Case: Gopal Saran Vs. Satyanarayana

Court in Dr. Vijay Kumar v. Raghbir Singh Anokh Singh ((1973) 2 SCC 597 ) may be referred to. There the Rend Controller had found that the appellants had partitioned the shop in question in two portions. The two portions were demarcated by a wooden partition wall. In one portion there was the clinic of the first appellant and in the other portion, the other appellant was carrying on the business of sale and purchase of motor cars. The wooden partition wall 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 wall. 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 firsts 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 letter stage in the Supreme Court and further held that the new plea was not a pleading of law but was a plea in fact. 17. In B. M. Lall v. Dunlop Rubber & Co. Ltd. ((1968) 1 SCR 23 : AIR 1968 SC 175 ) 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 advertiser: "18. In Rajbir Kaur v. S. Chekesiri and Co. ((1989) 1 SCC 19 : AIR 1988 SC 1845 ) it was emphasised that it was the operative intention which is important." 19. In Dipak Banerjee v. Smt. Lilabati Chakraborty ((1987) 4 SCC 161 ) 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 possession 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 hereinafter. 20. From the aforesaid, it appears to us that the question whether there is a tenancy or licence or parting with possession 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 v. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548 : AIR 1968 SC 933 ) 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 Krishnawati v. Hans Raj ((1974) 1 SCC 289 : (1974) 2 SCR 524 ) 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, 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. Shri Sachar sought to argue that in considering the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwelling house and not to protect a person who is not the resident of dwelling house but is making money by sub-letting it. 21. In our opinion, however, having regard took 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 long interest. He was using this premises for his benefit. Unless the tenant has infracted 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. 22. In the premises, the High Courts order of eviction cannot be upheld. As no question of non-payment has been found by the trial 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]e 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 statement.9. 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 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 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 expenditure was mine. The board of my shop as Sharan Opticals is fixed on the front of the shop." It appears on an analysis 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 tenant-appellant 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 permission of theOn the facts found, it cannot be said or even argued that there was any assignment by the tenant. "Assignment", it has been stated in Blacks Law Dictionary, Fifth edn., p. 109, "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 partnership." It has to be examined whether there was sub-letting or otherwise parting with possession in terms of Section 13(1)(e) of theIn this connection, it may be appropriate to refer to the deposition of the tenant, wherein he hadBOARD PAR PRACHAR KE TEEN SALL KE PANDRAH SAU RUPAYE MAIN LETA THA JISMEN PAINTING AUR BOARD AUR LIKHAVAT KA KHARCH MEREThe above, in our opinion, indicates that the board was used for publicity and paintings and other expenses were of the tenant. Therefore, it was tenant who was carrying on the business. The learned trial Judge had noted the evidence on this. The learned trail 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 had not submitted any evidence but the defendant-tenant in his evidence had admitted that he had fixed the board in the walls of the cement which was fixed permanently, and he fixed the board time to time during the course of his business of advertisement. The defendant further admitted that in 1947, 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 Judges judgment as well all 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 withIt 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 was not parting with possession within the covenant, in that case it wasIn 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 Ltd. v. H. C. Sharma ((1988) 1 SCC 70 ) where it was held that to constitute a sub-letting, there must be a parting to legal possession, i.e., possession with the right to included 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 Goa on Landlord and Tenant, 6th edn., at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them a use the premises for their own purposes, is not, so long as he retains the legal possession 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 Gundalapalli Rangamannar Chetty v. Desu Rangiah (AIR 1954 Mad 182 : (1952) 1 MLJ 652 ) were approved by this Court in which the legal position in Jackson v. Simons ((1923) 1 Ch 373 : 128 LT 572 : 39 TLR 147) were relied upon. The Madras High Court had also relied on a judgment of Scrutton L. J. in Chaplin v. Smith ((1926) 1 KB 198 : 95 LJ KB 449 : 134 LT 393) at page 211 of the report where it was saidHe 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 premises while he himself remained in possession ofposition was also accepted in Vishwa Nath v. Chaman Lal (AIR 1975 Del 117 : 1975 Ren CJ 514) wherein it was observed that parting with possession is understood as parting with legal possession by one in favour of the other by giving him an exclusive 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 Bangalore Transport Co .(West) v. India Singh ((1986) 3 SCC 62 ) wherein the observations of the Delhi High Court had been approved. The concept of parting with possession private contracts between the landlord and the tenant was also known in India and it means parting with legal possession to the exclusion of the grantor himself. In this connection, the observations of this Court in Dr. Vijay Kumar v. Raghbir Singh Anokh Singh ((1973) 2 SCC 597 ) may be referred to. There the Rend Controller had found that the appellants had partitioned the shop in question in two portions. The two portions were demarcated by a wooden partition wall. In one portion there was the clinic of the first appellant and in the other portion, the other appellant was carrying on the business of sale and purchase of motor cars. The wooden partition wall 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 wall. 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 firsts 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 letter stage in the Supreme Court and further held that the new plea was not a pleading of law but was a plea inIn B. M. Lall v. Dunlop Rubber & Co. Ltd. ((1968) 1 SCR 23 : AIR 1968 SC 175 ) 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 theIn Rajbir Kaur v. S. Chekesiri and Co. ((1989) 1 SCC 19 : AIR 1988 SC 1845 ) it was emphasised that it was the operative intention which isthe aforesaid contentions and the position in law, the learned District Judge came to the conclusion that by Ex. 6 no portion of the disputed shop was given to the exclusive possession of the advertising agency or the defendant had not divests 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 thedoes 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 wall for that purpose. On the other hand the defendants remain to a large extent in possession of theIn Dipak Banerjee v. Smt. Lilabati Chakraborty ((1987) 4 SCC 161 ) 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 possession 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 indicatedFrom the aforesaid, it appears to us that the question whether there is a tenancy or licence or parting with possession 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 v. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548 : AIR 1968 SC 933 ) 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 Krishnawati v. Hans Raj ((1974) 1 SCC 289 : (1974) 2 SCR 524 ) 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, 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. Shri Sachar sought to argue that in considering the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwelling house and not to protect a person who is not the resident of dwelling house but is making money by sub-lettingIn our opinion, however, having regard took 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 long interest. He was using this premises for his benefit. Unless the tenant has infracted 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 theIn the premises, the High Courts order of eviction cannot be upheld. As no question of non-payment has been found by the trial 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 beOn 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 cross-examination 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-examination before the remand was made. It that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established 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 examination-in-chief and thereby given an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination-in-chief also he did not make out such a case and on the contrary his case was that it was the defendant-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 cross-examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on 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 indicate that there was parting of possession by him.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 cross-examination 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-examination before the remand was made. It that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established 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 examination-in-chief and thereby given an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination-in-chief also he did not make out such a case and on the contrary his case was that it was the defendant-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 cross-examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on 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 indicate 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 defendant-appellant for carrying on business it was the right of the defendant-appellant 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.