ivil Appeal No 2747 of 1988
From the Judgment and Order dated 2321988 of the Rajasthan High Court in SB Civil Second Appeal No 77 of 1987
Tapas Ray SK Jain and P Agarwal for the Appellant
Mrs Rani Chhabra for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This appeal by special leave is against the judgment and order of the Division Bench of the High Court of Rajasthan dated 23rd February 1988
The appellant is the tenant in the suit premises
The premises in question is a shop situated outside Delhi Gate Udaipur in the State of Rajasthan
In the said shop the appellant carried on the business of opticals
This fact is undisput ed
He asserted that he was also running the business of advertisement by way of display of various advertisements hoardings 771 boards at various places in the city of Udaipur
The case of the appellant was that though the appellant had taken the premises on rent on the basis of oral tenancy on 1st August 1971 the rent note in fact was executed on 30th May 1972
The respondent had filed the suit for eviction of the ten ant appellant on three grounds namely i that the tenant appellant had parted with possession of the roof of the said shop room by putting up an advertisement board ii by putting up such advertisement board fixing the same on the roof of the said shop room with iron angles the appellant had caused material alteration to the premises and iii the appellant had defaulted in payment of rent
On or about 20th April 1978 the trial court decreed the suit on the ground of default in payment of rent material alter ation and subletting
The appellant preferred an appeal before the learned District Judge Udaipur who remanded the case back to the trial court for trial on all the three issues on the ground that the appellant had not been al lowed to cross examine the respondent or to adduce evidence in defence
On remand the trial court held that the appel lant had caused material alteration by fixing the board on
the roof had parted with possession of the roof by such fixing of the board and had committed default in payment of rent
Accordingly a decree was passed against the appellant for causing material alteration and for parting with the possession of the roof but no decree was passed by the trial court on ground of default because the said default was held by the learned Trial Judge to be the first default
The appellant thereafter filed first appeal against the said judgment and decree passed by the trial court on 9th Novem ber 1984
By the judgment and decree dated 20th March 1987 the learned District Judge allowed the said appeal holding inter alia that by displaying the advertisement board the appellant had not caused any material alteration of the premises and display of such advertisements hoardings did not amount to parting with possession of the roof of the premises
In respect of default on an analysis of the dates of payment it was held that there was no default in payment of rent for six months
The learned Trial Judge had held that the default was the first default therefore there could be no decree for eviction on this ground
So even if the learned District Judge would have affirmed the findings of the Trial Court on the issue of default there could not have been a decree in the said suit on the ground of de fault
The plaintiff respondent preferred an appeal before the High Court
The said appeal was allowed only on the issue of parting with possession holding that the display of the board amounted to parting with possession of the prem ises
Accordingly the decree for eviction under section 131e of the Rajasthan Premises Control of Rent and Eviction Act 1950 hereinafter mentioned as the Act  was passed
772 Section 13 of the said Act deals with the grounds for evic tion of tenants
By clause a sub section 1 of the said section provides that out withstanding anything contained in any law or contract no Court shall pass any decree or make any order in favour of a landlord evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable under the said Act unless it is satis fied inter alia that the tenant had neither paid nor tendered the amount of rent due from him for six months
Sub clause b of subsection 1 of the said section makes the tenant liable to eviction if he has willfully caused or permitted to be caused substantial damage to the premises
Clause e of sub section 1 of section 13 under which the decree in question in the instant case was passed provides as follows e that the tenant has assigned sub let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord or as mentioned hereinbefore the decree in this case was passed by the High Court under section 131e of the Act on the ground that the appellant had parted with possession
The High Court in the judgment under appeal has noted that the plaintiff appellant had not disputed that the advertise ment board was installed on the roof of the shop
The High Court noted that the appellant has also not disputed that he was getting the rent for this board and the document which was tendered viz Exhibit 6 showed that the Paramount Services had written a letter to the landlord respondent Gulam Abbas herein and the same had been accepted by the appellant
The said exhibit 6 read as follows Shri Gulam Abbas Bhalam Wala Udaipur
Dear Sir We wish to write that we have taken the site for putting up commercial board on the terrace of the shop of Saran Optician Udaipur
This site is with us for the last 12 year
Yours faithfully Paramount Serv ices Sd Partner   773 The High Court was of the view that perusal of the document indicated that Paramount Services had installed that board on the terrace of the shop and the site was with them for the last six months
The High Court further held that it transpired that the terrace of that shop had been parted away to the Paramount Services for installing the advertise ment board
The High Court proceeded on the basis that exhibit 6 mentioned hereinbefore showed that the site was with the Paramount Services and it has been admitted by the tenant appellant that he had charged the money for leasing out this site to the Paramount Services
According to the High Court two factors were relevant in this case 1 whether the site was with the Paramount Services for the last six months and 2 that the defendant had admitted that he had received the rent for this
The High Court referred to the deposition of D W 1 Gopal Saran which was as follows USS BOARD PAR PRACHAR KE TEEN SALL KE PARDRAH SAU RUPAYE MAIN LETA THA JISMEN PAINTING AUR BOARD AUR LIKHAVAT KA KHARCH MERA THA According to the High Court these two factors established that the defendant had parted with part of the terrace to Paramount Services
This according to the High Court was wrong as it had been clearly prohibited in the lease deed exhibit 1 Clause 3 reads as under DUKAN KO LIPA POTA SAPPH ACHHI HALAT MEN RAKHUNGA AUR BAGAIR LIKHIT IJAZAT AAPKE KOI MAJID TAMIR NA KRAUNGA AUR NA DUSRE KISSI AUR KO MUNTKIL KAR SAKUNGA
MAIN KHUD DUKAN PAR BAITHUNGA
 The High Court found that the tenant appellant had mentioned that they would not part with the possession notwithstanding that the tenant appellant had parted with the possession which was apparent according to the High Court from exhibit 6 and the statement of DW 1 that he had charged rent for installing this board
These two factors went to show according to the High Court that the defend ant had parted with the possession of the part of the ter race so as to enable the Paramount Services to stall the board in the premises
The Court accepted the submission on behalf of the respondent landlord that there was parting with possession and the landlord was entitled to a decree for eviction under section 131e of the Act
It may be mentioned that two other submissions were urged before the High 774 Court on behalf of the landlord respondent namely that the rent was tendered and that when it was refused by the land lord the tenant had deposited the rent in the Court under section 19 A of the Act had not been established
There was also the finding on the issue of material alteration and that was also not established by the respondent landlord
But the High Court in view of this finding under section 131e of the Act as set out hereinbefore found it unnecessary to go into those reasons and passed a decree for eviction
Aggrieved thereby as mentioned hereinbefore the tenant has come up in appeal to this Court
We find a certain amount of confusion as to what was the actual state of affairs
The pleadings of the plaintiff respondent the landlord in connection with the allegations of parting with possession are set out in paragraphs 5 6 and 8 of the plaint and these have been answered by the appellant in paragraphs 5 6 8 and 9 of the written state ment
It may be appropriate at this stage to set out the same both in Hindi as well as in English
Paragraph 5 is as follows Hindi Original 5
YEH KI PRATIVADI NE BINA VADI KO POOCHHE AVAM VADI KI ANUMATI PRAPAT KIYE BINA VIVADGRAST DUKAN KE UPAR CHHAT PAR ZITAR TRAKTAR KA BOARD LAGA DIYA HAl JO CHHAT PAR LOHE KE ANGLE MAIN FIX KIYA HUVA HAI In English 5
Without permission and consent of the plaintiff the defendant has put up the board of Jitter Tractors on the roof of the disputed shop in question which is fixed on iron angles on the roof  Paragraph 6 reads as under In English 6
The defendant has without the permission and consent of the plaintiff given to the advertising agency the Board which has been displayed on the roof of the disputed shop taken by the Defendant from the Plaintiff on rent in 775 respect of which the Defendant had no right  Hindi Original 6
YEH KI BOARD JO VIVADGRAST DUKAN JO KI PRATIVADI KE PASS VADI KI AUR SE KIRAYE PAR HAl KI CHHAT PAR LAG RAHA HAl VAH VIGYAPAN ADVERTISEMENT KA BOARD HAI JISKO PRATIVADI NE VADI KI ANUMATI PRAPAT KIYE BINA ADVERTIS ING AGENCY KO LAGANE DE DIYA HAl JISKA KI PRATIVADI KO SWATEY KOYEE ADHIKAR NAHIN HAl  Paragraph 8 as reads as under In English 8
The defendant has no right to place the Board of the Advertising Agency on the roof of the shop without permission of the plaintiff Hindi Original 8
YEH KI PARTIVADI KE KO BINA VADI SE POCCHHE DUKAN KI CHHAT PAR ADVERTISING AGENCY KO BOARD LAGANE DENE KA KOYEE ADHIKAR NAHIN HAI
 Paragraph 5 of the Written Statement reads as follows In English 5
With regard to paragraph 5 of the Plaint the defendant states that the Defendant had displayed a sign board on the roof of the disputed shop but it is false to state that any angle has been fixed or embedded on the wall of the shop or of the roof or on the floor of the roof
The sign board has been placed without damaging the walls or the floor of the roof in any manner whatsoever
The angles have not been embedded
In putting up this sign board there was no necessity of obtaining written permission of the plaintiff
It was within the full knowledge of the Plain tiff and the Plaintiff never objected to the same which means the 776 plaintiff had consented to the same Hindi Original 5
VAD PATRA KE PAIRA 5 KE LIYE NIVEDAN HAI KE PRATIVADI NE EK SIGN BOARD VADGRAST DUKAN KI CHHAT PAR LAGAYA HAl PAR YEH MITHYA HAl KI DUKAN KI ATHVA CHHAT KI DIWAR ATHVA FARSH MAIN ANGLE LAGAYE HO VAH SIGN BOARD BINA DUKAN KI DIWARON ATHVA CHHAT KE FARSH KO KISI BHANTI HANI PAHUCHAE HUVE LAGAYA GAYA HAl
GADA NAHIN GAYA HAI
IS SIGN BOARD LAGANE MAIN VADI KO LIKHIT ANUMATI LENA AVASHAK NAHIN THA VIASE VADI KE PURAN GYAN MAIN YEH BOARD LAGAYA THA TATHA AISA KARNE MAIN VADI NE KABHI APATTI NAHIN UTHAYEE ARTHAT VADI KI AWAKRITI NAHI HAI
 Para 6 of the written Statement reads as follows In English The allegations in paragraph 6 of the Plaint that the Board belonged to any other advertis ing agency is false
the defendant himself has placed the said board in the normal course of his carrying on the business
The defendant is using the said disputed shop on his own right for the purposes of carrying on his normal business Hindi Original 6
VAD PATRA KA PAIRA 6 MAIN YEH MITHYA HAI ICE BOARD KISI ADVERTISING AGENCY KA LAGA HUVA HAI
PRATIVADI SWAM NE VAH BOARD LAGAYA HAl TATHA APNA SADHARAN VAVASAYE KARTE HUVE LAGAYA HAl
TATHA VADGRAST DUKAN KA PANE SADHARAN VAVSAYE MAIN HI UPYOG KAR RAHA HAl AVAM SADHI KAR KAR RAHA HAI
 Para 8 of the Written Statement is as follows 777 In English The Contents of para 8 of the Plaint are not admitted
The Defendant has not allowed any body to put up the Board but he has himself put up the same
 Hindi Original 8
VAD PATRA KA PAIRA 8 SAVIKAR NAHIN HAl
PRATIVADI NE BOARD KISI KO LAGANE NAHIN DIYA HAl APITU SWAM LAGAYA HAl
 Paragraph 9 of the Written Statement is as follows In English 9
The defendant denies all the allegations in paragraph 9 of the Plaint
In particular the defendant states that the plaintiff has no right to bring the present suit of eviction which has been filed on false grounds
The defendant has neither committed default in payment of rent nor he has allowed anybody to put up board on the shop nor he has parted with possession of the lease hold property or any part thereof to anybody
The defendant is in full control and possession of the disput ed shop
It may be mentioned that in the plaint the plaintiff has not alleged any act of sub letting by the defendant Hindi Original 9 VAD PATRA KA PAIRA 9 SARVATHA ASWIKAR HAl
VADI KO KOYEE SWATAV NAHIN HAl KI VAH MITHYA ADHARO PAR DUKAN KHALI KARVAYE NA TO PARTIVADI NE KOYEE CHOOK KI HAl KIRAYA DENE MAIN UAR NA HI USNE DUKAN PAR KISI KO BOARD LAGANE DIYA HAl AUR NA HI KOYEE MUKTI BHOG KIRAYE LI HUEE SAMPATI KA PARTIVADI KE KISI BHI BHAG KA KISI KO BHI HYA HAl
VAH PRATIVADI KE POORAN BHUGTI BHOG MAIN HAl
 At the initial hearing before the trial court namely before the remand the plaintiff got himself examined as witness and the evidence 778 of plaintiff in examination in chief was recorded on 641979
After recording the said evidence the trial court recorded that the counsel for the defendant was absent and thereupon closed the case without however entering into the question as to why the endorsement was made
Against the decree of the trial court the first appeal was filed before the learned District Judge and as stated hereinbefore at the final hearing of the appeal the first Appellate Court held that the defendant was not given adequate opportunity to either cross examine the plaintiff or to adduce his evidence and on that ground the order of remand was made
The plaintiff landlord however did not say in Examination in chief that the board was fixed by anyone else than the defendant or that there was parting with possession of the roof of the shop room or any part thereof or by putting the said angles in the wail which was again not admitted as correct by the appellant any material altera tion was made
However a photograph of the board was pro duced by the plaintiff and the same was marked as exhibit 2
After the case was remanded the trial court directed the plaintiff to appear before the court and to subject himself to cross examination by the defendant and also to produce his evidence if any
In spite of several opportunities the plaintiff did not appear before the Court and submit himself to cross examination
As the plaintiff neither submitted himself for further cross examination nor produced any other evidence or witness in support of the plaint the defendant led defence evidence and got himself examined
The English translation of the said evidence of the defendant appellant was filed on behalf of the appellant at the heating of this appeal
From the said evidence it would appear he had stated inter alia as follows a I have affixed the Board on this shop for advertisement
The said Board is affixed in cement pillars should be pot and for affix ing the said boards neither the roof nor the walls of the shop were dug b The Board is affixed permanently and I advertise the business of parties and get its payment
I have not parted with possession of any portion of the roof of the shop to anyone
In 1974 I advertised for Bhatia at the Board in which I have written that I have zeator I have strength a picture tractor was also made there I used to take Rs 1500 for 3 years for advertisement out of which painting of Board writing expenditure was mine
779 CROSS EXAMINATION a It is wrong to say that the Board is fixed on the roof of the shop
I do not do business of tractor but I deal in advertising busi ness
Besides this I maintain 14 others boards in the city
The above board is 10 ft
x 4 ft
At present Hanuman Vanaspati is advertised through the Board which was for the last 2 months prior to the Board was affixed
b 14 Boards of Paramount Services are fixed prior to the year 1988 which are being main tained by me
exhibit 6 is the letter of the said service
I charge Ms Paramount Services Rs500 per year
 On the basis of the aforesaid it was contended that it was the definite case of the defendant in Examination in chief that the board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff
It may be mentioned that the plaintiff had not subjected himself to crossexami nation in spite of the order of the Court after the remand therefore it would not be safe to rely on the examination in chief recorded which was not subjected to cross examina tion before the remand was made
If that is so it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint
This position appears estab lished from the facts on record
When the plaintiff appeared for evidence in rebuttal he could have been cross examined on these points
It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the Plaintiff had not chosen to support his plaint case before the defendant went to the witness box
There was no question of cross examining the plaintiff travelling beyond the evidence of the plaintiff given in examinationin chief and thereby giving an opportunity to make out a case in crossexamination
It therefore appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with posses sion by putting up the hoarding
In examinationin chief also he did not make out such a case and on the contrary his case was that it was that it was the defendent appellant who had put up the hoarding
The plaintiff did not allege that the defendant appellant was not carrying on also advertising business
It was submitted on behalf of the appellant that having refused to submit to crossexamination the plaintiff has made the evidence in examination in chief non est
It was the case of the defendant that he was carrying on 780 the business of advertisement by putting up the hoardings of different parties
The board was made by him paintings and writings were also done by him and for putting the hoarding the charged from his customers
Therefore it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else
It was however argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indi cate that there was parting of possession by him
It was however submitted on behalf of the appellant that when the shop had been let out to the defendantappellant for carrying on business it was the fight of the defendantappellant to carry on the business
It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession
In the premises it appears to us that for the purpose of disposal of this appeal it is necessary to consider i whether the appellant was carrying on his own advertisement business ii Even if so whether such an act can be termed as parting with possession of the roof or any part thereof by the appellant in favour of the advertiser because by putting up such hoarding he is getting a return otherwise iii The next question that arises is that if it is found that it was not a business of the appellant to carry on the advertising but the appellant had allowed up advertising agency to put up its advertising hoarding then would such an act amount to parting with possession of the roof or any part thereof by the appellant iv In any event can any case or cause of action for the suit filed on 1974 on the basis of exhibit 6 namely the letter dated January 20 1977 of Ms Paramount Services be maintained On behalf of appellant it was contended by Shri Tapash Ray counsel for the appellant that the judgment and order of the High Court could not be sustained and in the facts and circumstances of the case there could not be any evic tion order passed against the appellant by virtue of section 131e of the Act
Undisputedly the appellant was a ten ant
Therefore in terms of Section 131 of the Act not withstanding anything contained in any law no decree for eviction can be passed except on the grounds mentioned in the said section
To sustain any order of eviction it must be rounded only on one of the grounds mentioned in the said section
Therefore it has to be found out whether the respondent had been able to make out any of the grounds mentioned in Section 13 of the Act
781 It was contended on behalf of the appellant that the advertisement board had been put up by the appellant as part of his business and he had charged certain expenses in respect of the same and that it was urged was the finding of the courts below and the High Court was in error in holding that there was any parting with the possession
It was submitted that simply the display of advertisement board on the disputed premises did not amount to parting with possession of the premises
The High Court was wrong it was urged in accepting the plea of the respondent of parting with possession only on the basis of the letter dated 20th January 1977 exhibit 6
The learned District Judge in the first appeal had accepted that there was no parting of possession
The High Court on the other hand in the judg ment in appeal relying on exhibit 6 came to the conclusion that the appellant was getting rent for this board and the appel lant had accepted document exhibit 6 which Paramount Services had written to the appellant
The High Court was wrong it was submitted on behalf of the appellant that exhibit 6 clearly showed that Paramount Services had installed this board on the terrace of the shop and the shop was with them for six months
The learned District Judge on an analysis of the evidence came to the conclusion that there was no parting with possession
The High Court on an analysis of the same evidence came to the conclusion that there was
It is therefore necessary as the learned District Judge did to consider what was the evidence before the trial court
The plaintiff had given a statement before the trial court that a board of Paramount Advertising Agency was fixed over the disputed shop which was installed without asking him and that was of the size of 10  x 8 
At the time of filing the suit there was board of Zitter and now it is of Maharaj Vanaspati
After making holes in the wall it had been fixed with cement with the help of iron angles
On the other hand the defendant Gopal Sharan had stated that he had fixed the board of advertisement over the disputed shop which was fixed with cement by boring holes
For fixing the board the walls had not been dug
The board had been fixed on a tempo rary place on which he used to make advertisement of the business of the parties on payment
It was the definite case in defence of the tenant that roof of the disputed shop has not been given to anyone
In cross examination he admitted that in 1974 advertisement of Shri Bhatia was done on the board and for the advertisement of board he took Rs 1500 for three years
The expenses towards the painting and fixing the board and writing were met by him
The board of his shop was fixed below the front of his shop in the name of Sharan Optician the photo of which is exhibit 2
The tenant had given the receipt of Rs 1500 to Bhatia
It was the definite case of the tenant that he dealt with the business of advertisement and there were 14 more boards in 782 the city run by him
It was stated that he took Rs500 per year for 15 boards from Paramount Services
In the photo graph exhibit 2 one board of the defendant was fixed in the name of Sharan Optician on the disputed shop and above it there was advertisement board which was of a tractor and fixed in front of the roof
The tenant had clearly stated that while fixing the board he did not bore the roof and the same had been fixed with the help of cement
On the other hand it was stated by the landlord that it was fixed in the wall with the help of angles but this fact has not been supported by any other evidence
The learned District Judge came to the conclusion that the board was fixed to the front of the side of the roof of the disputed shop
The roof of the disputed shop had not been bored nor any holes had been made in the wall
In these circumstances the learned Dis trict Judge came to the conclusion that there was no altera tion of the premises or damage
The learned DistriCt Judge considered the question and the arguments that the defend ant appellant was not doing the work of advertisement and he had the business of spectacles and he had let out the space on rent for fixing the board on the roof and that he had got a board fixed there from which it was clear that he had parted with the possession of the space on the roof and he had further given it on rent
Emphasis was laid on behalf of the respondent landlord on exhibit  it may be men tioned is subsequent to the accrual to the cause of action
The suit was filed in is dated 20th January 1977
Considering the aforesaid contentions and the position in law the learned District Judge came to the conclusion that by exhibit 6 no portion of the disputed shop was given to the exclusive possession of the advertising agency or the defendant had not divested itself of any part of the roof
Simply by displaying the advertisement board on any portion of the roof it could not be said that the possession had been delivered to the company to which the board belonged according to the learned District Judge
He further held that the tenant continued to be in possession thereof
In such circumstances it cannot be proved on the basis of the record the learned District Judge came to the conclusion that the tenant had parted with the possession
In this connection it may be appropriate to refer to the deposition of Gopal Saran the defendant appellant before the trial court
He had stated that he had put up his board on the shop for advertisement purpose
The board had been put in cement pillars and by putting up the said board neither the roof nor the wall had been dug
The board it was stated was permanently fixed and the tenant asserted that I advertise the business of the parties from time to time on payment
I have not parted with the possession of the shop or of the roof or any 783 part thereof
 The tenant further stated that in 1974 I advertised for Bhatia on this board in which I had written that I have zeator I have strength a picture tractor was also made there
I used to take Rs 1500 for three years for advertisement out of which painting of board writing ex penditure was mine
The board of my shop as Sharan Opticals is fixed on the front of the shop
It appears on an analy sis of the evidence that the correct position in law as established before the learned District Judge was that the tenant used to carry on apart from opticals business the business of advertising and for that he used to charge in the manner indicated therein
He used to charge certain amount of money
The question is whether by so doing the tenantappellant has assigned sub let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord
It is undisputed that whatever has happened has happened without the permis sion of the landlord
On the facts found it cannot be said or even argued that there was any assignment by the tenant Assignment it has been stated in Black s Law Dictionary Special Deluxe Ed p 106 is a transfer or making over to another of the whole of any property real or personal in possession or in action or of any estate or right therein
It has further been stated as The transfer by a party of all its rights to some kind of property usually intangible property such as rights in a lease mortgage agreement of sale or partner ship
 It has to be examined whether there was sub letting or otherwise parting with possession in terms of Sec 131e of the Act
In this connection it may be appropriate to refer to the deposition of the tenant wherein he had stated USS BOARD PAR PRACHAR KE TEEN SALL KE PANDRAH SAU RUPAYE MAIN LETA THA JISMEN PAINTING AUR BOARD AUR LIKHAVAT KA KHARCH MERE THA
 The above in our opinion indicates that the board was used for publicity and paintings and other expenses were of the tenant
Therefore it was the tenant who was carrying on the business
The learned trial Judge has noted the evidence on this
The learned trial Judge in his judgment at page 96 of the paper book had observed that the defendant in his written statement had admitted about the fixation of sign board on the shop
But the board had been displayed by not fixing anything on the wall or any angles on the roof
The plaintiff landlord 784 had not submitted any evidence but the defendant tenant in his evidence had admitted that he had fixed the board in the wails of the cement which was fixed permanently and he fixed the board time to time during the course of his busi ness of advertisement
The defendant further admitted that in 1974 he had advertised the board of Bhatia in which he had written that he had a tractor and the picture of tractor was made on the board
These in the learned trial Judge s Judgment as well as the deposition of the tenant appellant in our opinion conclusively establish that it was the tenant who was carrying on the business of advertisement by advertising the advertisements of different traders
If that is the position then in this situation can it be said that there was either any assignment sub letting or otherwise parting with possession
Shri Tapash Ray counsel for the appellant submitted that there was not
Shri Rajinder Sachhar on behalf of the landlord submitted that there was
Reliance was placed by Shri Tapash Ray on the observations of Farwell J of Eng land in Stening vs Abrahams 1931 1 LR Chancery Division 470
There the Chancery Division of the High Court of Eng land was concerned in that case whereby the lessee s cove nant was not to part with the possession of the demised premises or any part thereof  and it was held that it was broken only if the lessee entirely excluded himself from the legal possession of the part of the premises
In the facts of that case a seven years  exclusive licence to erect an advertisement board against the front wall of the lessee s house followed by its erection was held not to be a breach of the above covenant
Farwell J in his judgment at page 473 of the report considered the question as to whether the defendants had broken the covenant against parting with possession of any part of the premises
The plaintiffs therein had stated that by giving the AA Company the right to use the front of the wall for an advertisement hoarding the defendants had parted with the possession of that front and 3 inch stratum of air outside it
 The learned Judge noted that it was difficult to define the meaning of parting with possession generally
It must always be a question of fact and the construction of the particular agreement in each case and it cannot be determined by look ing at the document alone
The learned Judge after disclaim ing any attempt to define the meaning of parting with pos session generally and reiterating that it must always be a question of fact and construction of the particular argument in each case observed in an instructive passage at page 473 of the report as follows But in my view a lessee cannot be said to part with the 785 possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part
If there is anything in the nature of a right of concurrent user there is no parting with possession
Retention of a key may be a nega tive indicium and the authorities on the whole show that nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to a parting with possession
The fact that the agreement is in form a licence is immaterial as a licence may give the licensees exclusive a right to the legal possession as to amount to a parting with possession
How does the present licence exclude the defendants from any part of the premises It no doubt gives the licensees the exclusive right to use the wall for an advertisement hoarding
No one including the defendants can use the wail for that purpose
On the other hand the defendants remain to a large extent in possession of the wall
 It was contended in that case that the front of the wall was wholly in the control of the licensees
That is not wholly the true view Justice Farwell observed
The right of the licensees to put up their advertisement hoarding did not prevent the defendants from using the wall so long as they did not interfere with their licensees
Merely giving the licensees a right to use the wall for a particular purpose was not parting with possession within the covenant in that case it was held
On the other hand on behalf of the landlord Sree Ra jinder Sacchar referred to the decision of the King s Bench Division of the High Court of England in Gee vs Hazleton and Others 1932 1 King s Bench Division 179
There a statuto ry tenant of a dwelling house and land had granted a licence for seven years at an annual rent to a bill posting company to erect advertisement hoarding on part of the land
The company was granted free and uninterrupted access to the advertising position for bill posting etc purposes
It was held in appeal from the County Court decision that although the document did not constitute the grant of a sub lease but only of a licence the said part of the tenant s premises had ceased to be within the protection of the Rent Restriction Act because it was used for the busi ness purposes by the other statutory tenant of the whole and the landlord was entitled to possession of that part
It may be stated that the principle of the aforesaid decision of Gee vs Hazleton supra is not quite 786 relevant for the present purpose
In that case the subject matter was a dwelling house with huge land around it let out for residential purpose
There the tenant had let out a part of the land to an advertising agency for carrying on commer cial activities and the tenant was charging an amount which was by far more than the total amount which she was paying as rent for the entire premises to the landlord
This factor was taken with the main factor that the portion of the land given to the advertising agency in that case was a grant of licence by the tenant in favour of the advertising agency giving the advertising agency exclusive possession in that land to the exclusion of the tenant
Therefore in that case the Court held that there was parting with legal possession in favour of the advertising agency not because of realization of amount by the tenant more than the rent paid by her but really because on the fact it was found that exclusive possession was given to the said advertising agency of a portion of the residential unit to use for commercial activity
In that case possession given to the advertising agency was exclusive with the right to include advertising agency and also the right to exclude others including the tenant herself
The proposition of law laid down in Stening vs Abrahams supra was approved in Gee vs Hazleton supra
In this connection a reference may be made to the observations of Lord Justice Scrutton at page 185 of the report where the learned Lord Justice had ob served as follows I can conceive in some advertising cases cases of advertising boards that different views may be taken when the advertising sta tion consists of a board put on a dwelling house
There the paramount use of the wall is as the wall of the dwelling house and there is also a difficulty in defining what one gets possession of when the possession granted is that of an advertising station attached to a wall
Here there is no difficulty of that sort Lord Justice Slesser at page 192 of the report referring to the Stening vs Abrahams supra noted the view that the exclusive right to legal possession could amount to parting of possession
It is interesting to note in that case before the court Mr AT Denning as Lord Denning then was had appeared for the landlord and had contended that if the defendant had herself used this portion of the premises for bill posting she would have been within the protection of the Rent Restriction Acts but the defendant had let it for business purposes to some one else and as such she would not be protected as to that portion
That is not the position here
Furthermore under the Rajasthan Act such kind of user does not take away tenant s rights
Under the said Act 787 the tenant must be guilty either of an assignment or sub letting or otherwise parting with possession either of the whole or any part of the business without the permission of the landlord
In this there was no assignment
Sub letting means transfer of an exclusive right to enjoy the property in favour of the third party
In this connection reference may be made to the decision of this Court in Shalimar Tar Products vs HC Sharma  Others  where it was held that to constitute a sub letting there must be a parting of legal possession ie possession with the right to include and also right to exclude others and whether in a particular case there was sub letting was substantially a question of fact
In that case a reference was made at page 77 of the report to the Treatise of Foa on Landlord and Tenant 6th Edition at page 323 for the proposition that the mere act of letting other persons into possession by the tenant and permitting them to use the premises for their own purposes is not so long as he retains the legal posses sion himself a breach of covenant
In paragraph 17 of the report it was observed that parting of the legal possession means possession with the right to include and also right to exclude others
In the last mentioned case the observations of the Madras High Court in Gundalpalli Rangamannar Chetty vs Desu Rangiah AIR 1954 Madras 182 were approved by this Court in which the legal position in Jackson vs Simons were relied upon
The Madras High Court had also relied on a judgment of Scrutton LJ in Chaplin vs Smith at page 211 of the report where it was said He did not assign nor did he underlet
He was constantly on the premises himself and kept the key of them
He did business of his own as well as business of the company
In my view he allowed the company to use the prem ises while he himself remained in possession of them
 This position was also accepted in Vishwa Nath vs Chaman Lal AIR 1975 Delhi 117 wherein it was observed that parting with possession is understood as parting with legal posses sion by one in favour of the other by giving him an exclu sive possession to the ouster of the grantor
If the grantor had retained legal possession with him it was not a case of parting with possession
In this connection reference may be made to the observations of this Court in Madras Banga lore Transport Co West vs Inder Singh and Others wherein the observations of the Delhi High Court had been approved
The concept of parting with possession in private contracts between 788 the landlord and tenant was also known in India and it means parting with legal possession to the exclusion of the gran tor himself
In this connection the observations of this Court in Dr Vijay Kumar and Others vs Ms Raghbir Singh Anokh Singh may be referred to
There the Rent Controller had found that the appellants had parti tioned the shop in question in two portions
The two por tions were demarcated by a wooden partition wall
In one portion there was the clinic of the first appellant land in the other portion the other appellant was carrying on the business of sale and purchase of motor cars
The wooden partition wail had divided the single shop into two parts so that there were now two doors one in the portion in the occupation of the first appellant and the other portion in occupation of the other appellant
One could not go directly from one portion to the other on account of the wooden partition wail
The first appellant locked his portion
On these findings the Rent Controller had held that the second and third appellants were in exclusive possession of their portions
Hence he came to the conclusion that the first appellant had parted with the possession of his portion to them
The Rent Controller did not accept the plea of the appellants that the business which was being carried on in their portion was the joint business of the appellants
The first appellant was assessed to income tax
He had never shown the income from the motor business in his income tax returns
The appellants did not produce the account books
The Rent Controller accordingly held that the plea of joint business had not been established
It was argued before this court that the first appellant being the father of the other two appellants established them in business and permitted them to occupy a half portion of the shop for that purpose
As a father it was submitted it was natural for him to establish his sons in life
In short the argument was that the second and third appellants were occupying the half portion with his permission
This Court held that that was a plausible argument but they were unable to entertain this at a later stage in the Supreme Court and further held that the new plea was not a pleading of law but was a plea in fact
In BM Lall dead by LRs
vs Dunlop Rubber  Co Ltd  a distinction between the lease and licence was emphasised
See the observations at page 27 of the report
There was in the facts and circumstances of the case no grant of interest in land in favour of the advertis er
In Rajbir Kaur vs Ms section Chokosiri and Co AIR it was emphasised that it was the operative intention which is important
789 In Shri Dipak Banerjee vs Smt
Lilabati Chakroborty 4 Judgment Today it was reiterated that in order to prove tenancy or sub tenancy two ingredients had to be established firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly the right must be in lieu of payment of some compensation or rent
In this case the tenant or the sub tenant did not have any exclusive posses sion or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation on the basis of the facts as indicated herein before
From the aforesaid it appears to us that the question whether there is a tenancy or licence or parting with pos session in a particular case must depend upon the quality of occupation given to the licensee or the transferee
Mere occupation is not sufficient in our opinion to infer either sub tenancy or parting with possession
In Associated Hotel of India Ltd Delhi vs SB Sardar Ranjit Singh  it was held on the question whether the occupier of a separate apartment in a premises is a licensee or a tenant the test is whether the landlord retained control over the apartment
Similarly it was held by this Court in Smt
Krishnawati vs Shri Hans Raj 1974 1 SCC289 that sub letting like letting is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee
If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it it will be in the absence of any other evidence a rash inference to draw that the owners has let out that part of the premises
Sree Sachhar sought to argue that in consider ing the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwell ing house and not to protect a person who is not the resi dent of dwelling house but is making money by sub letting it
In our opinion however having regard to the quality nature and degree of the occupation of the transferee and the facts found it cannot be said that either there was any assignment or sub letting or parting with possession to such a degree by permitting the hoarding that the tenant had lost interest
He was using this premises for his benefit
Unless the tenant has infarcted the prohibition of the Act he is not liable to be evicted
The case rests on the express provision of the Act and there is no scope to explore the latent purpose of the Act
In the premises the High Court s order of eviction cannot be upheld
As no question of non payment has been found by the trial 790 court and the learned District Judge and there is no finding of any material alteration in our opinion the order for eviction cannot be sustained
The appeal therefore must be allowed
The appeal is allowed and the order for eviction is set aside
In the facts and the circumstances of the case however the parties will pay and bear their own costs
NVK Appeal al lowed


Summary:
Appellants 1 and 2 are the wife and daughter respective ly of the deceased who died in a road accident while trav elling in a hired car which collided with a truck
He died on the spot
At the time of his death he was 25
Appellants filed a petition before the Motor Accident Claims Tribunal claiming a compensation of Rs1 lac
The Tribunal s finding was that the accident was due to rash and negligent driving of the car
Without giving reasons the Tribunal awarded only Rs10000 against the owner of the car and the truck driver and also assessed the liability of the Insurance Company to the extent of Rs4000
Against the award the appellants filed an appeal to the High Court challenging the adequacy of the compensation awarded
The owner of the car filed a cross objection
The High Court affirmed the award and dismissed the appeal as also the cross objection stating that the compensation awarded was just and proper
This appeal by special leave is against the High Court s judgment affirming the Tribunal s award
On behalf of the appellants it was contended that High Court was not justified in affirming the Tribunal s award of only Rs 10000 as compensation
Allowing the appeal HELD 1
The appellants are entitled to a sum of Rsl lac on account of compensation
Out of this amount the Insurance Company ie Respondent No 4 is liable to pay Rs4000 and the other respondents are jointly and severally liable to pay to the appellants the remaining amount
766C 762 2
It is true that the deceased was a student at the time of his death but he was also looking after the busi ness of his father and earning about RslO00 a month
Even at the modest computation the contribution of the deceased towards his family could not be less than Rs500 per month ie Rs6000 per year
Taking the normal span of life to be 60 years he would have lived for another 35 years
It is apparent that the appellants have been deprived of more than a lac of rupees and accordingly their Claim for Rsl lac on account of compensation was quite reasonable
Both the Tribunal and the High Court were not justified in assessing the amount of compensation payable to the appellants at Rs 10000 only
765B D 3
As the law stood at the material time the maximum liability of the Insurance Company in such a case was only to the tune of Rs4000
In the appeal before the High Court the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs4000 only as conceded to by the appellants themselves
In the circumstances it Was not incumbent upon the Insurance Company to file the policy
766A B National Insurance Co Ltd vs Jugal Kishore  Ors  distinguished
This Court directed that the decretal amount should be paid within two mouths and in case of default it will bear interest at the rate of 12 per annum till realisation 766D