Sibghat Ullah Khan, J. - (1.) LIST revised. No one appears for the respondents. Heard Sri W.H. Khan learned Counsel assisted by Sri Om Prakash learned Counsel for the petitioner.
(2.) THIS is plaintiff -landlord's writ petition. Plaintiff -petitioner filed SCC Suit No. 69 of 1980 against contesting respondents. In the plaint it was alleged that shop in dispute was allotted to Bhagwan Das in the year 1949 and Bhagwan Das had sublet the shop to defendants No. 5 to 7. Defendants No. 1 to 3 were sons of Bhagwan Das. Defendant No. 5 Sugnamal was the son of Thadha Ram, who was real brother of Bhagwan Das. Defendants No. 6 and 7 were sons of defendant No. 5. Defendants took up a case that allotment of the shop on 1.12.1949 in favour of Bhagwan Das was in his capacity as Karta of Joint Hindu Family and that in the year 1954 a partition took place among Bhagwan Das and his sons on the one hand and sons and grand sons of Thadharam (i.e. defendants 5 to 7) on the other hand, in which the tenancy of the shop in dispute fell in the share of Sugnamal (son of Thadharam) and his sons (defendants 5 to 7). The Trial Court did not accept the version of joint tenancy and partition. Judge, Small Causes Court, Varanasi through judgment and decree dated 24.7.1990 decreed the suit for eviction. Against the said judgment and decree Civil Revision (ought to be SCC revision) No. 132 of 1990 was filed. VII Additional District Judge, Varanasi through judgment and order dated 22.4.1995 allowed the revision set aside the judgment and decree passed by the Trial Court and dismissed the suit.
(3.) THE Revisional Court has placed much reliance upon alleged partition of 1951 among Bhagwandas his sons and his nephews and grand nephews. If Bhagwandas alone was the tenant then there was no question of partition of tenancy in between him and his sons nephews and grand nephews. The act of partition of tenancy rather fortified the case of the landlord -plaintiff that the shop in dispute had been sub let. Revisional Court was unnecessarily swayed by the fact that landlord was aware of the subletting, if any, for long and hence his failure to object and to initiate eviction proceedings for long amounted to consent, acquiescence or waiver. Under the old Rent Control Act as well as new one, consent for sub letting can be only in writing. In view of this even if it is assumed for the sake of arguments that the landlords were aware but did not object to the sub letting, it cannot give any benefit to the tenant vide B. Poddar v. A. Poddar : AIR 2001 SC 2841 and G. Singh v. R.K. Aneja : AIR 2002 SC 1003. Accordingly, I am of the opinion that judgment and order passed by the Revisional Court is erroneous in law.;