and opened two ventilators in the shop. This alteration is sufficient to construe it as material alteration and finding of the learned Court below that same did not amount to material alteration is perverse and deserves to be reversed. The same is accordingly reversed. 17. Thus, this Court is satisfied that on the basis of these evidences, the findings of the learned trial Court against the plaintiffs landlords deserve to be reversed being not sustainable. They are consequently reversed regarding both the issues of subletting and material alterations and it is found that not only the defendant No.1 Radha Kishan has sublet the suit shop in question to the defendant No.2 Sanwar Mal, without the consent of the landlords and thus parted with the possession of suit shop, but the said sublettee had also caused material alterations in the suit shop without the consent of the landlord. The plaintiffs-landlords are, therefore, entitled to a decree of eviction against both the defendants 18. Accordingly, the present first appeal of the plaintiffs-landlords is allowed and the judgment of the learned trial Court dated 6.7.1992 dismissing the eviction suit is set aside with costs, which are quantified at Rs. 5000/-. 19. The respondents-defendants - tenants shall hand over the peaceful and vacant possession of the suit property viz. Accordingly, the present first appeal of the plaintiffs-landlords is allowed and the judgment of the learned trial Court dated 6.7.1992 dismissing the eviction suit is set aside with costs, which are quantified at Rs. 5000/-. 19. The respondents-defendants - tenants shall hand over the peaceful and vacant possession of the suit property viz. shop in question to the appellants -plaintiffs or their General Power of Attorney Holder P.W.1 Bheem Raj within a period of six months from today i.e. on or before 28th February, 2013 and shall pay mesne profit Rs. 2,000/- per month commencing from September, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellants also and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendants shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The tenants shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The respondents -defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the appellants -landlords within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellants-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.Appeal allowed. *******