GUPTA, J. - (1.) THE defendant has filed second appeal in a suit for eviction filed on the ground of reasonable and bonafide necessity, default in payment of rent and subletting/parting with possession of part of the rented premises.
(2.) THE learned trial Court found the question of default in favour of the plaintiff and giving benefit of Section 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII 1950), hereafter to be referred to as `the Act', the suit was not decreed on that count. Regarding the other two grounds, being reasonable and bonafide necessity, being covered by issues No. 5, and 11, and subletting/parting with possession being covered by issue No. 4, were decided against the plaintiff, and thus, the suit was dismissed vide judgment and decree dated 6. 3. 79. In appeal, learned District Judge, vide impugned judgment reversed the finding of the learned trial Court on issue No. 4, and held, that the defendant has allowed Tulsi Das to sit on the Chabutari, where Tulsi Das sells his merchandise by keeping a Peti. Thus, it is established that the defendant has sublet the disputed Chabutari to Tulsi Das, and has parted with possession. It was also found, that the mere fact that Tulsi Das has subsequently been removed, hardly makes any difference. Regarding bonafide necessity, the learned Lower Appellate Court found it to be not established; and regarding comparative hardship, it was found to be more in favour of the tenant. Thus, the finding of the learned trial Court on issues No. 5 and 11 were maintained. Consequently, in view of the finding on issue No. 4, the suit of the plaintiff for eviction was decreed. This appeal was filed on 12. 11. 81, and vide order dated 13. 11. 81, the appeal was admitted, by framing the substantial question, being, as to whether on facts and in the circumstances of the case, the learned Additional District Judge was not right in decreeing the plaintiff's suit for ejectment on the ground of subletting or parting with the possession under Section 13 (1) (e) of the act. During pendency of the appeal, the plaintiff Banshi Lal expired on 12. 7. 86, and his legal representatives were ordered to be substituted vide order dated 8. 12. 87. Thereafter, the other proforma respondent, being Sukh Lal, also expired, and an application was filed for substitution of his legal representatives. The matter was going on in the service of legal representatives of respondent No. 1, the proforma respondent. However, in the meanwhile, the appellant Mishrimal also expired on 2. 12. 2004, and thereupon, an application was filed alleging that the appellant has left behind him four sons and one daughter, and that, he executed a will dated 1. 2. 86, in favour of his grandson, Nihal Chand S/o Lal Chand Parakh, in respect of the suit shop, and consequently, it was contended that Nihal Chand alone represents the estate of the deceased-appellant, and right to continue the appeal survives upon him alone. A Photostat copy of the Will was also enclosed, and it was prayed that Nihal Chand be substituted in place of deceased Mishrimal. On this application, vide order dated 17. 3. 2005, notice was ordered to be issued to the respondent, and also to the natural heirs of the deceased-appellant, on the details being provided by the appellant. In this process, on 27. 4. 2006, the Court felt concerned, in view of the fact, that appeal is as old as of the year 1981, and noticed, that the service on the legal representatives of respondent No. 1 is not being effected despite several attempts, during last more than 11 years, and therefore, the summons were ordered to be published in the local newspaper. Likewise, regarding natural heirs of the appellant also, it was directed, that the summons be got served by publication in local newspaper having circulation in Jodhpur, and somehow, as the things happened, at this time, nothing was noticed about the service or non-service of legal representatives of respondent No. 2, the plaintiff. Be that as it may, thereafter, on 25. 5. 2006, it was found, that the applications are not being opposed by anybody, despite publication in newspaper, and accordingly, both the applications were allowed, i. e. substitution of legal representatives of the appellant, so also the respondent No. 1. It is a different story, that as a matter of fact, by then, the legal representatives of respondent No. 2 were not served with the notice of the application for substitution of legal representatives of the appellant. However, by this order, Nihal Chand was taken on record as legal representative of the appellant, pursuant to the will dated 1. 2. 86. Thereafter, on 5. 7. 2006, it was found that the respondent No. 1 was impleaded only as a proforma defendant. In that view of the matter, it was ordered, that the service of his legal representatives need not be awaited, as the effected party was only respondent No. 2, who was being represented. Accordingly, the matter was ordered to be put up for hearing on 10. 7. 2006. Since then, the matter is being continuously heard till 13. 7. 2006. Arguing the appeals, it was contended by the learned counsel for the appellant, that even from the pleadings of the plaintiff, if read in conjunction with the evidence led on the side of the plaintiff, no case of subletting or parting with possession of the rented shop has been made out. It was contended that there is material variance between pleading and proof, on the side of the plaintiff, inasmuch as, what has been pleaded in plaint, for that no evidence whatever has been led, and whatever has been sought to be proved, in that regard there is no pleading in the plaint. Then, it was contended, that in any case, all that has been found by the learned lower Appellate Court, which might be said to be a finding of fact, is as under:- Izfroknh us rqylhjke dks pcwrjh ij csbkuk 'kq: dj fn;k gs vksj ogka rqylhjke viuh isvh yxkdj lkeku csprk gs** Which finding, in the circumstances of the case, even if taken on the face value, does not make out a case of subletting, or parting with possession, as contemplated by Section 13 (1) (e) of the Act. Reliance was placed on a Division Bench judgment of this Court, in Amir Ahmed vs. Yusuf, reported in 1985 RLR 718, on the judgments of Hon'ble the Supreme Court, in Dipak Banerjee vs. Lilabati, reported in (1987) 4 SCC 161, Delhi Stationers vs. Rajendra, reported in (1990) 2 SCC 311, and Gopal Saran vs. Satyanarayan, reported in (1989) 3 SCC 56, and it was contended, that the basic gravamen of the requirement of subletting, or parting with possession is, that the person put in possession should have been put in exclusive possession, i. e. it should be having exclusive right to enjoy the property, which must be in lieu of payment of some compensation, or rent, and even if it were to be considered to be parting with possession, it must be shown, that the person in whose favour the possession was parted, was put in possession with right to include, and also a right to exclude others, and that, in the event of anything short of it, it would not amount to either subletting, or parting with possession.
(3.) WITH this preface, I was carried through the pleadings of the parties, and the evidence led on the side of either parties, and therefrom, it was sought to be contended, that even from the entire material on record, all that can be said to be made out is, that Tulsi Das was simply allowed to sit on a part of Chabutari, and was allowed to keep his box, but then, since admittedly the shop was rented out to the appellant, and Tulsi Das had no right to include anybody else, or exclude anybody- else, nor was he paying any rent, nor was he in possession, as such it cannot be said, that the rented premises have been sublet. The other limb of argument is, that according to the plaint, the shop was pleaded to have been sublet, while in the evidence, all that has been said is, that Tulsi Das was allowed to sit on Chabutari, while from a reading of relevant para 5 of the plaint itself, it is clear, that the plaintiff is conscious about the distinction between the shop and Chabutari, inasmuch as, the shop along with Chabutari has been alleged to be let out, i. e. to be the rented premises, and in that background, the allegation is, of having sub-let the shop, (and not Chabutari), therefore, the decree on the ground of subletting could not be passed. Alternatively it was submitted, that Tulsi Das was allowed to sit on Chabutari only for two days, in view of the circumstances shown by the defendant, being, that the shop of Daulat Ram was undergoing Deepawali cleaning, and in that process he was simply allowed to sit, in view of the fact, that Daulat Ram and appellant are close relatives. It was also submitted that this version of the appellant has been illegally discarded by the learned courts below, for want of pleading, while the case of the plaintiff, about allowing Tulsi Das to sit on Chabutari, has been accepted, even without any pleading in that regard being there. Various other detailed submissions were made, which I will deal later, and it was submitted, that decree is liable to be set aside. Since at the beginning of the argument, learned counsel for the respondent had raised an objection to the effect, that since the decree for eviction had been passed against Mishrimal by the learned lower Appellate Court on 20. 8. 1981, the status of Mishrimal was only that of statutory tenant, and during pendency of the appeal he having died on 2. 12. 2004, Nihal Chand, who has been substituted in place of appellant Mishrimal, being not falling within the category of one of the persons enumerated in Section 3 (7) (b) of the act, as persons entitled to be treated as tenant, in the event of death of tenant, the appeal no more survives, as Nihal Chand does not enjoy any protection of law. To reply this contention, in the opening arguments itself, learned counsel for the appellant argued the matter, and submitted, that Nihal Chand is the grand son of the appellant Mishrimal, being son's son, and in his favour a will was executed by Mishrimal, way back on 1. 2. 1986, and therefore, Nihal Chand is heir of deceased, and as is clear from the averments of the will, that Nihal Chand was living with the appellant Mishrimal, and was looking after his business since long before the death of Mishrimal, Nihal Chand clearly falls within the definition of the expression ``other heir in accordance with the personal law applicable to him who had been. . . ordinarily carrying on business with him in such premises as member of his family upto his death'', and therefore, he clearly falls within the definition of ``tenant'' as mentioned therein, and therefore, he is very much entitled to the protection of the Act, and the appeal survives. Elaborating the argument, it was submitted, that the question of heirship is covered by the provisions of Hindu Succession Act, which in its scheme divides succession into two types, one being interstate, as provided by Chapter-II, and the other being Tastamentary, as provided by Chapter III, comprising of Section 30, and a person succeeding to the estate of the deceased, by either of nature of succession, is obviously an `heir', and since Hindu Succession Act is the personal law, which was applicable to the deceased, Nihal Chand clearly falls within the definition of ``heir'', by testamentary succession. Arguing upon the scope, and ambit of expression ``heir'', relying upon the judgments in Gulzara Singh vs. Smt. Tej Kaur reported in AIR 1961 Punjab 288, Smt. Angurbala vs. Debarata Mullick reported in AIR 1951 SC 393, and N. Krishnammal vs. Ekambaram reported in AIR 1979 SC 1298, it was submitted that heir should be given a broad, and general meaning so as to include all those on whom the estate of the deceased devolve, whether intestate or under a testamentary instruments like will, and the findings in Angurbala's case were stressed, where Hon'ble the Supreme Court held, that the word ``heir'' cannot normally be limited to issue only, it must mean all persons who are entitled to the property of another under law of inheritance. It was also submitted, that this judgment was followed in N. Krishnammal's case. ;