KOCHHAR, J. - (1.) THIS is tenant-defendant's second appeal against the judgment and decree of eviction passed against him on the ground of sub-letting under clause (e) of sub-section (1) of section 13 of the Rajasthan Premises (Control of Rent & Eviction Act, 1950 (the Act ). The brief facts are as under :
(2.) THE defendant-appellant Ram Gopal Goyal had taken on rent the house No. 7-Jha-33, Jawahar Nagar, Jaipur from the plaintiff- respondent Om Prakash Dhir at a monthly rent of Rs. 300/- w. e. f 1-6-76, for running a school by the name of Vivekanand Vidhya Niketan therein. Subsequently, the rent of the said house was raised to Rs. 375/-w. e. f 1-8-1978. THE tenanted house included the open land attached to the house in question. THE defendant, with the consent of the plaintiff, constructed a tin-shed thereon. On 2-8-1980, the plaintiff filed a suit against the defendant slating that the house in dispute was bonafide3 required by him and further that the defendant had, without his consent, sub-let a portion thereof to one Bhayankar Singh, who had running Sharda College for quite some time. It was alleged that the plaintiff wanted to construct the first floor portion on the roof of the house in dispute but the defendant was not permitting him to do so. THE plaintiff thus prayed that a decree for eviction of the defendant-appellant on the grounds of personal bonafide requirement of the house and sub-letting be passed in his favour and further that by way of an injunction the defendant be restrained from causing any hindrance to the plaintiff constructing the first floor portion of the house in dispute. THE suit was contested by the defendant. In the written statement he denied that the house in dispute was bonafide required by the plaintiff or that he had sub-let any portion thereof to Bhayanakar Singh and pleaded that he had, within the knowledge of the plaintiff, only permitted the above said person to use its tin-shed portion for teaching girls for some time. He asserted that the entire house in dispute including its roof had been let out to him and that the plaintiff had no right to construct first floor portion thereon. It was also pleaded that the suit filed on the ground of personal requirement was pre-mature. THE defendant further pleaded that Vivekanand Vidhya Niketan School was a necessary party to the suit. THE learned trial court framed the necessary issues and after hearing the learned counsel for the parties, held that the suit filed on the ground of personal requirement was pre-mature. After recording the evidence produced by the parties, the learned trial court came to the conclusion that the defendant had taken the premises in dispute for running the above said school and that the said school was not the tenant of the plaintiff and, as such, was not a necessary party in the suit. It also held that under the terms of the tenancy, the plaintiff had a right to construct the first floor portion on the house in dispute and the defendant had no right to obstruct the plaintiff. THE learned trial court further found that the tin-shed portion of the house had been sub-let by the defendant to Bhayankar Singh at a monthly rent of Rs. 300/- and, as such, the defendant was liable to be evicted from the house in dispute. Consequently, the learned trial court passed a decree of eviction against the defendant on the ground of sub-letting and also passed a decree of injunction restraining the defendant from obstructing the plaintiff from constructing the first floor portion of the tenanted house. THE appeal filed by the defendant- appellant having been dismissed by the learned Additional District Judge No. l, Jaipur City, Jaipur, the defendant has approached this court by filing this second appeal under section 100 of the Code of Civil Procedure. I have heard the learned counsel for the parties and have perused the record of the case. Shri D. P. Chadha, the learned counsel for the appellant had contended that the finding of the learned lower courts that the tin-shed portion (the tin-shed) had been sub-let by the appellant is perverse and as such the decree of eviction based on the said finding is not legal and is liable to be set aside. Sub-section (1) of section 13 of the Act creates a complete bar to the passing of any decree for eviction of a tenant unless the court is satisfied that one of the grounds mentioned therein is made out and the relevant ground in the present case mentioned in clause (e) thereof and reads as under : - "13 (1) (e)-that the tenant 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. " The above said clause uses three expressions; "sub-let", "assigned" and "otherwise parted with the possession" of the whole or any part of the premises. These three expressions deal with different concepts and apply to different circumstances. In sub-letting there exists a relationship of landlord and tenant as between tenant and sub-tenant and all the incidents of letting or tenancy have to be found. In assignment the tenant divest himself of all the rights that he has as a tenant. The expression "parting with possession" postulates parting with legal possession and means giving possession to persons other than those to whom possession has been given under the lease and parting with possession "must have been by the tenant. " In other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The mere user by another person is not parting with possession so long as the tenant retains the legal possession himself (see the decisions in cases "bmlall vs. Dunlop Rubber & Co. Ltd. , (1) and 'amir Ahmed vs. Yusuf', A lease of an immovable property means a transfer of right to enjoy such property made for a certain time in consideration for a price paid or promised and in such a case the lessee is entitled to be put in possession of the property in question (see sections 105 and 108 of the Transfer of Property Act ). A lease, is, therefore, a transfer of an interest in the properly, which interest in known as lease hold interest and thereupon the lessor parts with his right to enjoy the property during the terms of lease and the lessee gets that right to the exclusion of the lessor.
(3.) AS noted above, whereas the plaintiff-respondent had set up by the case that the defendant-appellant had sub-let the tin-shed in favour of Bhayankar Singh, the case set up by the defendant- appellant was that he had only permitted Bhayankar Singh to use the tin-shed for teaching girls for some time. The learned lower courts have held that since Bhayankar Singh was paying to the defendants-appellant Rs. 300/- per month as rent for the tin-shed, although he was showing the same as donation in the receipts issued to Bhayankar Singh, he had sub-let the tin-shed or parted with its possession to Bhayankar Singh. If this finding of fact is based on the evidence, it is binding on this court and it cannot be disturbed in this second appeal. If, however, this Finding is not based on any evidence it will be termed as a perverse finding and is liable to be set aside in this second appeal. It is, therefore, necessary to scrutinise the evidence produced by the parties in the present case. The plaintiff-respondent appearing as his own witness (PW-1) has deposed that he had learnt from Bhayankar Singh that appellant had sub-let the tin-shed to him and that he had been paying Rs. 300/- per month by way of rent to the appellant. Bhayanakar Singh appearing as PW-2 has deposed that he had taken the tin-shed on rent from the defendant-appellant and was paying Rs. 300/- per month to the defendant-appellant who had been issuing receipts showing the rent in question to be donation to the school and that receipts PW-2/ 1 to PW-2/3 and Ex. 4 to Ex. 6 were issued by the appellant to him in this regard. He has further deposed that he was conducting classes for coaching girls students from 7. 00 A. M. to 1. 00 P. M. for the period from July, 1978 to March-April, 1979 and that in April, 1979 he had left the said tin-shed. In cross-examination he had deposed that he was conducting the coaching classes in the name and style of Sharda College but had not affixed any board of his institute at the house in dispute and the name of his institute had not been written even on any wall. He further deposed that the tin-shed was covered on three sides and was open from the fourth-one and there was no door thereof and that the entire furniture etc. lying in the tin-shed belonged to the defendant-appellant whose employees used to clean the tin-shed etc. and that he had not employed any person to look after the tin-shed or to stay therein and the tin- shed was situated in-side the main gate of the house in dispute and the main gate was locked by the staff of the appellant. In further cross-examination he deposed that he used to conduct the classes only from 7. 00 A. M. to 1. 00 P. M. and the appellant used to have his own classes in the tin-shed before 7. 00 A. M. and after 1. 00 P. M. The above said evidence clearly shows that whereas Bhayankar Singh was using the tin-shed for his coaching classes from 7. 00 A. M. to 1. 00 P. M. during the period from July, 1978 to March-April, 1979 the appellant was also having his classes in the tin-shed before or after the hours during which Bhayankar Singh used to conduct his coaching classes and that not only Bhayankar Singh had no furniture or staff of his own for the tin-shed he had nothing to do with the tin-shed in question before 7. 00 A. M. and after 1. 00 P. M. and the house in which the tin-shed is situated was locked by the staff of the defendant-appellant. Receipts issued by the defendant-appellant to Bhayankar Singh and proved on record as PW-2/1 to PW-2/3 and Ex. 4 to Ex. 6, of course, show that although they indicate that the amounts were received as donation in fact these were the receipts for the amounts received by the appellant from Bhayankar Singh for use and occupation of the tin-shed. The simple fact that monthly payments were being received by the appellant from Bhayankar Singh cannot lead to the conclusion that Bhayankar Singh was the sub-tenant of the tin-shed in question unless the evidence shows that the appellant had transferred his right to enjoy the property in the tin-shed and lost his legal possession thereof. No evidence has been pointed out to me to come to the conclusion that the appellant had transferred his rights to enjoy the property and Bhayankar Singh had acquired it to the exclusion of the appellant. The above said evidence on the contrary shows that the legal possession remained with the appellant and only the licence, within the meaning of section 52 of the Indian Easements Act, was given by the appellant to Bhayankar Singh for using the tin-shed during the specified hours on payment of the sum of Rs. 300/- per month for use and occupation thereof and such amount was by way of licence fee and not rent. The finding of the learned lower courts that the appellant had sub-let the tin-shed or had parted with its possession in favour of Bhayankar Singh, is, therefore, perverse and has to be set aside. ;