IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SANT SINGH V/s. Smt. BHAGWATI &Ors. S.B.CIVIL SECOND APPEAL No.52 of 1984 Date of judgment : 24th November, 2006 REPORTABLE PRESENT HON'BLE SHRI N P GUPTA,J. Mr. R.R. Nagori, for the appellant. Mr. R.K. Thanvi, for the respondent. BY THE COURT: This second appeal has been filed by the defendant against the decree for eviction from the suit shop passed by both the learned courts below. The facts of the case are, that on 14.9.1974, the plaintiffs, who are legal representatives of the deceased landlord Mangha Ram, filed the present suit alleging interalia, that the defendant had taken the shop in question on rent from him on 1.8.1969 at a monthly rent of Rs. 80/-, for carrying on his own business, and stipulating to pay electricity charges according to the meter reading, and to pay meter rent. Boundaries of the shop are given in the plaint. Mangha Ram is said to have expired on 5.5.1970. According to the plaintiff, the defendant has not paid rent after 31.7.1973, and thus has committed default in payment of rent. Then, in para-5 it was alleged, that the defendant has sublet the suit shop to Trilok Singh without permission of the plaintiff, and therefore, also he is liable to eviction. A notice was given on 11.3.1974, but to no good. Thus, the suit has been filed for eviction, arrears of rent, electricity charges, and the meter rent etc. The defendant has filed his written statement on 23.1.1975. It was pleaded by the defendant, that the shop was taken on rent by the defendants' father Jagan Singh from Kanwar Raji, for his own and his sons’ business, way back in the year 1950, at a monthly rent of Rs. 10/-, and when Mangha Ram purchased the shop, he threatened for eviction, and got the rent enhanced from time to time, in which process it was increased to Rs. 60/- in the year 1968. Then, in 1969 it was increased to Rs. 80/-. Thus, the defendant and his father were jointly carrying on business in the shop, and are carrying on. It was also pleaded that the shop is very small, having been provided at the space of staircase, and measures 3 x 20 ft. Regarding default, it was pleaded, that the rent was offered time and again but with intention to enhance the rent it was not received, and even money orders were refused. Then, the pleading of subletting was denied, and it was pleaded that the 2 defendant had not sublet the shop to anyone, and the plaintiff is not entitled to any decree for eviction. According to the defendant the notice determining the tenancy was replied, and was shown to be invalid. Then, other claims of the plaintiff were disputed, and it was contended that the plaintiff cannot recover any rent beyond the permissible standard rent. In additional pleas it was pleaded, that since before purchase of the shop by Mangha Ram, the defendant and his father are tenant, and since 1950 itself, Jagan Singh, the defendant, and his brothers are carrying on their business in the shop. Thus, the shop has not been sublet. Then, facts were pleaded about the standard rent of the shop to be Rs. 10/-, and ultimately it was prayed that the suit be dismissed, and standard rent be determined. Learned trial court framed as many as seven issues. Issue no. 1 was, as to whether the defendant is not a defaulter, placing burden on the defendant. Then, issue no. 2 was as to whether the defendant has sublet the shop. Then, the issue no. 3 was about plaintiff's entitlement to get rent at the rate of Rs. 80/- per month. Then, issue no. 4 related to meter rent, and electricity charges, issue no. 5 comprehended the question of validity of notice, issue no. 6 was about standard rent, and issue no. 7 related to relief. 3 In trial the parties produced oral evidence as well as some documentary evidence. Initially the rent was determined, and it was paid. Learned trial court after completing the trial held, that the defendant has paid the rent on the first date of hearing, and has thereafter been paying rent regularly, therefore, he is not a defaulter. Then, the next issue, being issue no. 2, was decided against the defendant. While deciding this issue it was considered, that an important piece of evidence is rent note Ex.-1, which has been proved by Prakash Kurani, and Harish. It was also considered that Jagan Singh, while in the witness box has admitted that this rent note was executed by the defendant. Then, it was considered, that it was on 2.9.1969, that Santok Singh took the shop on rent from Mangha Ram, for carrying on his own business, while the case of the defendant is, that he took the shop from his father Jagan Singh, but then when rent note was executed in presence of Jagan Singh, it has to be assumed that Jagan Singh surrendered his tenancy, and permitted new tenancy to commence in favour of Santok Singh. It was also considered, that as defendant's evidence states, that the rent note was executed in the name of Santok Singh, otherwise the plaintiff wanted the shop to be evicted. Even from this it is clear, that the plaintiff did not want the joint tenancy 4 in favour of the defendant and his father, rather he wanted to give shop to Santok Singh only. Then, it was considered that it is not the defendant's case that he and his father constitutes Joint Hindu Family, and therefore, it cannot be said that the shop has been given to Trilok Singh as a member of the family of the tenant. Then, the evidence of Anand Bihari Lal Mathur has been considered, who has proved various documents of registration, license etc. under Rajasthan Shops and Commercial Establishment Act, which proves that the name of the shop in question has been changed to Sardar Radio Service since 1973 vide Ex.-4, proprietor whereof is Trilok Singh, and on the reverse side thereof it is written by Trilok Singh himself, that he has started the shop some two years ago, and before that he had no shop. In the opinion of the learned trial court, this recital knocks down the very bottom of the defendant's case. Then, it has been considered that Trilok Singh has not been produced in evidence. Then, the receipts Ex. A-1 to 3, 5 to 7, 11, 13, and 14 have been considered, and it has been held, that they all relate to the period, prior to commencement of the tenancy, and after the new rent note Ex.1 has been executed, no receipt was issued in the name of Jagan Singh. With these conclusions it was held, that the defendant has sublet the shop to his brother, and thus he has parted with the possession of the shop in favour of his brother, and thus the issue has been decided against the defendant. Deciding issue no. 3 it was held, that the 5 plaintiff is entitled to receive the rent @ Rs. 80/- per month. Then, issue no. 4 was decided in favour of the plaintiff. Then, deciding issue no. 5 notice was found to be valid. Then, issue no. 6 was decided against the defendant, holding that the very shape of the shop had been changed. In the result, the suit for eviction was decreed, along with the arrears of rent, and electricity charges, and meter rent. In appeal, the learned lower Appellate Court upheld the findings on all the issues. Regarding issue no.2 it was considered, that from the evidence of the plaintiff, which has come on record, it is proved, that Santok Singh has sublet the shop to Trilok Singh, and has started the new shop near Minerva Cinema Building, in the name and style of Light and Radio Service, and that, earlier Santok Singh was sitting on the shop in question, while he was carrying on business in the name of Radio Service, but now Santok Singh does not sit, and instead Trilok Singh only sits. Then, the learned lower Appellate Court also considered Ex.5, which was submitted for weekly holiday of the shop, wherein Trilok has signed as proprietor, and also considered Ex.7 being the Registration Certificate regarding defendant's shop near Minerva Building, in the name and style of Light and Radio Service. The statement of Anand Bihari Lal was considered, and it was also considered that the defendant Sant Singh was carrying on business in 6 the name and style of Light and Radio Service, and it was also considered, that the defendant Santok Singh has admitted in cross-examination, that on the suit shop his brother Trilok Singh sits, and that his brother has got his name entered in the Commercial Establishment Office, and that he himself sits on another shop, being Light and Radio Service, near Minerva Building since 1974, and that this shop is registered in the year 1973. Thus, it was considered to be very material admission on the side of the defendant, about his not sitting on the shop in question, and about his brother sitting on the shop in question, and about effecting the registration with respect to the suit shop. Thus, it was found, that the defendant has parted with the possession of the shop in favour of brother, Trilok Singh. Then, it was considered that the case of the defendant is, that Trilok Singh sits in his shop with his permission, but then the defendant does not know about profit and loss of the shop, or about payment of any electricity charges etc., which shows that he has nothing to do with the shop, rather he has set up his own new business. Then, the factum of earlier tenancy was also considered, and it was considered, that admittedly defendant had taken the shop from Mangha Ram on 1.8.1969, vide Ex.-1, which rent note is duly proved. It was considered that even according to Jagan Singh, he was carrying on business in the name of Sardar Electric Store, and after execution of the rent note in favour of Sant 7 Singh, the name of the shop was changed to Sardar Radio Service, and new tenancy has come into existence between Mangha Ram and the defendant, and it cannot be believed that the shop is in tenancy of Jagan Singh. It was also disbelieved, that Jagan Singh has Joint Hindu Family, as Jagan Singh himself admits, that Sant Singh runs the Radio Light shop near Minerva Building, and Trilok Singh had gone to Jaipur, and both these sons live separately from him. Thus, it was found, that there is ample reliable evidence on record, on the side of the plaintiff, to show that the suit shop was in tenancy of Sant Singh, who has parted with its possession to Trilok Singh without permission of landlord. Then, it was also considered that the defendant's witnesses have tried to prove, that the defendant had told the plaintiff, to receive the rent from Trilok Singh, but then there is no evidence whatever on record, that the rent was ever received by the plaintiff from Trilok Singh. It was concluded, that the defendant has retained no possession of the shop in question, and has started independent business near Minerva Cinema, and has no connection with the suit shop, and under the Act Trilok Singh is not a tenant, but is a sub tenant. Thus, it was found, that the plaintiff has successfully proved, that the defendant has parted with the possession of the premises in favour of Trilok Singh, without permission of the landlord, or has given it on rent to other persons, or has otherwise parted with possession. Learned lower Appellate Court also 8 placed reliance on the judgment of this Court, in Bhagwat Prasad Vs. Dwarka Prasad, reported in 1969 WLN-351. The present appeal was filed on 17.4.1984, and was admitted on 1.4.1985, by framing following substantial question of law:- “Whether the finding arrived at by the first appellate court that the defendant had either assigned or sub-let or otherwise parted with possession of the premises in dispute without the permission of the landlord is proper and whether the same is sufficient to pass a decree for eviction within the meaning of Section 13(1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950?” Arguing, the appeal it was contended by the learned counsel for the appellant, that the learned lower Appellate court has based its findings on the judgment of this Court in Bhagwat Prasad Vs. Dwarka Prasad, reported in 1969 WLN-351, while that judgment has been over-ruled by the Division Bench in, Amir Ahmed Vs. Yusuf, reported in 1985(1) WLN-550, it was then submitted, that there is no finding of the learned lower Appellate court about the tenant having sublet the premises, as contemplated by Section 13(1)(e) of the Act, and to Trilok Singh, as pleaded in the plaint, inasmuch as the finding recorded at page-9 is, that the plaintiff has been able to establish, that the defendant tenant has delivered possession of the premises to other person Trilok Singh without permission of 9 the landlord, or has sublet it to other person, or has otherwise relinquished the possession; which according to the learned counsel, is not a finding of subletting. It was then submitted, that the pleading contained in this regard in the plaint are also not sufficient, inasmuch as all that has been pleaded is in para-5 of the plaint, wherein it has been pleaded that the defendant has sublet the suit shop without plaintiff's permission to Trilok Singh, and therefore, the plaintiff is entitled to decree for eviction, while according to the learned counsel this pleading merely amounts to pleading law, and the necessary ingredients of subletting, as might have been the case of the plaintiff, and which was required to be pleaded, have not been pleaded, like that the tenant has parted with the possession exclusively in favour of the subtenant, inasmuch as that the tenant has retained no control over the premises, and that the sub tenant has absolute right of possession over the property i.e. he has the right to include some-body-else so far the tenant is concerned, and has also a right to exclude any other person from entering into possession. Likewise, the another thing required to be pleaded was, that there is a relationship of lesser and lessee between the tenant and the subtenant, and that such relationship is for consideration. Since both these necessary ingredients, which are factual aspect of the matter have not been pleaded, therefore, the Court even did not acquire any jurisdiction to pass a decree on the ground 10 of subletting. Then, another submission that was made was, that the defendant and Trilok Singh both are real brothers, and as has come on record, that the premises were originally let out to Jagan Singh, who is the father of the defendant and Trilok Singh as well, the rent was being paid by Jagan Singh, and simply because his one son continues to carry on business, or other son carries on business, is hardly sufficient to make out any case of subletting. It was pleaded in the written statement, that Jagan Singh is the tenant in the premises since 1950, and since then, Jagan Singh, the defendant, and his brothers have been carrying on business in the suit premises, and thus there is no subletting. Assailing the findings of the learned courts below, it was contended, that simply because a fresh rent note was executed by Trilok Singh, it cannot be said that the tenancy of Jagan Singh at all came to an end. Reliance in this regard was placed on the judgment of Hon'ble the Supreme Court, in T.K. Lathika Vs. Seth Karsandas Jamnadas, reported in (1999)6 SCC-632, wherein it has been held, that mere alteration, or improvement, or even impairment of the former relationship, would not ipso facto amount to implied surrender, and it has to be ascertained on the terms of the new relationship, vis-à-vis the erstwhile demise, and then judged, as to whether there was termination of the old jural relationship by implication, and therefore, since Sant Singh and Trilok Singh are sons of Jagan Singh, no case of subletting is at 11 all made out. It was also submitted that apart from the fact that there is no pleading, even in evidence there is not an iota of evidence to show, that the alleged induction of Trilok Singh by Sant Singh defendant, is for consideration, or that there is any relationship of landlord and tenant between Sant Singh and Trilok Singh. Then, learned counsel referred to me, rather read to me Section 13(1)(e), and also referred to rent receipts, being Ex. A-1 to A-15. Then, referring to Ex.A-6 and A-7 and A-12 it was submitted, that these receipts show, that rent was received by the landlord from Jagan Singh, and that Sant Singh was working with his father Jagan Singh. He also referred to the statement of P.W.2, who had admitted in cross examination, that Sant Singh, Trilok Singh and Jagan Singh were working on the shop, since even before the execution of the rent note. Likewise, he also referred to the statement of P.W.3, who has admitted in cross examination, that Jagan Singh continues to sit on suit shop even now. Then, learned counsel referred to the statement of P.W.1, who has deposed in cross-examination, that Sant Singh told him to take rent from Trilok Singh, which clearly shows, that there was no case of subletting, inasmuch as if it were the case of subletting, then Trilok Singh would have paid rent to Sant Singh, who in turn may have paid it to landlord. Likewise on the question of subletting, learned counsel also referred to other part of the statement of this witness, wherein this witness has 12 deposed to be not knowing Jagan Singh, who was present in the Court, while as a matter of fact, admittedly he was tenant in the shop since before the shop was purchased by the plaintiff. Thus, according to the learned counsel even from the evidence of the plaintiff the subletting is not proved. The next submission made was, that even if it were to be assumed, that the finding recorded by the learned lower Appellate court is a finding about the appellant's parting with the possession of the suit premises, still no such finding could be recorded in absence of any pleading in this regard. Long drawn submissions were made on the aspect of variance between pleading and proof, and reference was made to the judgment of Privy Council, in Adusumilli Gopalkrishnayya Garu Vs. Province of Madras, reported in AIR 1947 Privy Council-132, M/s Trojan & Co. Vs. R.M.N.N. Nagappa Chettiar, reported in AIR 1953 Supp. Court-235, Vinod Kumar Arora Vs. Smt. Surjit Kaur reported in AIR 1987 SC-2179, Manna Lal Vs. Moolchand & Anr. reported in (1986)3 Judicial Surveyor-371. Arguing on the question of parting with possession, learned counsel relied upon the judgment of Delhi High Court, in Hazarilal Vs. Gian Ram, reported in 1972 RCR-74, which has been relied upon, and followed, by the Division Bench of this Court in Amir Ahmed's case. It was submitted that in Hazarilal's case it was laid down, that the three expressions used in Section 14(1)(d) of the 13 Delhi Act viz. “Sub let” “assigned” and “otherwise parted with the possession” deal with different concepts, and apply to different circumstances, inasmuch as, in case of subletting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression 'parted with the possession' undoubtedly postulates the parting with the legal possession. And that, parting with possession means giving possession to persons other than those to whom possession has been given by the lessee and “the parting with possession” must have been by the tenant. The mere user by other persons is not parting with possession as long as the tenant retains the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself of not only physical possession, but also of the right to possession. So long as the tenant retains the right to claim possession from his guest, who does not pay him any rent or other consideration it would not be possible to say that tenant has parted with possession, even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenanted premises. If the tenant has a right to 14 disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenanted premises. The mere fact that the tenant himself is not in physical possession of the tenanted premises for any period of time, would not amount to parting with the possession, as long as, during his absence, tenant has a right to return to the premises, and be in possession thereof. A mere privilege of license to use the whole or a part of the demised premises which privilege or license can be terminated at the sweet will and pleasure of tenant at any time would not amount to “parting with possession”. The divestment of abandonment of the right to possession is necessary in order to invoke the clause of “parting with possession”. Thus, it was contended, that for making out “parting with possession”, legal possession should be parted with, i.e. possession should be given to other person, and if the sub tenant is merely allowed to use, so long as tenant retains possession it cannot be subletting, rather tenant must have divested himself of the possession, viz. that he must have retained no right to get back the possession. It was maintained that in the present case there is no plea about the defendant having no right to get back the possession. Then reliance was placed on the judgment of Hon'ble the Supreme Court, in Resham Singh Vs. Raghbir Singh & Anr. reported in (1999)7 SCC-263, specially para-7, to contend, that for subletting there should be exclusive possession of the subtenant, relationship of 15 landlord and tenant must have existed between the tenant and subtenant, and there should be parting with possession. Then, reliance was placed on the judgment, in Delhi Stationers & Printers Vs. Rajendra Kumar, reported in 1990 (1) RCR-491, to contend, that in order to make out subletting there should be consideration, for parting with possession in favour of subtenant, and mere occupation of the subtenant is not enough. Then reliance was also placed on judgment of Hon'ble the Supreme Court, in Jagan Nath Vs. Chander Bhan & Ors., reported in (1988)3 SCC-57, so also in Dipak Banerjee Vs. Lilabati Chakraborty, reported in (1987) 4 SCC-161, to contend that consideration of parting with possession is essential, the sub tenant should be in exclusive possession, and that the tenant should not retain any control in the possession. Then, reliance was placed on Benjamin Premanand Rawade Vs. Anil Joseph Rawade, reported in (1998)9 SCC-688, and Dev Kumar Vs. Swaran Lata, reported in (1996) 1 SCC-25, to contend that there should be relationship of landlord and tenant between the tenant and subtenant, i.e. there should be transfer of actual possession, and it should be for consideration. According to the learned counsel all these are the factual aspects, which are required to be pleaded,