ivil Appeal No 3182 Of 1984
From the Judgment and Order dated 171
1984 of the Punjab and Haryana High Court in Civil Revision No 907 of 1977
Anil Dev Singh RC Misra and Dr Meera Aggarwal for the Appellant
Prem Malhotra for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
This appeaI by Special Leave is by a landlord and is directed against the judgment of the High Court of Punjab and Haryana in Civil Revision No 907 of 1977
In an eviction suit filed under Section 13 of the East Punjab Urban Rent Restriction Act 1949 for short the Act  against the tenant and the sub tenant Respondent 2 and 1 respectively in respect of two premises there was a compromise between the landlord and the tenant and in terms thereof the Rent Controller decreed the eviction of the first respondent from the premises sub leased to him
An Appeal to the appellate Authority proved of no avail and hence the first respondent filed Civil Revision No 907 of 1977 under Section 155 of the Act to the High Court
The High Court allowed the revision holding that no order of eviction can be passed under Section 132 of the Act as the sub tenancy had been created before the Act came into force in the Union Territory of Chandigarh where the property is situate
The High Court s order is challenged in this ap peal
The brief facts requiting notice may now be seen
The appellant landlord let out in the first instance a shop cum flat No 7 to the second respondent in 1963 and subsequently in 1967 he leased out the adjoining two flats also to him
The second respondent sub let the two flats to the first respondent
It is common ground that the sub letting was long prior to 411
1972 when the Act came into force in the Union Territory of Chandigarh
On March 8 1973 the appellant filed a suit and sought eviction of both the respondents on various grounds but all of them except the 194 ground of unauthorised sub letting were given up
The peti tion was contested by both the respondents
However at the stage of arguments the appellant and the second respondent entered into a compromise between themselves and in terms thereof the appellant gave up his claim for eviction of the second respondent from the shop cumflat in his occupation
Thereafter the second respondent conceded that he had sub let the two flats to the first respondent without the con sent of the appellant and hence an order of eviction con fined to the two flats sub leased to the first respondent may follow
An appeal to the Appellate Authority having failed the first respondent filed a revision to the High Court under Section 155 of the Act and succeeded in having the order of eviction set aside
Mr Anil Dev Singh learned counsel for the appellant sought to assail the order of the High Court on various grounds
The first ground was that when the second respond ent had admitted the factum of the unauthorised sub lease and when the Rent Controller and the Appellate Authority had acted on his admission the High Court was in error in interfering with the order of eviction concurrently passed by the courts below
This argument is devoid of merit be cause the admitted position is that the Act came into force in the area concerned only on 411
1972 whereas the sub lease had been effected much earlier
In view of that posi tion the High Court was entitled to set right the error committed by the Rent Controller and the Appellate Authority in ordering eviction under Section 132 of the Act
As a matter of fact the High Court was bound to set right the error in view of its own decision in Surjit Singh vs Rattan Lal AIR 1980 P  H 319 and this Court s decision in Gurcha ran Singh vs
VK Kaushal  In both these cases it has been laid down that an order of eviction cannot be passed under Section 132 of the Act if the sub letting was prior to the Act coming into force in the area con cerned
The second ground urged was an alternative plea and it was argued that even without reference to Section 132 of the Act the sub lease was not lawful because the lease deed entered into between the parties contained a clause inter dicting any sub lease without the written consent of the landlord
In other words the argument was that the sub lease was not lawful even under Section 108J of the Trans fer of Property Act because the lease deed contained a prohibition
We cannot countenance this argument for more than one reason
In the first place the lease deed has not been filed in court and marked as an Exhibit in evidence
Learned counsel stated that the lease deed was shown to the Rent Controller and the Appellate Authority but it was 195 not filed as an Exhibit because proceedings under the Act are not conducted in meticulous observance of the provisions of the Civil Procedure Code
We can hardly accept the expla nation given and act on the basis that a valid lease deed had been executed and it contained a contract to the con trary in so far as the tenant s right to sub lease is con cerned
It was then argued by Mr Anil Singh Dev that even if it is taken that there was no lease deed prohibiting the crea tion of a sub lease the sub tenancy had become unlawful from 24172 when the second respondent was served a notice of termination of tenancy issued by the appellant
This argument is also not tenable because the sub lease had been effected before the notice of termination of tenancy was issued
Hence the notice of termination
of tenancy subse quently issued would not make the sub lease created earlier unlawful in any manner
Another argument advanced was that a sub tenant does not have rights independent of the tenant and as such when the second respondent has suffered an order of eviction the first respondent was equally bound by the order
Three decisions were cited to fortify this contention viz Devara ja Bhatt vs
VS Raja  Ors AIR 1953 Madras 356 Vol
40 CN 122 Express Estates Ltd vs Modern Furnishing House AIR 1953 Madras 414 and GL Kapoor vs Ramesh Chander Nijha wan  Ors All India Rent Control Journal These authorities cannot advance the case of the appel lant in any manner
The sub tenancies which were respective ly imugned in the cited cases had come into existence after the Rent Control Act in the respective States had come into force and hence they are distinguishable on facts
As re gards the right of a sub tenant to file an appeal independ ently of the tenant this Court has ruled in Karam Singh vs Pratap Chand AIR 1964 SC 1305 that against a common decree of ejectment passed against a tenant and the sub tenant the sub tenant alone can appeal in his own right against the decree and have the same set aside even though the tenant decides not to file an appeal
There was also a contention that when there was a sur render of tenancy rights restricted to the two flats in question the first respondent is bound by the surrender and cannot claim sub tenancy rights any further
The contention is unsustainable for a host of reasons
A lease is a trans fer of a right to enjoy the property
It creates an interest in the property by virtue of the contract of lease which may be either oral or written
The interest created in the property can be put an end 196 to by terminating the contract
The contract however cannot be terminated in part
In this case though the two items of property were given on lease at different times the parties had treated the lease as a composite one and that was why a common notice had been issued for terminating the tenancy of both the items and furthermore a single petition had been filed under Section 132 to seek an order of eviction in respect of both the items of the lease property
The lessee has a right to transfer by sub lease even a part of his interest in the property as provided in Section 108j of the Transfer of Property Act
A transferee from the lessee has a right to claim the benefit of contract to the lessee s interest vis a vis the landlord vide Section 108 second paragraph of clause c of the Transfer of Property Act Thus a sub lessee who has obtained a part of the interest of the head tenant will be entitled to claim the benefit of the contract vis a vis the lessor as the lessee head tenant cannot surrender the lease in part
Section 111e contemplates a surrender of the entire inter est under the lease and not a part of the interest alone
Moreover a lease can be determined only by restoring pos session in respect of the entire property which was taken on lease see Section 108m
Section 115 of the Transfer of Property Act provides that the surrender of a lease does not prejudice an under lease of the property or in part thereof previously granted by the lessee
The lessee having parted with a part of the interest in the property in favour of the sub lessee cannot surrender that part of the property which is in the possession of the sub lessee for he cannot restore possession of the same to the lessor apart from the fact the he can terminate the contract of lease only as a whole and not in respect of a part of it
Having regard to all these factors even without going into the question of the partial surrender of lease being vitiated by collusion it is not open to the appellant in law to contend that the second respondent is entitled to and had validly surrendered a portion of the lease hold property and the first respondent being the sub tenant is bound by the surrender and should deliver possession
The last argument of the appellant s counsel was that the Act gives protection only to tenants and not to sub tenants against unreasonable eviction and hence the first respondent cannot claim protection under the Act from evic tion
Reference was made in this connection to Section 2ii of the Act which excludes a sub tenant from the definition of tenant
The argument stems from an erroneous assumption that the first respondent is seeking protection under the Act from being evicted
The true position is that the first respondent 197 has only taken the stand that the appellant is not entitled to evict him under section 132 of the Act since the sub lease in his favour had been created before the Act came into force
We are therefore of the view that none of the conten tions of the appellant has merit or substance
Consequently the appeal fails and is dismissed
The parties will howev er pay and bear their respective costs
APJ Appeal dis missed


Summary:
The appellant landlord first let out a shop cum flat to the second respondent tenant and subsequently leased out the adjoining two flats to him
The second respondent sub let the two flats to the first respondent sub tenant prior to the coming into force of the East Punjab Urban Rent Restriction Act 1949 in the area where the property is situate
The landlord filed a suit seeking eviction of both the respondents inter alia on the ground of unauthorised sub letting who contested the petition
However there was a compromise between the appellant and the second respondent the appellant giving up his claim for eviction of the second respondent from the shop cum flat in his occupation and the second respondent conceding that he has sub let the two flats to the first respondent without the consent of the appellant landlord
The Rent Controller passed an order of eviction of the first respondent from the two flats sub leased to him
An appeal to the Appellate Authority having failed the first respondent filed a revision under section 155 of the Act
The High Court allowed the revision set aside the order of eviction and held that no order of eviction can be passed under section 132 as the sub tenancy had been created before the Act came into force in the area where the proper ty is situate
In the appeal to this Court on behalf of the appellant it was contended i that when the second respondent had admitted the factum of the unauthorised sub lease and when the Rent Controller and the Appellate Authority had acted on his admission the High Court was in error in interfering with the order of eviction concurrently passed by 191 the Courts below ii that even without reference to section 132 the sublease was not lawful because the lease deed entered into between the parties contained a clause inter dicting any sub lease without the written consent of the landlord iii that the sub lease was not lawful even under section 108J of the Transfer of Property Act because the lease deed contained a prohibition iv that even if it is taken that there was no lease deed prohibiting the creation of a sub lease the sub tenancy had become unlawful from the date when the second respondent was served a notice of termina tion of tenancy by the appellant v that a subtenant does not have rights independent of the tenant and as such when the second respondent suffered an order of eviction the first respondent was equally bound by the order vi that when there was a surrender of tenancy rights restricted to the two flats in question the first respondent is bound by the surrender and cannot claim the sub tenancy rights any further vii and that the Act gives protection only to tenants and not to sub tenants against unreasonable eviction and hence the first respondent cannot claim protection under the Act from eviction
Dismissing the Appeal HELD 11 An order of eviction cannot be passed under section 132 of the East Punjab Urban Rent Restriction Act 1949 if the sub letting was prior to the Act coming into force in the area concerned
194F Surjit Singh vs Rattan Lal AIR 1980P  H 319 approved
Gurcharan Singh vs
VK Kaushal   relied upon
L2 In the instant case the sub lease had been effected before the notice of termination of tenancy was issued
The notice of termination of tenancy subsequently issued would not make the sub lease created earlier unlawful in any manner
195C 2
Against a common decree of ejectment passed against a tenant and the sub tenant the sub tenant alone can appeal in his own right against the decree and have the same set aside even though the tenant decides not to file an appeal
195F Devaraja Bhatt vs
VS Rala  Ors AIR 1953 Madras 356 Vol
40 CN 122 Express Estates Ltd vs Modern Furnish ing House AIR 1953 Madras 414 and GL Kapoor vs Ramesh Chander Nijhawan  Ors All India Rent Control Journal  referred to
192 Karam Singh vs Pratap Chand AIR 1964 SC 1305 followed
31 A lease is a transfer of a right to enjoy the property
It creates an interest in the property by virtue of the contract of lease which may be either oral or writ ten
The interest created in the property can be put an end to by terminating the contract
The contract however cannot be terminated in part
195H196A 32 In this case though the two items of property were given on lease at different times the parties had treated the lease as a composite one and that was why a common notice had been issued for terminating the tenancy of both the items and furthermore a single petition had been filed under section 132 to seek an order of eviction in respect of both the items of the lease property
196A B 4
In this case the lease deed has not been filed in Court and marked as an Exhibit in evidence
The explanation given by the appellant that the lease deed was shown to the Rent Controller and the Appellate Authority but it was not filed as an Exhibit because proceedings under the Act are not conducted in meticulous observance of the provisions of Civil Procedure Code cannot be accepted and the Court cannot act on the basis that a valid lease deed had been executed and it contained a contract to the contrary in so far as the tenants  right to sub lease is concerned
194G195A B 5
The lessee has a right to transfer by sub lease even a part of his interest in the property as provided in section 108J of the Transfer of Property Act
A transferee from the lessee has a right to claim the benefit of contract to the lessee s interest vis a vis the landlord
Thus a sub lease who has obtained a part of the interest of the head tenant will be entitled to claim the benefit of the contract vis a vis the lessor as the lessee cannot surrender the lease in part
Section 111e contemplates a surrender of the entire interest under the lease and not a part of the interest alone
Moreover a lease can be determined only by restoring possession in respect of the entire property which was taken on lease see 108m
196B D 6
Section 115 of the Transfer of Property Act provides that the surrender of a lease does not prejudice an under lease of the property or in part thereof previously granted by the lessee
The lessee having parted with a part of the interest in the property in favour of the sub lessee cannot surrender that part of the property which is in the posses sion of the sub lessee for he cannot restore possession of the same 193 to the lessor apart from the fact that he can terminate the contract of lease only as a whole and not in respect of a part of it
196D F