P.NAOLEKAR,J. - (1.) THE plaintiff-respondent filed suit against the defendant-appellant for ejectment from the suit premises on the allegations that the appellant is tenant of the respondent in the suit premises for monthly rent of Rs. 35/-; the tenancy-month commences from the 9th of each calendar month; he purchased the suit premises by registered sale-deed dated 17.6.77 from one Jai Chand for a consideration of Rs. 14,000/-. The suit is filed on the grounds of default in payment of rent, subletting and reasonable and bona fide necessity of residence of the plaintiff. The defendant-appellant denied the grounds alleged by the plaintiff for ejectment. After decision of the suit by the trial Court, the defendant-tenant moved an application before the lower appellate Court under Order 41 Rule 27, CPC for bringing certain documents on record. The said application was rejected by the lower appellate Court. Both the Courts below have decreed the suit of the plaintiff on the ground of subletting which is a ground provided under Section 13(1)(e), Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short, referred to hereinafter as 'the Act') and on the ground of reasonable and bona fide necessity provided under Section 13(1)(h) of the Act.
(2.) ON appeal being preferred this Court has framed the following substantial questions of law : "1. Whether without specific plea regarding want of consent of landlord for subletting the suit premises, no foundation for ground of eviction under Section 13(i)(e) of the Act of 1950, is laid, in view of Section 108(j) of the Transfer of Property Act. 2. Whether, in the facts and circumstances of the case, the lower appellate Court erred in law in rejecting application under Order 41 Rule 27 CPC filed by the defendant-appellant for leading evidence concerning bona fide and reasonable necessity by holding that the documents sought to be produced are not relevant if so what is its effect on the finding on issue No. 3 ? 3. Whether in the facts and circumstances of the case, the present suit for seeking a decree for eviction against the appellant was not maintainable, on the ground setforth in Clause (h) of sub-section (1) of Section 13 of the Act of 1950 in view of Section 14(s) of the said Act ?" I will take up question Nos. 1 and 3 framed by this Court first. To obtain a decree under Section 13(1)(e) of the Act it is necessary for the plaintiff to plead and prove that the tenant has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Under Section 108 of the Transfer of Property Act there is no constraint on the lessee's right to sub-lease the whole or any part of his interest in the property. Therefore, the lessee under the Transfer of Property Act could sublet the premises let out. It is only by virtue of sub-section 13(1)(iii) and (v) that restriction is imposed on the lessee to sublet the premises without the permission of the landlord. Thus the landlord can obtain a decree on this ground if he alleges and proves that the tenant has, (i) assigned, (ii) sublet, or (iii) otherwise parted with, the possession of the whole or any part of the premises, (iv) without the permission of the landlord. Therefore, assignment, subletting or otherwise parting with the possession should be without the permission of the landlord. In Hasmat Rai v. Raghunath Prasad, AIR 1981 SC 1711, the apex Court has laid down that the burden of establishing any of the grounds for ejectment of the tenant under the Act is on the landlord. Before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings requires that such facts must be alleged and, thereafter, proved. It is well established proposition that any amount of proof offered without the pleading is generally of no relevance. To make out a ground under Section 13(1)(e) of the Act, it is necessary for the landlord not only to plead and prove that the property had been sublet by the tenant but also to plead and prove that such subletting was without the permission of the landlord.
(3.) THE plaintiff has alleged in para 7 of the plaint that the defendant-tenant has sublet the premises to some other person and he is serving in the Railways. The pleading is completely missing as to whom the accommodation has been sublet by the tenant and the major defect in the pleading is that it has not been alleged that the subletting was effected without the permission of the landlord. According to me, to make out a ground under Section 13(1)(e) of the Act, it is necessary for the plaintiff to plead and prove that subletting was done without the permission of the landlord. After going through the evidence of the landlord, P.W.1 Narain Lal, I do not find a word that the tenant has sublet the premises without the permission of the landlord. Therefore, there is not only the absence of the pleading but also the proof. The Courts below have committed a grave error of law in granting decree against the tenant for ejectment under Section 13(1)(e) of the Act.;