SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 1/22 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.124/1999 Basanti Lal versus 1. Ram Chander S/O Jagannath 2. Shanker Lal S/O Sh. Deep Chand 3. Bansi Lal S/O Deep Chand 4. Smt. Kanku W/O Bhanwar Lal PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.S.L. Jain, for the appellant. Mr.Rakesh Arora, for the respondents. REPORTABLE DATE OF JUDGMENT : 20th February, 2009. JUDGMENT 1. This second appeal of the defendant – tenant has been filed being aggrieved by the concurrent judgments of two courts below in an eviction matter on the ground of subletting of the suit premises; a SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 2/22 shop situated at Bus Stand, Kapasan. The suit shop is of small size 4½ x 7 ft. The learned trial Court decreed the suit of the plaintiff respondent Ramchander on 1.5.1997. The plaintiff had filed the suit on the ground of default, subletting and bonafide need. However, the plaintiff did not press before the learned trial Court the ground of default and bonafide need, but only pressed the ground of subletting in issue No.2 framed by the learned trial Court. 2. According to the plaintiff, the said suit shop was given on rent to the defendant Deep Chand, father of the present appellant Basanti Lal in the year 1986 under the rentnote executed vide Ex.1 but since in the said suit shop, the said tenant Deep Chand never carried on any business, but his son Basanti Lal carried on business, according to the plaintiff, there was subletting by the tenant to his son Basanti Lal and therefore, on the ground of eviction set out in Section 13(1) (e) of the Rajasthan Rent Control Act, 1950, the plaintiff was entitled to eviction of the defendant. The said defendant Deep Chand died on 1.7.1988, whereas the present suit was filed by the plaintiff on 10.7.1987. SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 3/22 3. The learned trial Court decreed the suit on 1.5.1997 and the first appeal filed by the defendant also failed before the first appellate Court vide order dtd.9.4.1999. Being aggrieved by the same, the defendant has approached this Court by way of present second appeal, which was admitted by this Court on 12.5.1999 with the following substantial questions of law framed by the Court: “1. Whether appellant Basanti Lal being son of Deep Chand is entitled to carry on business with his father Deep Chand being member of his family within the meaning of Sec.3(vii)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act No.17 of 1950 and as such his doing of business in the disputed premises with his father father does not fall within the ambit of clause (e) of Sub-sec.(1) of Sec.13 of Act No.17 of 1950? (2) Whether if the findings of sub-letting recorded by the both the courts below are accepted as it is, it would make mandatory SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 4/22 provisions of Sec.3(vii) (b) of Act No.17 of 1950 to be redundant? (3) Whether if the findings of sub-letting as recorded by both the courts below are accepted then it would tantamount forfeiting the right of appellant Basanti Lal to inherit the commercial premises as heirs of Deep Chand being his son?” 4. Mr. S.L. Jain, learned counsel for the defendant – tenant argued that the present appellant Basanti Lal son of the original tenant Deep Chand was carrying on the business in the said suit shop right from beginning in the year 1986 and even after the death of his father Deep Chand on 1.7.1988, he continued to carry on the business of Readymade garments in the said shop and therefore, he inherited the tenancy within the meaning of Section 3(vii)(b) of the Rajasthan Rent Control Act, 1950 and therefore, there was no question of his father subletting the suit shop to him. As against that, he became the statutory tenant of the suit premises in place of his father. He further submitted that the plaintiff utterly failed to prove that father had parted with the possession in favour of the son to his own exclusion SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 5/22 and therefore, the grounds stated for eviction under Section 13(1)(e) of the Act were not at all satisfied and therefore, the decree of eviction given by the Court below deserves to be set aside. He extensively read the statement of P.W.1 Ram Chander himself as the original tenant Deep Chand was never examined by the learned trial Court and submitted that from the evidence of the plaintiff himself, it was clear that father of the present appellant Basanti Lal frequently came to the suit shop in question from his residence at Hindoli, a nearby village about 9 kms. away and since all his three sons carried on different business at Kapasan, he used to come to Kapasan frequently and even sat for doing business at the said suit shop along with his son – present appellant and therefore, there was no question of subletting by the father in favour of his son. He also submitted that the plaintiff failed to prove that any compensation was given by the son to his father for his exclusive possession over the suit shop in question and therefore, the grounds of eviction stated in Section 13(1) (e) of the Act were not satisfied. He relied upon the various case laws, a brief narration of which will be made hereinafter. SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 6/22 5. On the side opposite Mr. Rakesh Arora, learned counsel appearing for the plaintiffs – respondents urged that since rent note Ex.1 clearly establishes that the shop in question was given to the father of the present appellant Sh. Deep Chand only and Deep Chand never did any business in the said suit shop, but the business was being carried on by his son Basanti Lal; present appellant, there was parting of possession by the original tenant in favour of the son which amounted to subletting and therefore, the courts below have rightly decreed the suit on the said ground. He submitted that the appellant Basanti Lal could not establish before the learned trial Court that he he was originally carrying on business in the suit premises with his father upto the date of his death and therefore, there was subletting by the father to his son. He also submitted that under Ex.2 in an appeal filed by the present appellant in an injunction suit which was filed by him against the plaintiff on the ground that the plaintiff created nuisance in carrying on his business in the suit shop, the present appellant had himself admitted that his father was not at good terms with him and therefore, he submitted that it was sufficient to establish that the present appellant Basanti Lal had exclusive possession of the shop in question to the exclusion of his father. He, SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 7/22 therefore, prayed for dismissal of the present second appeal and the eviction decree deserves to be upheld by this Court. He relied upon the decision of this Court in the case of Ankur Sharma V/s Darshan Bali reported in 2001(2) WLC 372, which is also being discussed hereinbelow. 6. Having heard the learned counsel and after going through the impugned judgment and submissions of both the parties and the judgments cited at the bar, this Court is of the opinion that the present appeal of the defendant – appellant deserves to be allowed as the Courts below have erred in holding that it was a case of subletting by the original tenant Deep Chand in favour of his son, present appellant Basanti Lal. 7. The definition of tenant as defined in section 3(vii) of the Rajasthan Rent Control Act, 1950 is as under: “3(vii) “tenant” means- (a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 8/22 payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.” 8. Section 13(1)(e) of the Act which furnishes a ground of eviction provides as under: “13. Eviction of tenants- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree; or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 9/22 the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a)..... (b)... (c).... (d)... (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” 9. In order to furnish a valid ground of eviction to the landlord, the tenant himself must assign, sublet or otherwise part with the possession of whole or part of the rented premises without permission of the landlord to a third party. Parting with possession by the tenant must be to his own exclusion. Unless such possession is transferred by the original tenant to the exclusion of himself, it cannot be a case of subletting or parting with the possession so as to become a valid ground for eviction of the tenant. In the present case, not only the plaintiff failed to prove that said parting with the possession by the SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 10/22 father Deep Chand was to his own exclusion, on other hand in the cross-examination of the plaintiff Ram Chander himself, he admitted that father Deep Chand, the original tenant frequently came to Kapasan from Hindoli and used to sit at the suit shop. Merely because the son carried on the business in the suit premises, it cannot be said that the father sublet the said shop to him. Not only this, the plaintiff failed to prove any compensation or rent being paid by the son to the father for such subletting, but on the contrary, the plaintiff also failed to prove that there was any parting with possession and that too without his permission. On the contrary, the defendant established before the learned trial Court that the son Basanti Lal, present appellant carried on the business in the suit shop right from the beginning of tenancy in the year 1986 under the rent note Ex.1 and the tenant Deep Chand even offered that the rent-note may be executed by himself or his son Basanti Lal. Thus, it was fully within knowledge of the plaintiff that the suit shop in question is meant for business to be carried on by either father Deep Chand or his son Basanti Lal. It was not a case of parting with the possession in favour of any third party or outsider and the present appellant Basanti Lal being the son of the original tenant Deep Chand stepped into the SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 11/22 shoes of his father in accordance with clause (b) of Section 3(vii) of the Act defining “tenant” under the Act of 1950 as he was ordinarily carrying on business with him in said premises as as member of his family upto his death. Mere averment in the appeal Ex.2 in an injunction suit filed by the present appellant against the plaintiff himself as he created some nuisance against the tenant in which it was stated that the son was not at good terms with his father, is not enough to prove the case of subletting as contended by the learned counsel for the plaintiffs – respondents. 10. The criteria for establishing the case of subletting under section 13(1)(e) of the Act can be gathered from the following decisions relied upon by the learned counsel for the defendant – tenant. 11. In the case of M/s Delhi Stationers and Printers V/s Rajendra Kumar reported in AIR 1990 SC 1208 in which the Hon'ble Supreme Court held as under: “Under S.13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the tenant is liable to be SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 12/22 evicted, if he has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub- letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. Therefore, where the alleged sub-tenant was brother- in-law of the tenant and was also employed with him, mere user of kitchen and latrine in occupation of the tenant by the said brother-in-law would not mean that the tenant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of his brother-in-law, the alleged sub-tenant, so as to make the tenant liable for eviction.” SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 13/22 12. In the case of Smt. Laxmi alias Anandi V/s C. Setharama Nagarkar and ors. reported in AIR 1996 SC 268, the Hon'ble Supreme Court has observed as under: “9..........The onus or proving the sub-tenancy as alleged was on the landlord. The landlord's evidence does not establish such sub-tenancy. In fact, it rules out any possibility of it. The statements in the landlord's evidence cannot be explained away by observing that the landlord's answer had not been recorded properly or “must be a mistaken” or spelt out something that was not true. 10. It must also be noted that there has been no finding as to when the sub-tenancy in favour of the 4th respondent was created, and this was very necessary in the facts of this case. Also very relevant is the fact that, though the eviction petition averred that the sub-tenancy had been created by “opponents 1 to 3, the landlord's evidence in examination-in-chief and the findings were SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 14/22 that it had been created by the original tenant, Shankarnarayana. 11. We find the conclusion of the High Court upon the issue of sub-letting unreasonable, having regard to the record, and must set it aside.” 13. In the case of Tara Chand and another V/s Ram Prasad reported in (1990) 3 SCC 526, the Hon'ble Supreme has held as under: “Every tenancy is founded, initially, upon a contract. The contractual tenant has an estate or property in the leasehold interest of the tenancy and his heritability in an incidence of the tenancy. The tenant who continued to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed, continues to have an estate or interest in the tenanted premises. In absence of any provision in the Rent Act regulating the rights of the heirs of the tenant to inherit the tenancy rights of the commercial premises SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 15/22 after the tenant's death, the tenancy rights devolves on the heirs under the ordinary law of succession. Under Hindu Succession Act the heirs of the deceased tenant are entitled to succeed, not only to his business, but also to his tenancy rights under the Rent Act which protects the heirs from ejectment except in accordance with that Act. Therefore, despite the termination of the tenancy, the tenancy rights are heritable and the heirs of the tenant are entitled to enjoy the protection of the Act.” 14. In the case of United Bank of India V/s Cooks and Kelvey Properties (P) Limited reported in (1994) 5 SCC 9, the Hon'ble Supreme Court has observed as under: “In the present case though the appellant had inducted the trade union into the premises for carrying on the trade union activities, the bank has not received any monetary consideration from the trade union, which was permitted to use and enjoy it for its trade union activities. The bank has been maintaining the premises at SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 16/22 its own expenses and also paying the electricity charges consumed by the trade union for using the demises premises. The bank retains its control over the trade union whose membership is only confined to the employees of the bank. Under these circumstances, the inference that could be drawn is that the appellant had retained its legal control of the possession and let the trade union to occupy the premises for its trade union activities. Though exclusive possession of the demised premises was given to the trade union, the possession must be deemed to be constructive possession held by it on behalf of the bank for using the premises for trade union activities so long as the union used the premises for trade union activities. Thus, the inevitable conclusion is, that there was no transfer or right to enjoy the premises by the trade union exclusively, for consideration. Thereby, the existence of consideration, an ingredient of the subletting, has not been present to hold that the respondent had sublet as would make it liable for eviction under Section 13(1)(a) of the SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 17/22 Tenancy Act.” 15. The Division Bench of this Court in the case of Amir Ahmed V/s Yusuf reported in 1985 (1) WLN 550 has held as under: “16. Our answers to the three questions referred to shown by the learned single Judge are as under: (1) Where a tenant allows another person to merely use the premises or part of the premises, he cannot be said to have parted with the possession of the premises or part of the premises so as to entail the liability of eviction u/s 13(1)(e) of the Act. (2) that the conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person, does not constitute parting with possession u/s 13(1)(e) of the Act. (3) that the decision in Bhagwat Prasad's case (1) so far as it held that a tenant by sharing the premises with a third person can be said to have parted with the SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 18/22 possession of the premises does not lay down the correct law. All the questions referred by the learned single Judge which have been mentioned here in above are, therefore, answered in the negative.” 15. In the case of Abdul Hafiz Khan V/s Jethu Ram reported in 1981 WLN (UC) 401, the learned Single Judge of this Court while dealing with the eviction matter under Clause 13(1)(h) of the Act, discussed the word “family” which is also used in Section 3(vii)(b) of the Act as under: 10.......... In Radha Vallabh V/s Damodar Das (1964 RLW 587), it was observed as follows:- “There is no definition of 'family' in the Act. Its primary meaning is children, but that may be too narrow an interpretation. Consanguinity does not appear to be pre- requisite of membership of a 'family' and the word appears to have been used in its ordinary popular sense, SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 19/22 and not as a technical term. A broad common sense view, taken with due regard to the facts and circumstances of each case, including the social order, the habit, the customs and the ideas of living of the community, would, therefore, be the most appropriate for the purpose of deciding whether a person is a member of another family or not.” Here I may also notice Govind Das V/s Kuldip Singh (AIR 1971 Delhi 151) wherein it was observed: “The word “family” has not been defined in the Act and we fell advisedly so. The concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideals of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.” SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 20/22 16. On the basis of aforesaid judgments, it is clear that unless parting with possession by the tenant is in favour of some third party outside the family for some consideration and to the exclusion of the original tenant himself, the grounds of eviction under Section 13(1) (e) of the Act are not satisfied. In the facts of the present case, where son Basanti Lal, present appellant was carrying on business right from day one under the admitted participation by the father Deep Chand who used to come from Hindoli to Kapasan as per his convenience, it cannot be inferred that the father parted with the possession to his own exclusion in favour of his son. Therefore, the Courts below have erred in holding that the case of subletting was established by the plaintiff landlord and thus giving eviction decree. 17. The judgment relied upon by the learned counsel for the plaintiffs – respondents of learned Single Judge in Ankur Shamra V/s Smt. Darshan Bali and ors. reported in 2001(2) WLC (Raj.) 372 is distinguishable in facts from the case in hands. In para 31 of the said judgment, the learned Single Judge held that for inheriting the tenancy rights under Section 3(vii)(b) of the Act, possession and user of the rented premises by surviving heirs of deceased tenant referred SBC SECOND APPEAL NO.124/1999–BASANTI LAL V/S RAM CHANDER AND ORS.. : JUDGMENT DTD. 20.2.2009 21/22 to in sub clause (a) during his life time is a condition precedent whether the premises is leased out for residential or for commercial purpose. This proposition rather supports the case of the defendant – appellant than the case of the plaintiffs – respondents. Here it is established upon evidence that the son - present appellant Basanti Lal carried on the business right from the date of commencement of tenancy and therefore, he would admittedly become statutory tenant after death of his father under Section 3(vii) (b) of the Act and thus, there is no snapping of relationship or denuding continuity of statutory tenancy as was