Dr. Vineet Kothari, J. - (1.) The plaintiff -appellant -landlord, a Deity known as 'Shree Ji Maharaj (Bhagwan)' through its Pujari, Vijay Narayan Pathak s/o Ratan Lal Ji Pathak has filed the present second appeal in this Court on 13.08.2001, aggrieved by the reversal of the eviction decree dated 06.08.1997 of the learned trial court in Civil Original Suit No. 78/1989 - Shriji Maharaj (Bhagwan) through Priest Vijay Narayan Pathak v/s. Shri Ramgopal & Ors., by the learned appellate court, allowing the defendants' Civil Appeal No. 52/2000 - Shri Ramgopal & Ors. v/s. Shriji Maharaj (Bhagwan) through Priest Madanlal s/o Ratanlal Pathak on 08.05.2001.
(2.) The learned trial court had decreed the eviction suit on 06.08.1997 inter alia filed on the ground of subletting of the demised premises, a Nohra situated adjacent to the Temple of the Deity of Shriji Maharaj (Bhagwan), the landlord, giving the following findings in favour of the plaintiff: - -
(3.) The defendants' appeal came to be allowed by the learned appellate court on 08.05.2001 with the following findings in favour of the defendants -tenants: - - "Although no written partition deed has been produced in the in evidence but the oral evidence adduced by the defendants has not been rebutted by the plaintiff witnesses. But they have shown their ignorance about the family status of Dinesh Kumar and purchasing the ice factory from the funds of joint family property. The conditions of lease are written so the literal meaning of these conditions is very important with the intention of the parties while they enter into an agreement of lease. I gone through the lease deed and in the lease deed it is not essential that we may read in between the lines, but the document as stands today will be gone through as a whole. In the fourth line of the registered lease deed it has been specifically mentioned that Madanlal and Shyamsunder partners first party, this word includes their legal heirs, successors and digar muntjim i.e. Another concerned person will be deemed to have jointly executed this lease. It means this lease deed was executed as partners of Shankar Ice Factory and their legal heirs and another concerned persons are included as executant of this rent note. The pith and substance theory can be applied while dealing with the construction of such type of document and it is crystal clear from the very first four -five lines that this lease deed was executed actually in the name of Shyamsunder and Ramgopal in their individual capacity, but actually this was executed in the name of Shanker Ice Factory. They were not individual tenants but tenants as partners of Shankar Ice Factory. Had there been any intention of individual tenancy between the executor or executant? There would have been mentioned about the legal heirs, successors and other concerned persons who are said to be joint executant. The another concerned persons means the persons who will divolve an interest in this ice factory later on. This was within the contemplation of the parties, who had executed this lease deed. The learned lower court had ignored this aspect while interpreting the fourth line of this rent note Ex. 1. The learned Civil Judge (Senior Division), Shahpura has also ignored the admitted fact in evidence by PW.1 Madanlal and PW.2 Satyabandhu that these premises was let out to Shankar Ice Factory. A categorical admission is on record in the sworn in statement of Madanlal and Satyabandhu. So the individual capacity of Shyamsunder and Ramgopal cannot be accepted and they have executed this lease deed on behalf of Shankar Ice Factory. The next point is about the conditions. As previously discussed in para No. 11 clearly prohibits any act of subletting but there is specifically mention that if the first party i.e. defendants in relation to any business wants to run this factory in partnership, they can use this nohra in running this ice factory and this will not be treated as subletting. This document is binding on both the parties and while mentioning this fact that if the first party wants to run the ice factory business in partnership they can use it. It means they intended that actually the incoming partnership or any other person concerned with the partnership business can be a tenant and in para No. 12, it has also been mentioned that in case of death of any tenant, the tenancy will not be terminated automatically but the present tenants will be replaced by their successors and partners and this lease deed will be deemed to have been executed between the landlord and the so called successor and intending partners. It means any partner join this partnership later on and he will be also treated as tenant. This para No. 11 of lease deed Ex. 1 clearly reveals the intention of the executor and executant that this rent deed was not executed by Ramgopal and Shyamsunder in their individual capacity. This lease deed was actually taken by Shanker Ice Factory whosoever may be a partner or sole proprietor. Now I come to the status of Dinesh Kumar who is working in this ice factory as sole owner and proprietor and this fact is admitted. This fact is admitted that Ramgopal and Dinesh Kumar are real brothers and the evidence may be either oral or documentary. Madanlal has purchased this factory as stated by Shyamsunder, an outgoing partner. He has stated on oath without any rebuttal that this property was purchased from Jamnalal. At the time of purchasing this ice factory property of four sons of late Shri Madanlal were living together. No contrary evidence has been adduced by the plaintiff side. Simply they have pleaded ignorance but this is not a rebuttal of defendant's evidence. So it is crystal clear that after the death of Madanlal, this property came in the share of Dinesh Kumar. So actually Dinesh Kumar is subsequent owner of this property and as per para No. 11 and four -fifth line of the rent deed Ex. 1 he can be inducted as a partner for sole proprietor of this ice factory and this tenancy cannot be terminated. The date as mentioned in para No. 12 of this rent deed Ex. 1 includes dissolution. Although it has not been specifically mentioned but legal implication of such facts cannot be overlooked. This is the factual position established by the defendants in their favour and individual capacity of Ramgopal and Shyamsunder has not been established by the plaintiff as per the above discussion. On the basis of the above discussion, it is clear that Dinesh Kumar is owner of this factory and actually Shankar Ice Factory is tenant. As discussed above, in case of parting with exclusive possession of premises to another person is essential element of subletting. But close kith and kins in mess and living is deemed members of family and there is no subletting. It has been held by our Hon'ble Rajasthan High Court reported in, 1971 RLW Page 64,. and also by Hon'ble Rajasthan High Court reported in : AIR 1999 (Supreme Court) page 3087 and by our Hon'ble Rajasthan High court reported in, AIR 2000 (Rajasthan) page 142. Although the learned counsel for the respondent has cited : AIR 1988 (Supreme Court) page 145 wherein Hon'ble Apex Court has held that consent of landlord must be in writing and must be to the specific subletting. Requirement that consent should be in writing cannot be regarded as directory as it is in public interest and such requirement cannot be waived. The learned counsel for the respondent has also cited : AIR 1988 (Supreme Court) page 396 and argued that eviction sought on grounds of subletting and the lower court has come to the conclusion that the factum of subletting is established and in appeal the Appellate Court should not interfere with the finding of the lower court in absence of any perversity. The factum of parting with the possession is established. The only point is the relationship of brothers between the Ramgopal and Dinesh Kumar but subtenant terms means not only the parting with possession but there must be a vesting of possession by tenant in another person by divesting himself not only of physical possession but also of right to possession. He has cited, Western Law Cases (Rajasthan) 1996 (1) page 536. Regarding the relationship of brothers, the learned counsel for the respondent has cited judgment of our Hon'ble Rajasthan High Court reported in, AIR 2000 page 333 (Rajasthan), and argued that defendant/tenant Ram Gopal and subtenant Dinesh Kumar though brothers, but were living apart and there is a positive admission of sub -tenancy about transfer of possession exclusively. So the fact of parting with the possession permanently is established. The learned counsel for the respondent has cited, 1965 (Supreme Court) page 414 and, RLW 1965 page 197 and argued that the business of Dinesh Kumar is separate from Ramgopal and it amounts to subletting. Principle laid down in this has not been disputed, but the facts of this case are quite different and the nature of the tenancy created in the present suit is relating to Shankar Ice Factory. The possession has not been parted with for consideration which is an essential element of subletting, but the owner Dinesh Kumar has possessed this factory as an owner. The Shankar Ice Factory is actually a tenant and sole proprietor of Shankar Ice Factory is Dinesh Kumar. A person at one time cannot be main tenant as well as sub -tenant. So these rulings are not applicable to the present facts of this appeal. Hon'ble Rajasthan High Court has clearly held that exclusive possession for consideration within the meaning of Clause E of sub -section 1 of Sec. 13 of the said Act lies on the landlord. Further liability of entailing eviction under Sec. 13(i)(e) of the Act on the ground "otherwise parting with the possession" is extendable to strangers parting exclusive possession for consideration who are neither heirs nor family members of the tenant referred to under sub -clause A within the meaning of sub -clause B of Clause (vii) of Sec. 3 of the said Act. It is admitted that Ramgopal has not parted with the exclusive possession for consideration. Parting with possession for consideration is another important element for subletting. Whether Dinesh Kumar is neither heir nor family member of tenant Ramgopal? The Hon'ble Rajasthan High Court has held that in such cases brother of the tenant are not stranger but the family of original tenant. Hon'ble Rajasthan High Court has held that their exclusive possession over the premises in dispute let out to him for pecuniary benefits, the decree for eviction passed against him within the meaning of clause E of sub -section 1 of Sec. 13 would not be sustainable. It is more so when the landlord also failed to adduce an iota of evidence to establish that the tenant was living separately from his real brother and other family members and, therefore, Ramgopal's brother Dinesh Kumar was not members of joint Hindu family. On the contrary, they have pleaded ignorance but the defendants have established this fact by adducing cogent and convincing evidence that Madanlal, Ramgopal, Rajkumar and Dinesh Kumar having a joint family status during the lifetime of Madanlal and later on separated. This property was purchased from the funds of the joint family property by 'karta' of Hindu undivided joint family late Shri Madanlal. In this manner, subletting has not been established by the plaintiff. Be that as it may, we may assume for the sake of arguments that Ramgopal has parted with the exclusive possession of this premises to Dinesh Kumar. But the main element of subletting is that such subletting took place without the permission of the landlord. Whether the landlord has granted permission of such subletting? The term 'consent' has a wider meaning which include oral and in writing. Where non -consent is pleaded by the landlord in cases of parting with possession, it means without written consent. But this clause does not speak of the previous permission of the landlord, thus, a subsequent rectification of the transfer of sub -let of the premises may of liability of tenant from eviction. The law requires the consent of landlord from subletting by the tenant. I do not mean that such consent of the landlord must be obtained prior to the subletting. In the absence of the word 'previous consent' the subletting can be subsequently rectified by the landlord, as held in, 1971 RCJ page 241. Next question is whether implied consent can be inferred? The consent of subletting is not established from the mere fact that the landlord has realized the rent after subletting in the absence of proof that landlord had, than the clear knowledge of such sub -lease., 1969 WLN page 17 (Supreme Court) is very clear on this point. The fact that the subletting by tenant was within the knowledge of the landlord who kept silent for 2 -3 years or so effect of inaction and acquiescence of landlord who took no step to eject tenant. It must be held that it has not been proved that such parties alleged to have been subletting without the consent by landlord by the tenant, to the sub -tenant is without the landlord's consent. From the evidence as discussed above, it is admitted that Dinesh Kumar paid the rent even of the time when Ramgopal and Shyamsunder was tenant and Satyabandhu has admitted that the plaintiff Madanlal accepted that rent and cheque was encashed. Dinesh Kumar was looking after this factory and it is alleged that he is a trespasser. This suit was instituted in the month of December, 1988. Dinesh re -employed and upto the season of ice i.e. summer season of year 1989 his services were terminated. It means he worked as munim with Dinesh Kumar, and he was residing with his grandfather. The rent was paid regularly by Dinesh Kumar. They have accepted this rent and this shows a clear acquiescence of the landlord that they have consented this act of subletting and this rectification clearly reveals the consent and acceptance as discussed above clearly reveals the consent and acceptance of this so called subletting. So, on this ground the tenant or subtenant has the possession cannot be evicted. The learned lower Court's appreciation is not at par with the established legal as well as factual position. Actually this property was leased out to Shankar Ice Factory and Dinesh Kumar owned by Shankar Ice Factory. The landlord has acquiesced and gave consent by accepting the tenancy of Dinesh Kumar. So, issue No. 2 and 4 are decided in favour of the defendants and against the plaintiff. The learned lower Court's judgment is liable to be set aside as having erroneous appreciation of law as well as factual aspect.";