DHEERAJ MAL Vs. AJEET KUMAR

JUDGEMENT

(1.) THIS is an appeal by the defendant -tenant against the judgment and decree of Civil Judge, Chittorgarh (Camp Pratapgarh) dated 11 -9 -1979 upholding the decree for eviction passed by the Munsif, Pratapgarh, in Civil Suit No. 85 of 1974.

(2.) THE controversy in the present appeal is quite narrow. The appellant was a tenant in the suit shop and the plaintiffs landlords instituted the suit for eviction inter alia on the ground of subletting. There was issue No. 2 relating to the ground of sub letting. The learned Munsif decided this issue in favour of the plaintiffs and held that the defendant -appellant has sublet the suit shop to Shantilal son of Hiralal without the consent of the plaintiffs. There was also the ground of reasonable and bonafide need for eviction of the defendant, but the issue No. 1 relating to reasonable and bonafide need was decided against the plaintiffs by the trial court. The defendant -tenant preferred an appeal against the decree for eviction The learned Civil Judge found that the defendant -tenant has sub -let the tin -shed infront of the suit shop to Shantilal. The learned Civil Judge framed two points for determination. (1) Whether the portion said to be sub -let was part of the demised premises? (2) Whether that portion has actually been leased by the defendant? The learned Civil Judge determined both the points against the defendant -tenant. Hence this appeal by the defendant -tenant.

(3.) ON behalf of the defendant appellant Shri Bhandari vehemently urged that the first appellate court has seriously erred in holding that the tin shed situated infront of the suit shop was part of the demised premises and has been sub -let by the appellant. He urged that neither it was pleaded that this tin -shed portion was leased out to the defendant, nor there is any evidence on record to prove that the tin -shed portion was part of the demised premises. The learned appellate court has made out a new case, neither pleaded nor proved He urged that in case it is found that there is no evidence on record to establish that the tinshed portion was part of the demised premises, then the question of sub -letting does not arise and the decree for eviction on that ground, is liable to De set aside. He referred to the necessary averments in the plaint and the rent -note, as well as the statement of the plaintiff and on that basis submitted that the finding on issue No. 2, is liable to be reversed. He submitted that the land covered with tin -shed, may be appurtenant to the suit shop, but it cannot be considered to be the part of the demised premises, unless it is the subject matter of the lease and the learned Civil Judge was in error in making reference to the definition of the word 'premises' in Section 3. Clause (v)' Sub -clause (iv) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950) (hereinafter referred to as 'the Act').