JUDGMENT 1. - The plaintiff-appellant-landlord, a Deity known as 'Shree Ji Maharaj (Bhagwan)' through its Pujari, Vijay Narayan Pathak s/o Ratan Lal Ji Pathak has filed the present second appeal in this Court on 13.08.2001, aggrieved by the reversal of the eviction decree dated 06.08.1997 of the learned trial court in Civil Original Suit No. 78/1989 - Shriji Maharaj (Bhagwan) through Priest Vijay Narayan Pathak v. Shri Ramgopal & Ors. , by the learned appellate court, allowing the defendants' Civil Appeal No. 52/2000 - Shri Ramgopal & Ors. v. Shriji Maharaj (Bhagwan) through Priest Madanlal s/o Ratanlal Pathak on 08.05.2001 . 2. , by the learned appellate court, allowing the defendants' Civil Appeal No. 52/2000 - Shri Ramgopal & Ors. v. Shriji Maharaj (Bhagwan) through Priest Madanlal s/o Ratanlal Pathak on 08.05.2001 . 2. The learned trial court had decreed the eviction suit on 06.08.1997 inter alia filed on the ground of subletting of the demised premises, a Nohra situated adjacent to the Temple of the Deity of Shriji Maharaj (Bhagwan), the landlord, giving the following findings in favour of the plaintiff:- 27- fdjk;kukek izn'kZ&1 iathd'r fooknjfgr nLrkost gSA blh izdkj lk{; esa Hkh dqN rF; fooknjfgr rkSj ij izekf.kr ik, x, gSa ftlesa Lo;a Mh0M0&1 jkexksiky us ;g Lohdkj fd;k gS fd izn'kZ&1 ';ke lqUnj o jkexksiky ds O;fDrxr uke ls fy[kh gqbZ gS blesa la;qDr fgUnq ifjokj okyh ckr ugha fy[kh gqbZ gSA blh izdkj Mh0M0 fnus'k dqekj izfroknh dh Hkh ;g LohdkjksfDr gS fd vkt dh rkjh[k esa jkexksiky o ';ke lqUnj okyh ikVZujf'ki lu~ 1989 ls vfLrRo esa ugha gSA blh izdkj Mh0M0&3& jkt dqekj ds vuqlkj Hkh eq[; ijh{k.k esa ;g mYysf[kr gS fd ';ke lqanj us viuh iwath fnus'k dqekj dke djus yxk rc mBk yhA Mh0M0&4&';ke lqanj us Hkh eq[; ijh{k.k esa dgk gS fd fnus'k us mldh ikVZujf'ki dk iSlk ns fn;k rFkk vkbl QsDV~h dk dke fnus'k ns[kus yxkA blh dze esa ;g rF; Hkh egRoiw.kZ gS fd fnus'k dqekj okyh 'kadj vkbZl QsDV~h ds vHkh uEcj vkj0,l0Vh0] lh0,l0Vh0 vyx gSa vkSj ';ke lqanj jkexksiky dh 'kadj vkbl QsDV~h ds uEcj vyx FksA bldk Li"Vhdj.k fooknjfgr nLrkost izn'kZ 2 o izn'kZ 3 fcy@jlhn ls izekf.kr gksrk gSA gkykafd izfroknh lk{khx.k us vius tokc nkos ds leFkZu dk iw.kZ iz;kl fd;k gSA ysfdu vius vkidks vfo'oluh; djkj nsus ds igys Hkh dbZ rF; fojks/kkHkklh O;Dr fd, gSa ftuesa enu yky dh ekStwnxh esa caVokjk dk dFku mYysf[kr gSA ysfdu ;g Lohdkj fd;k x;k gS fd caVokjk enu yky ds thoudky esa gh muds iq=ksa esa gks x;k FkkA 28- mDr rF;ksa ds vuqlkj vc ;fn fdjk;k fpV~Vh iathd'r nLrkost izn'kZ 1 dk voyksdu fd;k tkos rks ;g ik;k tkrk gS fd fdjk;snkjh lk>snkjh ikVZuj QeZ jke xksiky ';ke lqanj dks oknh enu yky f}rh; i{k }kjk 10 o"kZ ds fy, 23-4-1983 dks nh xbZ FkhA tc izn'kZ 1 esa ;g 'krZ fooknjfgr gS fd ,d lk>snkj dh e'R;q ij fdjk;snkjh lekIr ugha gksxk vkSj mlds LFkku ij mlds okfjlku mRrjkf/kdkjhx.k o lk>snkjku ds e/; ;g yht MhM rjrhc gqbZ le>h tkosxhA bl rF; dk lh/kk rkRi;Z gS fd jke xksiky o ';ke lqanj tks fd ijekRek ds vk'khZokn ls vkt Hkh thfor gSa] fd e'R;q ij gh okfjlku dks lk>snkj QeZ esa tksM+ gks ldrk FkkA vFkkZr tc ewy lk>snkjku thfor gS rc nwljh ikVZujf'ki QeZ ubZ cukus dk rkRi;Z ewy fdjk;kukek dh 'krksZa dk mYya?ku gSA gkykafd jkexksiky ds firk vkSj fnus'k ds firk nksuksa ds firk enu yky FksA ysfdu enu yky }kjk QSDV~h dh [kjhn dh xbZ ,slk izn'kZ 1 esa mYysf[kr ugha gS tcfd izn'kZ 1 yht MhM iw.kZ:is.k fufoZokfnr nLrkost gS ftlds vuqlkj O;fDrxr gSfl;r ls gh fooknjfgr rkSj ij jkexksiky vkSj ';ke lqanj dks fdjk;s ij nh Fkh ftUgksaus QeZ ds :i esa ;g 'kadj vkbl QSDV~h lu~ 1983 ls pykbZ vkSj lu~ 1989 esa ;g ikVZujf'ki ewyr% fnus'k dqekj ds vkus ds ckn lekIr gks xbZA ;gkWa ;g Hkh fookn ;ksX; ugha gSA fd 'kadjyky bl ikVZujf'ki ls vyx gks x;kA ftls mldk fgLlk ns fn;k x;k vkSj crkSj fu"d"kZ ;g Li"V gS fd orZeku esa fookfnr ifjlj ij u;k O;fDr gh dkjksckj djrk gS ftldks fd izn'kZ 1 ds vuqlkj ;g ifjlj fdjk;s ij ugha fn;k x;k FkkA vFkkZr fojfpr fook|dksa esa rF;kRed rkSj ij ;g fLFkfr Li"V gks xbZ gS rc ,slh fLFkfr esa izfroknhx.k ds fo}ku vf/koDrk }kjk izLrqr fu.kZ; mudh drbZ lgk;d ugha gSA tSlkfd fo}ku vfHkHkk"kd us V~kalQj vkWQ izksiV~h ,DV laifRr gLrkarj.k vf/kfu;e dh/kkjk 111&th o 114&, dk mYys[k fd;k gS] og drbZ bl ekeys ds fy, ykxw ugha gS D;ksafd js.V daV~ksy vf/kfu;e ds ykxw gksus ds ckn vf/kfu;e ds ykxw lhek {ks= esa bl fookfnr ifjlj ds fy, i{kdkjku esa ;g fLFkfr js.V daV~ksy ,DV ds varxZr gh fu/kkZj.k ;ksX; gS ftlds lanHkZ esa ,0vkbZ0vkj0 1980 lqizhe dksVZ ist 1214 Li"V ekxZn'kZu iznku djrk gS ftlds vuqlkj izfroknh i{k dks nksgjh lqj{kk dk ykHk ugha fey ldrkA 29- pwafd fdjk;kukek@yht MhM i{kdkjku ds vf/kdkjksa dk leqfpr fu/kkZj.k djus ds fy, ewyHkwr vk/kkj gS ftlesa ifjfLFkfr;ksa esa fdlh izdkj dh [kkeh ryk'k djus dh vko';drk ugha gSA ;fn izn'kZ 1 esa ;g 'krZ ugha gksrh fd viuh ikVZujf'ki QeZ ds vfLrRo esa jgrs gq, fdlh vU; dks fdjk;s ij izfroknh la[;k 1 o 2 ugha ns ldsaxs] rc izfrokn i= ds vuqlkj ;g vkifRr leqfpr vkSj ;qfDr;qDr gks ldrh Fkh fd fdjk;kukek esa fdlh vU; dks 10 lky dh vof/k esa bl tk;nkn ds gLrkarj.k ij ikcanh dh 'krz ugha gSA rc ml fLFkfr esa fnus'k dqekj dks fookfnr tk;nkn ij cSBus dk vf/kdkj fof/klaxr gks ldrk Fkk vkSj mls nj fdjk;s ij ugha dgk tk ldrk FkkA ysfdu ewy 'krZ izn'kZ 1 yht MhM esa Li"V gS ftlds vuqlkj jkexksiky vkSj ';kelqanj ikVZulZ ds chp ;g fdjk;snkjh viSzy 1983 dks nh xbZ Fkh vkSj QeZ 1989 esa vFkkZr~ nkok nk;jh ds iwoZ vfLrRo esa ugha jgh rFkk fnus'k dqekj i'Fkd rkSj ij vius Lora= gSfl;r ls bl fookfnr ifjlj ij cSBrk gS rks fu%lUnsg mls oknh dk fdjk;snkj gksuk izn'kZ 1 ds vuqlkj ugha ekuk tk ldrkA ;gka ;g rF; Hkh mYys[kuh; gS fd izfroknh la[;k 3 fnus'k dqekj dh tk;nkn ij mifLFkfr dks Hkh fof/klaxr ekU; ugha ekuk tk ldrk D;ksafd oknh }kjk izfroknh la[;k 3 fnus'k dqekj dks ,slh dksbZ lgefr fyf[kr esa ugha nh xbZ gS vkSj ,0vkbZ0vkj0 1988 lqizhe dksVZ ist 145 esa izfrikfnr ekxZn'kZu ds vuqlkj tk;nkn Lokeh dh Lohd'fr Hkh fyf[kr esa fof'k"V rkSj ij gksuk pkfg, vkSj pwafd bl ekeys esa ,slh dksbZ fyf[kr gh ugha] cfYd fof'k"V rkSj ij lgefr ;k Lohd'fr oknh i{k dh vksj ls fnus'k dqekj ds i{k esa ugha nh xbZ gSA blfy, fnus'k dqekj dk fookfnr tk;nkn ij dkjksckj djuk izn'kZ&1 yht MhM dh 'krksZa ds iw.kZr fo:) gksus ls o fook|d la[;k 2 ds vuqlkj bl fookfnr tk;nkn ds lanHkZ esa nj fdjk, Sublet ij mi & fdjk;snkj ekuk tkrk gSA 30- bl izdkj rF;kRed foospu ds vuqlkj fook|d la[;k 1 o 2 oknh i{k esa c[kwch fd, tkrs gSa rFkk fook|d la[;k 4 rnuqlkj izfroknhx.k ds fo:) gh r; dh tkrh gSA vkns'k 36- oknh dk nkok fo:) izfroknhx.k e; [kpkZ fMdzh fd;k tkdj vkns'k fn;k tkrk gS fd okn&i= dh en la[;k 1 esa peuk ckoM+h ds ikl oknh dh mYysf[kr tk;nkn dks [kkyh dj 2 ekg dh vof/k esa izfroknhx.k oknh dks laHkyk,A izfroknh la[;k 3 ds fo:) ;g fu"ks/kkKk Hkh tkjh dh tkrh gS fd Hkfo"; esa fookfnr tk;nkn dk mi;ksx miHkksx Lo;a] ukSdjksa] ifjokj ds lnL;ksa ;k ,ts.Vksa ds tfj;s ugha djsxkA Sd/- ( fo".kq nRr 'kekZ ) flfoy U;k;k/kh'k o0[k0] 'kkgiqjk ( HkhyokM+k ) " 3. The defendants' appeal came to be allowed by the learned appellate court on 08.05.2001 with the following findings in favour of the defendants-tenants:- "Although no written partition deed has been produced in the in evidence but the oral evidence adduced by the defendants has not been rebutted by the plaintiff witnesses. But they have shown their ignorance about the family status of Dinesh Kumar and purchasing the ice factory from the funds of joint family property. The conditions of lease are written so the literal meaning of these conditions is very important with the intention of the parties while they enter into an agreement of lease. I gone through the lease deed and in the lease deed it is not essential that we may read in between the lines, but the document as stands today will be gone through as a whole. In the fourth line of the registered lease deed it has been specifically mentioned that Madanlal and Shyamsunder partners first party, this word includes their legal heirs, successors and digar muntjim i.e. Another concerned person will be deemed to have jointly executed this lease. It means this lease deed was executed as partners of Shankar Ice Factory and their legal heirs and another concerned persons are included as executant of this rent note. The pith and substance theory can be applied while dealing with the construction of such type of document and it is crystal clear from the very first four-five lines that this lease deed was executed actually in the name of Shyamsunder and Ramgopal in their individual capacity, but actually this was executed in the name of Shanker Ice Factory. They were not individual tenants but tenants as partners of Shankar Ice Factory. Had there been any intention of individual tenancy between the executor or executant? There would have been mentioned about the legal heirs, successors and other concerned persons who are said to be joint executant. The another concerned persons means the persons who will divolve an interest in this ice factory later on. This was within the contemplation of the parties, who had executed this lease deed. The learned lower court had ignored this aspect while interpreting the fourth line of this rent note Ex.1. The another concerned persons means the persons who will divolve an interest in this ice factory later on. This was within the contemplation of the parties, who had executed this lease deed. The learned lower court had ignored this aspect while interpreting the fourth line of this rent note Ex.1. The learned Civil Judge (Senior Division), Shahpura has also ignored the admitted fact in evidence by PW.1 Madanlal and PW.2 Satyabandhu that these premises was let out to Shankar Ice Factory. A categorical admission is on record in the sworn in statement of Madanlal and Satyabandhu. So the individual capacity of Shyamsunder and Ramgopal cannot be accepted and they have executed this lease deed on behalf of Shankar Ice Factory. The next point is about the conditions. As previously discussed in para no.11 clearly prohibits any act of subletting but there is specifically mention that if the first party i.e.defendants in relation to any business wants to run this factory in partnership, they can use this nohra in running this ice factory and this will not be treated as subletting. This document is binding on both the parties and while mentioning this fact that if the first party wants to run the ice factory business in partnership they can use it. It means they intended that actually the incoming partnership or any other person concerned with the partnership business can be a tenant and in para no.12, it has also been mentioned that in case of death of any tenant, the tenancy will not be terminated automatically but the present tenants will be replaced by their successors and partners and this lease deed will be deemed to have been executed between the landlord and the so called successor and intending partners. It means any partner join this partnership later on and he will be also treated as tenant. This para no. 11 if lease deed Ex.1 clearly reveals the intention of the executor and executant that this rent deed was not executed by Ramgopal and Shyamsunder in their individual capacity. This lease deed was actually taken by Shanker Ice Factory whosoever may be a partner or sole proprietor. Now I come to the status of Dinesh Kumar who is working in this ice factory as sole owner and proprietor and this fact is admitted. This lease deed was actually taken by Shanker Ice Factory whosoever may be a partner or sole proprietor. Now I come to the status of Dinesh Kumar who is working in this ice factory as sole owner and proprietor and this fact is admitted. This fact is admitted that Ramgopal and Dinesh Kumar are real brothers and the evidence may be either oral or documentary. Madanlal has purchased this factory as stated by Shyamsunder, an outgoing partner. He has stated on oath without any rebuttal that this property was purchased from Jamnalal. At the time of purchasing this ice factory property of four sons of late Shri Madanlal were living together. No contrary evidence has been adduced by the plaintiff side. Simply they have pleaded ignorance but this is not a rebuttal of defendant's evidence. So it is crystal clear that after the death of Madanlal, this property came in the share of Dinesh Kumar. So actually Dinesh Kumar is subsequent owner of this property and as per para no. 11 and four-fifth line of the rent deed Ex.1 he can be inducted as a partner I or sole proprietor of this ice factory and this tenancy cannot be terminated. The date as mentioned in para no. 12 of this rent deed Ex.1 includes dissolution. Although it has not been specifically mentioned but legal implication of such facts cannot be overlooked. This is the factual position established by the defendants in their favour and individual capacity of Ramgopal and Shyamsunder has not been established by the plaintiff as per the above discussion. On the basis of the above discussion, it is clear that Dinesh Kumar is owner of this factory and actually Shankar Ice Factory is tenant. As discussed above, in case of parting with exclusive possession of premises to another person is essential element of subletting. But close kith and kins in mess and living is deemed members of family and there is no subletting. It has been held by our Hon'ble Rajasthan High Court reported in 1971 RLW Page 64,. and also by Hon'ble Rajasthan High Court reported in AIR 1999 (Supreme Court) page 3087 and by our Hon'ble Rajasthan High court reported in AIR 2000 (Rajasthan) page 142. It has been held by our Hon'ble Rajasthan High Court reported in 1971 RLW Page 64,. and also by Hon'ble Rajasthan High Court reported in AIR 1999 (Supreme Court) page 3087 and by our Hon'ble Rajasthan High court reported in AIR 2000 (Rajasthan) page 142. Although the learned counsel for the respondent has cited AIR 1988 (Supreme Court) page 145 wherein Hon'ble Apex Court has held that consent of landlord must be in writing and must be to the specific subletting. Requirement that consent should be in writing cannot be regarded as directory as it is in public interest and such requirement cannot be waived. The learned counsel for the respondent has also cited AIR 1988 (Supreme Court) page 396 and argued that eviction sought on grounds of subletting and the lower court has come to the conclusion that the factum of subletting is established and in appeal the Appellate Court should not interfere with the finding of the lower court in absence of any perversity. The factum of parting with the possession is established. The only point is the relationship of brothers between the Ramgopal and Dinesh Kumar but subtenant terms means not only the parting with possession but there must be a vesting of possession by tenant in another person by divesting himself not only of physical possession but also of right to possession. He has cited Western Law Cases (Rajasthan) 1996 (1) page 536. Regarding the relationship of brothers, the learned counsel for the respondent has cited judgment of our Hon'ble Rajasthan High Court reported in AIR 2000 page 333 (Rajasthan), and argued that defendant/tenant Ram Gopal and subtenant Dinesh Kumar though brothers, but were living apart and there is a positive admission of sub-tenancy about transfer of possession exclusively. So the fact of parting with the possession permanently is established. The learned counsel for the respondent has cited 1965 (Supreme Court) page 414 and RLW 1965 page 197 and argued that the business of Dinesh Kumar is separate from Ramgopal and it amounts to sub-letting. Principle laid down in this has not been disputed, but the facts of this case are quite different and the nature of the tenancy created in the present suit is relating to Shankar Ice Factory. Principle laid down in this has not been disputed, but the facts of this case are quite different and the nature of the tenancy created in the present suit is relating to Shankar Ice Factory. The possession has not been parted with for consideration which is an essential element of subletting, but the owner Dinesh Kumar has possessed this factory as an owner. The Shankar Ice Factory is actually a tenant and sole proprietor of Shankar Ice Factory is Dinesh Kumar. A person at one time cannot be main tenant as well as sub-tenant. So these rulings are not applicable to the present facts of this appeal. Hon'ble Rajasthan High Court has clearly held that exclusive possession for consideration within the meaning of Clause E of sub-section 1 of Section 13 of the said Act lies on the landlord. Further liability of entailing eviction under Section 13(i)(e) of the Act on the ground "otherwise parting with the possession" is expendable to strangers parting exclusive possession for consideration who are neither heirs nor family members of the tenant referred to under sub-clause A within the meaning of sub-clause B of Clause (vii) of Section 3 of the said Act. It is admitted that Ramgopal has not parted with the exclusive possession for consideration. Parting with possession for consideration is another important element for subletting. Whether Dinesh Kumar is neither heir nor family member of tenant Ramgopal. The Hon'ble Rajasthan High Court has held that in such cases brother of the tenant are not stranger but the family of original tenant. Hon'ble Rajasthan High Court has held that their exclusive possession over the premises in dispute let out to him for pecuniary benefits, the decree for eviction passed against him within the meaning of clause (E) of sub-section 1 of Section 13 would not be sustainable. It is more so when the landlord also failed to adduce an iota of evidence to establish that the tenant was living separately from his real brother and other family members and, therefore, Ramgopal's brother Dinesh Kumar was not members of joint Hindu family. On the contrary, they have pleaded ignorance but the defendants have established this fact by adducing cogent and convincing evidence that Madanlal, Ramgopal, Rajkumar and Dinesh Kumar having a joint family status during the lifetime of Madanlal and later on separated. On the contrary, they have pleaded ignorance but the defendants have established this fact by adducing cogent and convincing evidence that Madanlal, Ramgopal, Rajkumar and Dinesh Kumar having a joint family status during the lifetime of Madanlal and later on separated. This property was purchased from the funds of the joint family property by 'karta' of Hindu undivided joint family late Shri Madanlal. In this manner, subletting has not been established by the plaintiff. Be that as it may, we may assume for the sake of arguments that Ramgopal has parted with the exclusive possession of this premises to Dinesh Kumar. But the main element of subletting is that such subletting took place without the permission of the landlord. Whether the landlord has granted permission of such subletting? The term 'consent' has a wider meaning which include oral and in writing. Where non-consent is pleaded by the landlord in cases of parting with possession, it means without written consent. But this clause does not speak of the previous permission of the landlord, thus, a subsequent rectification of the transfer of sub-let of the premises may of liability of tenant from eviction. The law requires the consent of landlord from subletting by the tenant. I do not mean that such consent of the landlord must be obtained prior to the subletting. In the absence of the word 'previous consent' the subletting can be subsequently rectified by the landlord, as held in 1971 RCJ page 241. Next question is whether implied consent can be inferred? The consent of subletting is not established from the mere fact that the landlord has realised the rent after subletting in the absence of proof that landlord had, than the clear knowledge of such sub-lease. 1969 WLN page 17 (Supreme Court) is very clear on this point. The fact that the subletting by tenant was within the knowledge of the landlord who kept silent for 2-3 years or so effect of inaction and acquiescence of landlord who took no step to eject tenant. It must be held that it has not been proved that such parties alleged to have been subletting without the consent by landlord by the tenant, to the sub-tenant is without the landlord's consent. It must be held that it has not been proved that such parties alleged to have been subletting without the consent by landlord by the tenant, to the sub-tenant is without the landlord's consent. From the evidence as discussed above, it is admitted that Dinesh Kumar paid the rent even of the time when Ramgopal and Shyamsunder was tenant and Satyabandhu has admitted that the plaintiff Madanlal accepted that rent and cheque was encashed. Dinesh Kumar was looking after this factory and it is alleged that he is a trespasser. This suit was instituted in the month of December, 1988. Dinesh re-employed and upto the season of ice i.e.summer season of year 1989 his services were terminated. It means he worked as minim with Dinesh Kumar, and he was residing with his grandfather. The rent was paid regularly by Dinesh Kumar. They have accepted this rent and this shows a clear acquiescence of the landlord that they have consented this act of subletting and this rectification clearly reveals the consent and acceptance as discussed above clearly reveals the consent and acceptance of this so called subletting. So, on this ground the tenant or subtenant has the possession cannot be evicted. The learned lower Court's appreciation is not at par with the established legal as well as factual position. Actually this property was leased out to Shankar Ice Factory and Dinesh Kumar owned by Shankar Ice Factory. The landlord has acquiesced and gave consent by accepting the tenancy of Dinesh Kumar. So, issue no.2 and 4 are decided in favour of the defendants and against the plaintiff. The learned lower Court's judgment is liable to be set aside as having erroneous appreciation of law as well as factual aspect." 4. A coordinate Bench of this Court initially dismissed the present second appeal by a short order on 03.09.2001, which is quoted herein below:- "Heard learned counsel for the appellant. In view of the statement of P.W.1 and 2 if read together, it is a clear case where the plaintiff can very well be said to have acquiesced in the alleged subletting or parting with the possession in favour of respondent No.3. Thus irrespective of anything else even in view of this sole ground I don't find the appeal to be involving any substantial question of law requiring interference in the dismissal of the suit. The second appeal is, therefore, dismissed. Thus irrespective of anything else even in view of this sole ground I don't find the appeal to be involving any substantial question of law requiring interference in the dismissal of the suit. The second appeal is, therefore, dismissed. Sd/- (N.P. GUPTA),J." 5. However, the plaintiffs Civil Appeal No. 6549/2002 - Shree Ji Maharaj v. Ramgopal & Ors. came to be allowed by the Hon'ble Supreme Court on 14.07.2010 and by passing the following order, the matter was remanded back to this Court for hearing and deciding it afresh in accordance with law:- "ORDER The appellant/landlord instituted a suit for eviction of the respondents-tenants from the demised premises on the ground of sub-letting. The trial court upheld their case and granted a decree of eviction. In appeal, however, the appellate court set aside the judgment passed by the trial court and dismissed the appellant's suit. The appellant's second appeal against the judgment of reversal was dismissed by the High Court in limine briefly referring to the statements of Pws. 1 and 2. The High Court order dismissing the second appeal is as follows:- "Heard learned counsel for the appellant. In view of the statement of P.W.1 and 2 if read together, it is a clear case where the plaintiff can very well be said to have acquiesced in the alleged subletting or parting with the possession in favour of respondent No.3. Thus irrespective of anything else even in view of this sole ground I don't find the appeal to be involving any substantial question of law requiring interference in the dismissal of the suit. The second appeal is, therefore, dismissed. We have gone through the statements of Pws. 1 & 2. We do not find anything in the deposition of PW 1 that could be said to be prejudicial to the appellant's case. In the deposition of PW 2 there is indeed some statement of which the respondents/tenants may try to take some advantage. But it is not something that would justify the dismissal of the appeal in this manner. We feel that the appeal raised certain questions of law that should have received a proper consideration by the High Court. We accordingly, set aside the High Court order and remand the mtter to it for fresh consideration of the second appeal, in accordance with law. Sd/- (Aftab Alam), J. Sd/- (R.M. Lodha), J." 6. We feel that the appeal raised certain questions of law that should have received a proper consideration by the High Court. We accordingly, set aside the High Court order and remand the mtter to it for fresh consideration of the second appeal, in accordance with law. Sd/- (Aftab Alam), J. Sd/- (R.M. Lodha), J." 6. Thereafter, a co-ordinate Bench of this Court on 30.10.2013, framed the following substantial question of law for consideration by this Court:- vk;k&izFke vihyh; U;k;ky; }kjk izR;FkhZ la[;k 3 fnus'k dqekj dks fookfnr lEifRr esa lk>snkjh ds dze esa vf/kdkj izkIr gksus ds dkj.k lcysVh mi& fdjk;snkj ugha ekuus ds dze esa ikfjr fu.kZ; vikLr fd;s tkus ;ksX; gSA English Translation of the aforesaid substantial question of law:- "Whether the first appellate court was justified in holding the defendant No. 3-Dinesh Kumar became a partner in the Firm, and therefore, there was no subletting, and thus, whether the order of the first appellate court impugned deserves to be set aside or not." 7. Learned counsel for the plaintiff-appellant, Mr. Sandeep Saruparia urged that the appellate court has gone wrong in assuming that the defendant No. 3-Dinesh Kumar s/o Late Madan Lal Agarwal had entered into any partnership with his brother, defendant No. 1-Ramgopal s/o Late Madan Lal Agarwal, and actually on account of the family partition, the ice factory, known as 'Shankar Ice Factory' set up in the demised premises, a Nohra upon such partition in the family of the defendants, came in the share of the defendant No. 3-Dinesh Kumar and this partition could not be treated as a partnership of defendant No.3-Dinesh Kumar with defendant No.1-Ramgopal, and therefore, Clause 11 of the lease deed dated 23.04.1983 executed by defendant No. 1-Ramgopal s/o Late Madan Lal Agarwal and defendant No. 2-Shyam Sunder s/o Ramswaroop Agarwal, the landlord, could not confer any right of tenancy in favour of the defendant No. 3-Dinesh Kumar s/o Late Shri Madan Lal Agarwal, and therefore, the learned trial court was justified in granting the eviction decree on this ground under Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, whereas the learned appellate court erred in reversing the same, and therefore, the present second appeal deserves to be allowed and the eviction decree of the learned trial court deserves to be upheld. 8. 8. On the other hand, Mr.Vikram Rajpurohit and Mr.Vipul Dharnia appearing on behalf of Mr.Ravi Bhansali, learned counsel for the defendant-respondents-tenant urged and vehemently argued that a wholesome reading of the lease deed in question would entitle the defendant No. 3-Dinesh Kumar also to succeed-in-interest in the rights of tenancy and in the absence of any subletting by the original tenants-Ramgopal and Shyam Sunder in favour of the defendant No.3-Dinesh Kumar having been proved by the plaintiff-appellant, the eviction decree could not have been granted in the present case. They also urged that the grandson of the landlord, namely, Satyabandhu s/o Vijay Narayan was an employee of the defendant's Firm itself and he in his statement before the learned trial court had admitted that there was no sub-tenancy created by the original tenants Ramgopal and Shyam Sunder in favour of the defendant No.3-Dinesh Kumar. They also submitted that there was an implied consent on the part of the landlord to the tenancy of the defendant No. 3-Dinesh Kumar, as he accepted payment of rent from him, even after such partition in the family of the defendants in the year 1989, and therefore, the eviction decree on the ground of subletting cannot be sustained and the appellate court was justified in reversing the same. Therefore, they urged that the substantial question of law framed above, deserves to be answered in favour of the respondents and the present appeal deserves to be dismissed. 9. I have heard the learned counsels for the parties at length and perused the record. 10. Therefore, they urged that the substantial question of law framed above, deserves to be answered in favour of the respondents and the present appeal deserves to be dismissed. 9. I have heard the learned counsels for the parties at length and perused the record. 10. The preamble of the lease deed in question dated 23.04.1983 executed by Ramgopal s/o Late Madan Lal Agarwal and Shyam Sunder s/o Ramswaroop Agarwal, including clauses 11 & 12 referred to by the learned counsels is considered appropriate and the same is quoted below for ready reference:- AAJh jkethAA ;g yht MhM vkt fnukad 23-04-1983 dks Jh jkexksiky firk Jh enuyky th o ';ke lqUnj firk Jh jkeLo:i th vxzoky fu0 'kkgiqjk ikVZuj lk>snkj izFke i{k ftl 'kCn esa muds okj'kku mRrjkf/kdkjh ,oa fnxj eqatfte lkfey lets tkosaxs ,oa Jh enuyky th firk Jh jruyky th ikBd fu0 'kgiqjk f}rh; i{k ftl 'kCn esa buds okjh'kku mRrjkf/kdkjh ,oa fnxj eqarfte lkehy lets tkosaxsA 11- fd izFke i{k bl uksgjk dks fdlh vU; dks fdjk;s ij ugha ns ldsaxsA vxj izFke i{k vius O;kikj ds laca/k esa fdlh ds lk>s esa pykos rks ;g uksgjk dke esa ys ldsaxs] ;g nj fdjk;k ugha le>k tkosxkA 12- fd i{kdkjku esa fdlh dh Hkh e'R;q vof/k ds iwoZ gks tkus ij fdjk;snkjh lekIr ugha le>h tkosxh vkSj muds LFkku ij muds okj'kku mRrjkf/kdkfj;ku o lk>snkjku ds e/; ;g yht MhM rjfrc fn;k gqvk le>k tkosxkA 11. This Court has also gone through the statement of PW-2 Satyabandhu s/o Shri Vijay Narayan Pathak. The aforesaid grandson of the landlord, who worked as Munim in the defendant's ice factory and also the statement of DW-3 Dinesh Kumar s/o Late Madan Lal Agarwal himself, but could not find any admission of the said Munim, Satyabandhu, who was produced as plaintiff's witness to the effect that there was no sub-tenancy created by Ramgopal and Shyam Sunder in favour of defendant No. 3-Dinesh Kumar. Even otherwise, the statement of Minim/accountant without authority, expressed or implied, in this regard could not bind the plaintiff and no implied consent as required under Section 13(1)(e) of the Act of 1950 could be inferred on that basis. On the other hand, the defendant No. 3- Dinesh Kumar himself clearly admitted the subletting in his statement recorded by the learned trial court on 27.07.1995 that there was no partnership of him with Ramgopal and Shyam Sunder. On the other hand, the defendant No. 3- Dinesh Kumar himself clearly admitted the subletting in his statement recorded by the learned trial court on 27.07.1995 that there was no partnership of him with Ramgopal and Shyam Sunder. On the other hand, he stated that in the year 1989, there was a partition of the joint family property and the said Ice Factory came to his share and he compensated the outgoing partnership, Shri Shyam Sunder, and thereafter, started and continued the said Ice Factory as his sole proprietorship concern. He specifically denied in his cross-examination any partnership with defendant No. 1-Ramgopal. He also clearly stated that there was no fresh lease deed executed in his favour by the plaintiff-landlord. 12. In view of the aforesaid, the contention raised by the learned counsels for the defendants-respondents-tenants in the present appeal, that Dinesh Kumar otherwise also succeeded to the interest of the lessee, who executed the lease deed Ex. 1 dated 23.04.1983 upon partition in the year 1989 and defendant No. 3- Dinesh Kumar would automatically became a tenant with the consent of the landlord given in the said lease deed, this argument is not sustainable in law. The partition of the joint family property, which of course did not include the demised premises under the said lease deed dated 23.04.1983 was neither the property of the joint family of the respondents, nor could be subjected to any such partition, nor the tenancy in question could be said to be a joint family property, which was subject matter of the said partition in the year 1989 in the family of the defendants or the legal heirs of Late Shri Madan Lal Agarwal. The said lease deed was executed only by defendant No. 1-Ramgopal and defendant No. 2-Shyam Sunder in favour of the landlord and clause 11 of the lease deed reproduced above, only made an exception for the continued tenancy without there being any subletting, if a new person was inducted as a partner by way of partnership deed. The present is a case, admittedly not of a partnership, but of a partition in the family of Late Shri Madan Lal Agarwal. Clause 12 of the lease deed dated 23.04.1983, also is not applicable to the facts of the present case, as no succession upon the death of the original tenant is claimed by the defendant No. 3-Dinesh Kumar. 13. Clause 12 of the lease deed dated 23.04.1983, also is not applicable to the facts of the present case, as no succession upon the death of the original tenant is claimed by the defendant No. 3-Dinesh Kumar. 13. Admittedly, from the evidence on record, there was at no point of time, either expressed or implied consent to the change of constitution or change of composition of the tenants business known as 'M/s. Shankar Ice Factory'. The contention of the learned counsels for the defendants-respondents-tenants for drawing an inference for such implied consent is not found to be a sustainable argument. Therefore apparently, the parting with the possession of the demised premises, a Nohra was without the consent of the landlord. Parting with the said possession is clearly a mischief of Section 13(1)(e) of the Act of 1950. The other contention of the learned counsel for the defendants-respondents-tenants that no evidence was led by the plaintiff to establish such subletting, as no rent was shown to have been paid by the defendant No. 3-Dinesh Kumar to the defendants No. 1 & 3-Ramgopal and Shyam Sunder, is also an argument not worthy of acceptance. It is not necessary for the plaintiff-landlord to prove any such actual payment of rent by the sub-tenant to the original tenant. Section 13(1)(e) of the Act of 1950 giving rise to the ground of eviction, in all the three contingencies, namely, assignment subletting or otherwise, part with the possession, are bound by the condition "without permission of the landlord". Therefore, the consent and permission of the landlord is a sine qua non for not invoking the said provision under Section 13(1)(e) of the Act of 1950 for seeking eviction by the landlord. In the present case, this Court finds that the assignment of interest in the Nohra by the defendants-respondents-tenants-Ramgopal and Shyam Sunder was also amounting to, "otherwise parted with the possession or" of the demised premises, without the permission of the landlord. Thus, the present case clearly falls within the mischief of Section 13(1)(e) of the Act of 1950. In the present case, this Court finds that the assignment of interest in the Nohra by the defendants-respondents-tenants-Ramgopal and Shyam Sunder was also amounting to, "otherwise parted with the possession or" of the demised premises, without the permission of the landlord. Thus, the present case clearly falls within the mischief of Section 13(1)(e) of the Act of 1950. The learned first appellate court clearly fell into an error in assuming it to be a case of partnership and in holding that there was no assignment, subletting or otherwise parting with the possession by the original tenants in favour of the defendant No. 3-Dinesh Kumar irrespective of the fact that, whether he was real brother and member of the defendant's No. 1 family, both being sons of Late Madan Lal Agarwal, it does not enure to the benefit of the defendant No.3- Dinesh Kumar on this ground. The parting with the possession even in favour of a real brother does not take it out of the ambit and scope of Section 13(1)(e) of the Act of 1950. 14. Therefore, in the considered opinion of this Court, the present appeal of the plaintiff-appellant-landlord deserves to be allowed, and the same is allowed and the substantial question of law framed above deserves to be answered in favour of the plaintiff-appellant-landlord and the same is accordingly so answered. No costs. 15. In the circumstances, it is directed that the respondents-defendants-tenant shall hand over the peaceful and vacant possession of the suit property in question to the appellant-plaintiff on or before 31.12.2016 and shall pay mesne profit @ Rs. 5,000/- per month (Rupees Five Thousand only) commencing from the month of January, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellant/plaintiff also and in case there is any default in payment of mesne profit, the period of One Year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent/defendants/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the appellant/plaintiff within three months from today, otherwise the same will bear interest @9% per annum. The respondent/defendants/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the appellant/plaintiff within three months from today, otherwise the same will bear interest @9% per annum. The respondent/tenant shall also not sub-let, assign or part with the possession of the suit shop 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 defendants-tenants 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 premises is not handed over to the appellant-plaintiff within a period of One Year from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.Appeal dismissed. *******