GOYAL, J. - (1.) LEGAL heirs of the deceased-original landlord Sh. Suraj Narain have challenged the judgment and decree dated 26. 9. 1998 whereby the learned Additional District Judge No. 7, Jaipur City, Jaipur dismissed the suit of eviction.
(2.) ON 5. 8. 1991 the original landlord Sh. Suraj Narain filed the suit for arrears of rent and eviction against the tenant Sh. Prem Chand and sub-tenant Sh. Rambabu-the defendant No. 2 with the averments that a big hall consisting of two shops of municipal Nos. 94 & 95 was let out to the defendant No. 1 Prem Chand on monthly rent of Rs. 250/ -. Rent note was executed on 7. 4. 1978. Lateron monthly rent was enhanced to Rs. 300/ -. The plaintiff sought eviction on the grounds of default in payment of rent since January, 1987, material alteration in the year 1987 converting this hall into two separate shops in `l' shape and opening a new door by breaking the southern wall, sub-letting of one portion of shop No. 95 to the defendant No. 2 and non-user of the remaining shop by the defendant No. 1 for a period of about four years. By way of amended plaint filed in February, 1996 it was pleaded that during pendency of the suit the defendant No. 1 further let out a portion of 4ft x 4ft out of shop No. 95 to one Sh. Nagarmal who is carrying on STD-PCO in the said portion of 4ft x 4ft. In written statement filed in November, 1992 while admitting the tenancy all the grounds of eviction were denied with pleas that the plaintiff Suraj Narain purchased goods worth Rs. 16,590/- through the defendant No. 1 who paid that price and thus this amount has to be adjusted against the arrears if rent; that the defendant No. 1 was authorized to carry on repair, addition- alteration and construction in the suit shop vide rent note; that both the defendants are carrying on business in partnership and thus no part of the suit shop was let out to the defendant No. 2 and the defendant No. 1 is carrying on his business in remaining portion of the shop. Vide amended written statement, the fact of sub-letting to Sh. Nagarmal has also been denied with a plea that Sh. Nagarmal is brother of the defendant No. 2 and the telephone connection has been obtained in his name. On the basis of the pleadings of the parties, following issues were framed :- ************ Evidence was recorded. Vide impugned judgment issue No. 1 was decided in favour of the plaintiff. Since arrears of rent as determined by the Court were paid, no decree of eviction on account of first default was passed. Remaining issues No. 2 to 8 and 11 were decided against the plaintiff. While deciding the issue No. 9 against the defendants the suit for eviction was dismissed. During pendency of the suit, the defendant No. 1 Prem Chand also expired, hence his legal heirs were brought on record. I have heard learned counsel for the parties and have gone through the evidence. On the basis of the submissions made by learned counsel for the appellants, following points arise for determination:- (i) Whether the defendant No. 1 materially altered the premises without the permission of the landlord ? (ii) Whether the tenant has sub-let and parted with the possession of the part of the suit premises to the defendant No. 2 and his brother Sh. Nagarmal ?
(3.) SECTION 13 (1) (c) of the Rajasthan Premises (Rent of Control and Eviction) Act, 1950 (in short the Act) provides that the decree of eviction may be passed in case the tenant has without the permission of the landlord made or permitted to be made any such construction as in the opinion of the Court has materially altered the premises or is likely to diminish the value thereof. The alterations pleaded in paras 4 and 5 certainly amount to material alterations. In written statement, these alterations except opening a new door have been admitted. The trial court observed that the defendant No. 1 was authorized to make such alterations according to rent note Ex. 1. According to learned counsel for the appellants, the tenant was not authorized to make such additions/alterations and he did not obtain any permission of the landlord, while learned senior counsel for the respondents supported the findings of the trial court on this point. Ex. 1 is the rent note. At page 2 of Ex. 1 it was agreed between the landlord and the tenant that the tenant would maintain the suit shop in a proper way and whenever any necessity so arises, the tenant would have a right to repair, to make additions/alterations and construction in the suit premises on his own expenses without claiming any compensation from the landlord. The above contents of the rent note in no manner of doubt authorises the tenant not only to carry out repair works but also to make additions/alterations and to raise new construction. Hence, no permission of the plaintiff-landlord as provided under SECTION 13 (1) (c) of the Act was required by the tenant. The trial court further observed and rightly so that according to the plaintiff these alterations were carried out in the year 1987 and no objection whatsoever was raised by the plaintiff prior to filing the present suit in August, 1991 simply in view of the authority given to the tenant-defendant No. 1 vide rent note Ex. 1. Therefore, decision on this point does not call for any interference in this appeal. Section 13 (1) (e) of the Act provides that the decree of eviction may be passed in case 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. It is not in dispute that the defendant No. 2 is carrying on business in a portion of shop No. 95. Neither in the plaint nor in the written statement it has been pleaded since when the defendant No. 2 is carrying on business in a portion of the suit shop. In para 7 of the written statement, it is pleaded that at present business under the name and style of Rajasthan Ayurvedic Medical Store in the partnership of both the defendants is going and prior to that joint business under the name and style of Rajasthan Cycle Store was being carried out by both the defendants. According to the statement of P. W. 1 Dr. Prem Purohit-son of the original landlord Sh. Suraj Narain, the defendant No. 2 was inducted as a sub- tenant in the year 1987. The statement of P. W. 3 Ramesh Chand was recorded on 2. 8. 1997. According to his statement, the defendant No. 1 handed over the possession to the defendant No. 2 Rambabu 8-9 years ago. It comes to the year 1987-1988. D. W. 1 Sh. Pokhar Das is the son and power of attorney holder of the defendant No. 1 Prem Chand. According to his statement, he is in possession of the entire shop and the defendant No. 2 Rambabu is only his partner. He next stated that his father Prem Chand is the owner of Rajasthan Ayurvedic Medical Store. In cross-examination, it was stated that the defendant No. 2 Rambabu carried out the business of cycles from 1980 to 1989. He pleaded ignorance as to when the defendant Rambabu started business of medicines. At the end of his statement, he stated that partnership deed was executed and the same would be produced, if not produced so far. D. W. 3 Rambabu deposed that he is carrying on business in the suit shop as a partner of the defendant No. 1 Prem Chand. Ex. A4 is the partnership deed. In cross-examination he stated that whether this partnership firm consisting of both the defendants was got registered with the Registrar of Firms or not can only be verified from the documents and he has no other documents of partnership except Ex. A4. He admitted that the partnership business of cycles was carried out from the year 1980 to 1989 and he has got the balance-sheet but the same has not been produced in the Court and there is no reason also for non-production of the same in the Court. He further stated that after closing down the cycle business the present business of Ayurvedic medicines is being carried out but no partnership deed to carry on this business was executed. It was also stated by him that he opens this shop at about 8 a. m. and closes the same at about 9-10 p. m. but the key earlier remained with the defendant No. 1 and now with D. W. 1 Pokhar Das. He next stated that his firm's complete name is Rajasthan Ayurvedic and Medical Store. D. W. 4 Vinod Chand is the son of D. W. 1 Pokhar Das. According to his statement, his father and the defendant Rambabu carry on business of Ayurvedic medicines since 1989-1990. According to learned counsel for the appellants, the possession of the defendant No. 2 Rambabu over the disputed portion of the shop has been proved and burden lies upon the defendants to prove the partnership. According to him firstly no partnership since 1980 has been proved and Ex. A4 document was prepared lateron and the same is not reliable as no account books, balance-sheet or income-tax returns or any other document to prove the facts of partnership and the fact that it commenced in the year 1980 have been produced. It was also contended that assuming that partnership firm was constituted according to Ex. A4, that partnership came to an end after expiry of five years as per Section 42 of the Indian Partnership Act, 1932 (in short the Act, 1932 ). Reliance has been placed upon Karumuthu Thiagarajan Chettiar and Another vs. E. M. Muthappa Chettiar (1), and Santiranjan Das Gupta vs. Messrs. Dasuram Murzamull Learned senior counsel Mr. Mehta appearing for the respondents contended that the partnership continued even after the expiry of five years and as per Ex. A4 it is well proved that partnership firm was constituted in the year 1980 and thus after expiry of five years as per Ex. A4 the partnership was at will and he referred Section 7 of the Act, 1932. ;