LODHA, J - (1.) THIS is an appeal by the plaintiff-landlords from the appellate judgment and decree by the Additional Civil Judge, Ajmer who upheld the decree against the original tenant Ramjidas, and one sub-tenant Heeralal, but dismissed the suit against the heirs of Suryanand another sub-tenant in respect of the ground-floor of the suit premises.
(2.) IT is undisputed that the premises in question were originally let out to Ramji das who sublet the ground-floor (except one Baithak) on rent on Rs. 16/- to Suryanand. In the suit for ejectment filed by the plaintiffs, not only the tenant Ramjidas but the alleged sub-tenants Heeralal and Suryanand were also impleaded on the ground that a part of the premises had been sub-let to them without the consent of the land-lord. Two additional grounds were relied upon for rejectment, viz default in payment of rent and nuisance. All the defendants resisted the suit and after trial the learned Munsiff, Ajmer City (East) held that all the three grounds relied upon by the plaintiffs, viz. default in payment of rent, sub letting and nuisance were proved and in this view of the matter he decreed the the plaintiffs' suit for ejectment against all the defendants. A decree for arrears of rent was also passed but that point is no more in dispute, and is not a subject-matter of this appeal. Aggrieved by the judgment and decree of the trial court the legal representatives of Ramjidas as well as those of Suryanand filed appeal as both Ramjidas and Suryanand had died during the pendency of the suit. Heeralal did not file appeal. The learned Additional Civil Judge, Ajmer by his judgment dated 21-3-1966 partly allowed the appeal and modified the judgment and decree by the trial court to the extent that the plaintiffs' suit for ejectment against the heirs of Suryanand in respect of the ground-floor was dismissed. Rest of the decree was maintained. Dis-satisfied with the judgment by the first appellate court the plaintiffs have filed this appeal. A preliminary objection has been raised on behalf of the respondents as to maintainability of the appeal on the ground that the heirs of Ramjidas (original tenant) have not been impleaded in the appeal. In my opinion, this preliminary objection is very much connected with the merits of the case itself, and I will therefore deal with it after discussion on merits of the case. The only contention raised on behalf of the appellants is that the learned Additional Civil Judge has erred in coming to the conclusion that by virtue of the provisions of sec. 23 of the Delhi and Ajmer Rent Control Act, 1952 Suryanand became a tenant of the plaintiffs and since he had not incurred any liability to be ejected no decree for ejectment could be passed against him. It may be pointed out here that Delhi and Ajmer Rent Control Act, 1952 was repealed on 27. 11. 1957. The Court below has by placing reliance on an agreement executed between Suryanand and the plaintiff Aditya Prakash dated 21-9-1957 (Ex. B. I) came to the conclusion that the tenancy of Ramjidas in respect of the ground-floor came to an end on 21. 9. 1957 and that by virtue of sec. 20 of the Delhi and Ajmer Rent Control Act, 1952 (which will hereinafter be called the Act of 1952) Suryanand became directly a tenant of the landlord Aditya Prakash.
(3.) I have carefully examined the contents of Ex. B. I. It is undoubtedly signed by the landlord Aditya Prakash, and the sub-tenant Suryanand. There is, however, nothing in it to indicate that the landlord had accepted Suryanand directly as his tenant. On the other hand, it is clearly mentioned therein that Suryanand had been admitted as a sub tenant by the tenant Ramjidas on a monthly rent of Rs. 16/ -. All that can be inferred from Exb. I. is that the landlord consented to Suryanand being admitted as a sub-tenant of Ramjidas. It is frankly conceded before me that ever since Ex. B. I was written, no rent was accepted by the plaintiffs from Suryanand. Ex. B. I does not bear the signatures of Ramjidas at all. It has, however, been strongly urged that in the circumstances of the case Ramjidas' tenancy qua the ground-floor must be deemed to have been terminated by implied surrender. I am, however, unable to accept this contention. A line of distinction must be drawn between a sub-tenant being admitted by the tenant with the consent of the landlord and a case where the original tenancy between the landlord and the tenant comes to an end and a fresh tenancy is created directly between the landlord and the sub tenant. It would not be correct to say that whenever a sub-tenant is inducted into the premises by the tenant with the consent of the landlord the tenancy of the original tenant must be deemed to have been determined by implied surrender. There must, of necessity be some thing more to indicate that the original tenancy came to an end and a fresh tenancy between the landlord and the sub-tenant came into existence. My conclusion therefore is that in the facts and circumstances of the present case on the basis of Ex. B. I. alone no direct relationship of landlord and tenant can be said to have come into existence between the plaintiff and Suryanand. I may now advert to the provisions of sec. 20 of the Act of 1952 which reads as below: "where the interest of a tenant of any premises in determined for any reason any sub-tenant to whom the whole or any part of such premises has been lawfully sublet whether before or after the commencement of this Act shall subject to the provisions of this Act be deemed to be come the tenant of the landlord on the same terms and conditions on which he would have held from the tenant if the tenancy had continued. " The very first ingredient for the application of this section is not fulfilled in the present case as the interest of the tenant was not determined. Admittedly it had not been determined by the landlord and there was no implied surrender by the tenant as already discussed above. Ofcourse a part of the premises was undoubtedly sublet to Suryanand lawfully because on the basis of Ex. B. I it can safely be said that it was with the consent of the landlord. But by fulfilment of this condition alone applicability of the section is not attracted. Thus, in my opinion, Suryanand did not become a tenant of the plaintiff by virtue of sec. 20 of the Act of 1952 though it was undoubtedly in force at the time Ex B. I. was written and signed by the landlord Aditya Prakash. In view of what has been stated above, the learned Additional Civil Judge, was not justified in coming to the conclusion that Suryanand became a direct tenant of the plaintiffs by virtue of sec. 20 of the Act of 1952. The other finding recorded by the learned Judge that since Suryanand had been admitted as a sub-tenant with the consent of the landlord he could avail of the protection provided under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is obviously wrong and the learned counsel for the respondents has not rightly relied upon this argument. ;