CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil Second Appeal No.3/1990 Arjun Lal Agrawal Vs. Ghisi Lal (since deceased) through LRs and others & S.B. Civil Second Appeal No.4/1990 Arjun Lal Agrawal Vs. Ghisi Lal (since deceased) through LRs and others Date Of Judgment :: 29.6.09 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. Sudhanshu Kasliwal with Mr. R.N. Vijay, for appellant. Mr. N.K. Maloo with ] Mr. V.K. Tamoliya, ] Mr. Akhilesh Pareek ] for respondents. ........ By the Court :- These two second appeals have been filed by the plaintiff under section 100 of the Code of Civil Procedure CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (2) against the common judgment and decree dated 8/9/1989 passed by Additional District Judge No.6, Jaipur City, Jaipur accepting the defendant's appeal and reversing the judgment and decree of ejectment dated 21/12/1983 passed by Additional Civil Judge No.1, Jaipur City, Jaipur in Civil Suit No.250/1980 & 251/1980, thereby dismissing the plaintiff's suit of ejectment. 2. Since the subject matter and parties are the same and the appeals and suits have been disposed of by common judgment by the courts below, therefore, both the appeals have been heard together and are being decided by this common judgment. 3. Brief facts giving rise to these appeals are that plaintiff Arjun Lal (hereinafter shall be referred as plaintiff) filed a suit on 2/6/1966 CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (3) against the defendant Ghisi Lal (hereinafter shall be referred as defendant) for eviction of the suit premises Nohara bearing municipal no.2208 Chowkri Visheshwarji, Subji Mandi, Johari Bazar, Jaipur, which was purchased by him from Rao Surendra Pal Singh by registered sale deed dated 30/10/1964, inter alia on the ground of default and personal necessity. 4. The defendant in his written statement denied the contents of the plaint and also pleaded that Surendra Pal Singh was not having any relation with the said Nohara and disputed property had been taken by him on rent on 1/11/1950 from one Rao Narendra Pal Singh at the monthly rent of Rs.25/- which was further enhanced to the tune of Rs.35/- per month by executing a fresh rent deed on 5/12/1964. It was also denied that CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (4) plaintiff is having any personal and bonafide necessity of the disputed property. 5. Thereafter, in view of the objection taken by the tenant-defendant in his written statement that his landlord is Rao Narendra Pal Singh and not Rao Surendra Pal Singh, therefore, the plaintiff got executed another sale deed in his favour from Rao Narendra Pal Singh to remove the doubts regarding the right to eject the defendant from the disputed premises and instituted a second suit on 3/6/1970 against the defendant Ghisi Lal in respect of the same property. 6. During the pendency of both the suits, the ground of sub-letting, parting with possession and assignment were also added in the year 1977. 7. The defendant in his amended CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (5) written statement denied that disputed property was ever given on rent to firm Rambilas Jagdish Narain. He also revealed that nameplate of the firm Rambilas Jagdish Narain on the disputed property might have been affixed by the plaintiff with a view to create the evidence. 8. Issues were framed. Apart from the documentary evidence, the plaintiff examined 15 witnesses to prove his case and on behalf of the defendant 10 witnesses were examined and documents were also produced to prove their case. 9. The trial court vide its judgment dated 21/12/1983 having considered the entire material and evidence of both the parties has clearly held that the firm Rambilas Jagdish Narain is carrying on its business and the suit premises were in possession of CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (6) this firm being used as godown and the defendant has not come with this case that he is a partner in the said firm or is associated in any other manner with the said firm and in what capacity this firm is in possession of the suit premises and thus it is well proved that either the tenant has sub-let the suit property or has otherwise parted with the possession of the said godown. 10. The first appellate court while affirming the findings of the trial court to this effect that suit premises were handed over by the defendant to the said firm Rambilas Jagdish Narain for use as godown, has further held that plaintiff has not produced sufficient evidence to prove that how much portion of the suit premises was given to this firm, in other words whether the defendant had parted with possession of CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (7) the entire godown. The first appellate court has held that on the basis of the evidence of the plaintiff it is proved that some portion of the suit premises was handed over to the firm Rambilss Jagdish Narain for use as godown but it is not proved that exclusive possession of entire suit premises was given to the said firm and the defendant had no possession and control over the same. The first appellate court maintained the finding on the ground of personal necessity and thereby dismissed the cross objections but reversed the finding on the ground of sub-letting and parting with possession/assignment and allowed the appeal, thereby suit has been dismissed. Hence, these appeals. 11. This Court admitted the appeals for hearing on 6/2/1991 and framed following substantial question of CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (8) law for consideration :- “Whether in absence of the pleadings of the respondent- tenant that the alleged said tenant was only allowed to use the premises, it could be held that the premises had not been sub-let or its possession had not been parted with or no assignment had been done, the learned first appellate court could disturb the finding of the learned trial court ?” 12. During the pendnecy of these appeals, the respondent-defendant Ghisi Lal died and Lalu Prasad one of the legal heir of Ghisi Lal also died, hence the legal heirs of Ghisi Lal and Lallu Prasad were taken on record. 13. I have heard the learned counsel for the parties and gone through CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (9) the pleadings, evidence and other material available on the record. 14. Learned counsel for the plaintiff has contended that the first appellate court while concurring with the findings of the trial court that the defendant has parted with possession of suit premises has gone beyond the case pleaded by the defendant as it is a case of the defendant that entire suit premises were/are in his possession and possession of whole or any part thereof was not given to the said firm and thus, the findings of the first appellate court about partial possession of the said firm are perverse. He has placed reliance upon the judgments in Joginder Singh Sodhi Vs. Amar Kaur, reported in (2005) 1 Supreme Court Cases 31, Duli Chand (Dead) by LRs. Vs. Jagmender Dass, reported in CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (10) (1990) 1 Supreme Court Cases 169, Banshi Lal Vs. Mohan Lal, reported in AIR 1995 Rajasthan 167, Phool Chand and Girdhari VS. Girraj Prasad, reported in WLN 1976 416 and Subramanian and anr. Vs. Malar Sevi and anr., reported in 1986 (Sup.) Rent Control Reporter 386. 15. In Jogidnder Singh Sodhi's case (supra), Hon'ble the Apex Court held that once the landlord establishes parting of possession by the tenant to a third party, onus would shift on the tenant to explain as to how the said firm came into possession of rented premises. 16. In Duli Chand (Dead) by LRs' case (supra), it was held that no presumption that tenant and his son constituted joint Hindu family arose since tenant has not specifically pleaded in his written statement that he and his son constituted CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (11) joint Hindu family and they were in joint possession of the disputed property. 17. In Banshi Lal's case (supra), where tenant denying subletting and taking plea that business was run jointly with other person but he has not produced any evidence in support of his plea, in this fact situation it was held by this Court that adverse inference could be drawn against tenant since it was within special knowledge of tenant as to how other person was occupying the shop. 18. In Phool Chand's case (supra), it was held that once the court is satisfied that there has been a transfer of possession, the onus would shift on to the tenant to prove facts explaining the manner in which such possession was transferred. 19. Similar view has been taken by Madras High Court in Subramanian and CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (12) anr's case (supra). 20. Per contra, learned counsel for the defendants relying upon a number of decisions including the decisions in the case of Dipak Banerjee Vs. Smt. Lilabati Chakraborty, reported in AIR 1987 Supreme Court 2055, M/s. Delhi Stationers and Printers Vs. Rajendra Kumar, reported in AIR 1990 Supreme Court 1208, Mahendra Saree Emporium (II) Vs. G.V. Srinivasa Murthy, reported in (2005) 1 Supreme Court Cases 481, Resham Singh Vs. Raghbir Singh and another, reported in (1999) 7 Supreme Court Cases 263, Nirmal Kanta (Dead) through LRS. Vs. Ashok Kumar and another, reported in (2008) 7 Supreme Court Cases 722, Pala Ram and another Vs. Om Dutt, reported in 1993 (1) Rent Control Reporter page 395, and Smt. Arti Basak Vs. Uma Sankar Bose, CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (13) reported in 2001 (2) RCR page 234, has contended that it is obligatory for the landlord to prove that sub-tenant was in exclusive possession of the disputed rented premises or any part of the same, of which the tenant had not retained any control and thus, the findings of the first appellate court are justified. 21. In Dipak Banerjee's case (supra), the sub-tenant was doing tailoring job in the portion of the tenanted shop and was doing work for the landlord and others and there was no evidence that sub-tenant was in exclusive possession of the portion and that he paid any rent, therefore, it was held that it was not a case of sub-tenancy. 22. In M/s. Delhi Stationers and Printers' case (supra), where alleged sub-tenant was brother-in-law of the tenant and was also employed with him, CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (14) he was mere user of kitchen and latrine of the rented premises, in this fact situation it was held that mere occupation is not sufficient to infer either sub-tenancy or parting with possession. 23. In Mahendra Saree's case (supra), it was held that so long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub- letting. 24. In Resham Singh's case (supra) the tenant was involved in some criminal proceedings, he was absconding for a considerable period and in his absence his brother was looking after the shop, in this fact situation it was held that, to establish sub- CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (15) letting onus is on the landlord to prove that sub-tenant was in exclusive possession of the property in question, that there was a relationship of lessee and lessor between the sub-tenant and tenant and that the tenant had parted with possession in favour of the sub- tenant exclusively. 25. Similar view in regard to required proof of sub-tenancy has been expressed in other cited rulings keeping in view their individual fact situation. 26. I have considered the rival submissions and findings of both the courts below and am of the considered view that the first appellate court has taken a view entirely contrary to the facts and the law. 27. It was a clear case of the plaintiff that during the pendency of the eviction suit, the defendant has sub-let CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (16) the suit premises to the firm Rambilas Jagdish Narain. Admittedly, sister of Rambilas and Jagdish Narain was married to the defendant. The defendant vide his written statement has come with the plea that neither entire nor any part of the said premises has been sub-let to the said firm and the entire premises from the commencement of the tenancy is in his possession and he is running his oil mill. The trial court having considered the oral as well as documentary evidence in an appropriate manner has given clear findings that firm Rambilas Jagdish Narain is carrying on its business and the suit premises were in possession of the firm being used as godown and the defendant has not come with this case that he is partner in the said firm or associated in any other manner with the said firm and in what capacity he is in CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (17) possession of the suit premises and thus it is proved that either the tenant has sub-let the suit property or has otherwise parted with the possession of the said godown. These findings appear to be reasonable because also even on a bare perusal of the written statement of the defendant, it is evident that defendant-tenant has not taken this plea that suit premises or any part thereof was only allowed to be used by the said firm and in view of the entire material available on the record, the first appellate court could not have held that premises had not been sub-let or its possession had not been parted with. As per section 13(1)(e) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, if it is proved that tenant has assigned, sub-let or otherwise parted with possession of the whole or any part CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (18) of the premises without the permission of the landlord, a decree of eviction shall be passed in favour of the landlord. Even the first appellate court came to this conclusion that possession of part of the premises had been handed over to the said firm for its godown. At the cost of repetition, it is observed that since it was not even the case of the defendant that the said firm was only allowed to use the premises or its part, there was absolutely no reason for the first appellate court to hold that some part of the premises was given to the said firm only for the use as godown. Thus, the question framed by this Court is answered/decided in favour of the plaintiff. 28. Resultantly, both these appeals are allowed and the judgment and decree of the first appellate court are CSA 3/90 Arjun Lal Vs. Ghisilal (since deceased) through LRs and others CSA 4/90 Arjun Lal Vs. Ghisi Lal (since deceased) through LRs and others (19) set aside and the judgment and decree of the trial court are affirmed. The defendant shall hand over the vacant possession of the suit premises to the plaintiff within a period of one month from today. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A.