SARJOO PROSAD C. J. -
(1.)THIS appeal is by defendants Nos. 1, 2 and 3, and arises out of a suit for recovery of rent instituted by the plaintiff respondent No. 1 in respect of a lease of a cinema house known as "sumer Talkies".
(2.)THE case of the plaintiff is that on the 1st of May, 1948, the defendants 1 to 3, the appellants here, took a lease of the cinema house for a period of 5 years on a rent of Rs. 2,500/- a month. After running the cinema for some time, on the 7th of August, 1948, these defendants handed over the premises to defendants 4 and 5 for running the cinema in question; and when in April, 1949, there was a fire in the cinema, it is now admitted, the defendants abandoned the cinema house, and the plaintiff took possession of the same. It is also not disputed that a sum of Rs. 15,000/- was paid in advance to the plaintiff at the time of the lease by way of rent for a period of six months in respect of the use and occupation of the cinema house in question. THE plaintiff accordingly sued for recovery of rent from 1st November, 1948, to 16th April, 1949, making defendants 1 to 3 as party defendants to the suit, and also impleading defendants 4 and 5, who were said to be sub-lessees under these defendants.
The defendants did not deny that they entered into occupation of the cinema house in question by virtue of the lease ; but they contended that as the lease had not been registered, therefore, the lease being for a term of years exceeding one year, the document was inadmissible in evidence to prove any of the terms of the alleged lease. They accordingly contended that there was no relationship of landlord and tenant between the parties. They, however, admitted that a sum of Rs. 15,000/- had actually been paid to the plaintiff by way of rent for the cinema house in question for a period of six months. Their further plea was that in August, 1948, they had completely gone out of occupation of the premises in question, and that defendants 4 and 5 were inducted thereon with the concurrence of the plaintiff, who recognised these defendants as tenants of the cinema house. On these grounds they" contended that no decree for rent could be passed against them, nor even a decree for use and occupation of the same, because they were not in physical occupation of the disputed premises during the period in claim.
The learned Civil Judge of Kishangarh, who tried this suit, has decreed the claim for use and occupation against defendants 1 to 3, the appellants, for 5 months and 15 days at the rate of Rs. 3,500/- p. m. He dismissed the suit as against the other defendants 4 and 5. The defendants I to 3 have, therefore preferred this appeal.
Mr. Joshi on behalf of the appellants contends that in view of the fact that the document was inadmissible in evidence as being unregistered, the relationship of landlord and tenant between the parties could not be assumed, and, therefore, no decree for rent could be passed against these defendants. He contends further that a decree for use and occupation also could not be passed against these defendants because during the period for which compensation has been claimed, these defendants were not in occupation of the premises at all, and that the premises were really in occupation of defendants 4 and 5. He relies upon a decision of the Nagpur High Court in Lal Rajendra Singh Vs. Mahant Hulasdass (1 ). We consider it unnecessary to discuss the decision on which reliance has been placed by the learned counsel for the appellants in view of the decision of the Supreme Court in Ram Kumar Das Vs. Jagdish Chandra Deo (2 ). Here admittedly these defendants had been let into occupation of the premises by the plaintiff and there was both privity of estate and privity of contract between them. There is also the other admitted fact that they advanced Rs. 15,000/- by way of rent to the plaintiff for period of six months. Thus a valid tenancy can be easily inferred on these circumstances even if the lease deed was inadmissible for want of registration. As pointed out by Mukherjee, J. in the case aforesaid, that where the defendant remained in possession of the land belonging to the plaintiff with the permission of the receiver, who represented the plaintiff's estate, and paid rent to the latter, a tenancy could be fairly presumed from these facts. There could be no doubt, therefore, that on the admitted facts of the case there was the relationship of landlord and tenant between these appellants and the plaintiff. That the rent was Rs. 2,500/- a month payable on account of use and occupation of the premises is also not in dispute. It has been admitted even by the defendants' own witnesses, for instance, Shri K. S. Ranawat (D. W. 4), Shri Shanker Lal (D. W. 5), and Kalu Ram, the defendant himself (D. W. 3 ).
The other contention of the learned counsel for the appellants is that in any event when the tenancy had passed on to the defendants 4 and 5, the court below was in error in passing a decree against the appellants. Unfortunately, the evidence does not support him on the point. The evidence merely shows that the appellants sub-let the tenancy to defendants 4 and 5, and that the plaintiff did not object or it may be even assumed consented to the sub-lease. Under the law there was nothing to prevent the defendants who were lessees of the premises in question from sub-letting the same to the defendants 4 and 5 ; but there is nothing to show in the evidence that the plaintiff agreed thereby to relieve these defendants of their obligation to pay the rent to the plaintiff. Under sec. 108, clause (j), of the Transfer of Property Act, a, lessee is entitled to sub-lease his tenancy, but that does not exempt him from the liability to pay rent for the lease. In the circumstances, we are unable to find any substance in the contention of Mr. Joshi that defendants 4 and 5 alone should have been liable for the payment of rent and not these defendants. It has not been shown that there was any out and out assignment in favour of defendants 4 and 5 so as to throw the burden of the liability upon them. There is no document in support of any such plea. We accordingly think that the decree of the court below should be affirmed and the appeal dismissed. The lower court appears to have passed a decree for use and occupation, which was of course clearly erroneous; but the amount decreed is at the admitted rate of rent, viz. , Rs. 2,500/-a month for the period in claim. Therefore, it does not make any material difference so far as the decree itself is concerned.
The appeal is accordingly dismissed with costs. .