S.K.LODHA, J. - (1.) THIS reference raises the question regarding construction of the expression 'parted with possession' contained in Section 13(1)(e) of the Rajasthan Premises (Control) of Rent and Eviction) Act, (No. XVII of 1950) ('the Act' here in).
(2.) A learned single Judge of this Court has referred the following questions for consideration by a Division Bench of this Court: (1) Whether a tenant, who allows another person to use the premises or part of the premises can be said to have 'parted with possession of the premises part of the premises' so as to entail the liability of eviction Under Section 13(1)(e) of the Act? (2) Whether conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person constitutes parting with possession Under Section 13(1)(e) of the Act? (3) Whether the decision in Bhagwat Prasad v. Dwarka Prasad and Anr. 1969 WLN 351 in so far it holds that a tenant, by sharing the premises with a third person, can be said to have parted with the possession of the premises, lays down the correct law? We may notice the relevant facts: The plaintiff landlord (respondent) instituted a suit for rent and ejectment against the defendant -tenants who are said to be the legal representatives of the original tenant Allanoor. It was stated in para 3 of the plaint that Amir Ahmed and family are in exclusive possession of the apartments in question. The plaintiff -respondent sought eviction of the defendant -appellant Amir Ahmed and other defendants on the grounds viz., (i) default in payment of rent; (ii) causing damage to the premises; and (iii) sub -letting of half of the Barsali by defendant Amir Ahmed to one Ramjan without the consent of the plaintiff -landlord. The apartments in question are half portion of the Barsali, one kitchen, one latrine, two rooms, chowk and Chabutri on the ground floor of the house described in para 1 of the plaint. The Munsif, Jodhpur City, Jodhpur by his judgment and decree dated May 15, 1980, decreed the suit of the plaintiff -respondent and passed a decree for eviction on the ground that the defendant -appellant Amir Ahmed has sub -let a part of the premises, viz., half portion of the Barsali to Ramjan without the consent of the plaintiff -landlord. An appeal was filed and the learned District Judge, by his judgment and decree dated November 25, 1980, affirmed the decree for eviction. A second appeal was filed. Issue No. 2, which was framed by the learned Munsif Jodhpur City, when translated into English, reads as under: Whether the defendant has sub -let, assigned or parted with possession of the Barsali (premises in dispute) without the consent of the plaintiff? The learned Munsif decided this issue in favour of the plaintiff and against the defendants. The finding is as follows: .........[vernacular ommited text]........... On appeal, the learned District Judge affirmed the finding observing as under: .........[vernacular ommited text]........... Before the learned single Judge, the finding that the defendant -appellant has not parted with exclusive possession over the part of the Barsali which has been leased out to him, was assailed and it was submitted that the appellant had only permitted Ramjan to keep him goods in a part of the Barsali and that on the basis of the record, it could not be held that the defendant had either sublet half of the Barsali to Ramjan or had parted with possession of a part of the Barsali to Ramjan. On behalf of the plaintiff -respondent, reliance was placed on the decision of a learned single Judge of this Court in Bhagwat Prasad's case 1969 WLN 351. The learned single Judge on the basis of the decisions referred to in his referring order dated November 5, 1982, was of the opinion that a distinction has to be down between sharing of the possession of the premises and parting of possession of the premises. According to the learned single Judge, the view taken in Bhagwat Prasad's case 1969 WLN 351 that the tenant by sharing the possession with another person can be said to have parted with possession is contrary to the decisions referred to by him in his referring order and so, the interpretation put in Bhagwat Prasad's case 1969 WLN 351 on the expression 'parting with possession' as used in Section 13(1)(e) of the Act, need reconsideration and as such the aforesaid question have been referred.
(3.) THE material portion of Section 13 of the Act, for the present purpose, is as under: Section 13. Eviction of tenants -(1) Not with standing anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor, to the full extent allowable by this Act, unless it is satisfied:. ... ... (e) that the tenant has assigned, sub -let for otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or. ... ... (2) The Court may presume that premises let for use as a residence were or are sub -let by the tenant in whole or in part to another person, if it is satisfied that such person not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises, or any part thereof for a period exceeding one month otherwise than in commensality with tenant. A covenant not to assign, sub -let or part with the possession of the demised premises is generally contained in a lease -deed and the expression 'part with the possession of the demised premises' has come up for consideration before the English Courts in a number of decisions.;