KOTHARI, J. - (1.) THIS is defendant's first appeal under Section 96 of the Civil Procedure code against the judgment and decree of eviction dated 2. 7. 1987 passed by the learned Additional District Judge, No. 2, Ajmer decreeing Civil Suit No. 389/85 (18/79) whereby the learned trial Court decreed the plaintiff's suit for arrear of rent and eviction.
(2.) THE facts in brief are that the plaintiff, Kanhaiya Lal Pyare Lal Gotewala gave his portion of property situated at 1193/28, Adarsh Nagar, Ajmer to M/s. Mala Tiles whose proprietor at the relevant time i. e. on 16. 7. 1971 was Smt. Krishna Gupta, defendant No. 1 and her power of attorney holder, Shri Satya Narain Garg, defendant No. 2, who was also close relative, namely, sister's husband of defendant No. 1, Smt. Krishna Gupta, looked after the business of manufacturing of the tiles in the said suit premises. THE rent was paid @ Rs. 175/- per month and in the first instance, the rent for six months was paid by the tenant vide receipt (Ex. 1) for a period of six months, namely, Rs. 1050/ -. It was further the case of the plaintiff that on 8. 8. 1975, the said business of M/s. Mala Tiles was assigned or sold by the defendant No. 1, Smt. Krishna Gupta, to defendant No. 2, Satya Narain Garg, who was earlier her power of attorney holder and thus, the defendant No. 1, Smt. Krishna Gupta, had parted with the possession of the suit property to the said Shri Satya Narain Garg and, therefore, the plaintiff-landlord became entitled to a decree of eviction. THE aforesaid suit was decreed by the learned trial Court in favour of the plaintiff and, therefore, the defendant No. 2, Satya Narain Garg, has filed the present appeal before this Court. The only point pressed before this Court in the present appeal is that there was no case of parting with the possession made out by the plaintiff-landlord and, therefore, the decree of eviction could not be granted by the learned trial Court. Section 13 of the Rajasthan Rent Control Act, 1950 enumerating the grounds of eviction of tenant vide clause (e) thereof provides, "that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without any permission of the landlord". Mr. G. K. Garg, learned counsel appearing for the defendant- appellant-tenant taking this Court through the pleadings and evidence led by the plaintiff as well as defendant, submitted that firstly, the plaintiff had failed to prove that Smt. Krishna Gupta was the tenant of the plaintiff, secondly, defendant No. 2, Satya Narain Garg was put in possession of the suit property right from day one and, therefore, there was no question of Smt. Krishna Gupta, assuming for argument sake that she was tenant of the plaintiff landlord, parting with the possession in favour of defendant No. 2, Satya Narain Garg, who was the person who paid the rent to the plaintiff-landlord as was clear from the receipt (Ex. 1) and he was looking after the business of tenant right from day one of the tenancy and, therefore, learned trial Court could not have decreed the suit of eviction on the ground of assignment, sub-letting or parting with the possession. He urged that while the learned trial Court rightly found that no case of sub-letting was made by the plaintiff while deciding issue No. 6, but it had fallen into error while holding that defendant No. 1, Smt. Krishna Gupta, had parted with the possession to defendant No. 2, Satya Narain Garg and thus, granting the decree of eviction. He submitted that the defendant had not only stated in his written statement in Paras 1 and 8 that both Smt. Krishna Gupta and he were the joint owners of the business firm M/s. Mala Tiles of which he became the sole proprietor w. e. f. 8. 8. 1975, and in the witness given before the learned trial Court also the defence witnesses had so clearly stated before the trial Court and thus, there was no question of parting with the possession in favour of a person, who was already in possession, namely, defendant No. 2, Satya Narain Garg. He, thus, urged for setting aside the impugned decree of eviction. Mr. G. K. Garg, learned counsel for the appellant, relied upon the following judgments in support of his submissions :- 1. Jagan Nath Vs. Chander Bhan (1988) 3 SCC 57 2. Amir Ahmed Vs. Yusuf 1985 (1) WLN 550 3. Mahavir Prasad Verms Vs. Dr. Surinder Kaur 1982 (2) ACJ 205 4. Md. Salim Vs. Md. Ali (1987) 4 SCC 270 5. Gulam Mohammed Vs. Kishanlal 1975 WLN 207 6. Smt. Shanti Devi Vs. Puran Chand and Others 1975 ACJ 651 7. Madhavlal Vs. Smt. Govindi Bai 1971 RLW 64 8. Manchharam Sobhraj Vs. Jamnadas Mulchand AIR 1976 Gujarat 47 9. The Punjab Handloom Weavers Apex Co-operative Society Vs. Smt. Gian Wati 1971 AIRCJ 291 10. Gundalapalli Rangamannar Chetty Vs. Desu Rangiah AIR 1954 Madras 182 In Jagan Nath Vs. Chander Bhan and Others (supra), the Hon'ble Supreme Court laid down that there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. In that case even the tenant-father had retired from the business of Hindu undivided family and the sons had been looking after the business, it cannot be said that the father had divested himself of the legal right to be in possession upon his retirement. If the father was carrying on the business with his sons and the family was a joint Hindu family, and the father has a right to displace the possession of the occupants, i. e, his sons, it is difficult to presume that the father had parted with possession legally to attract the mischief of Section 14 (1) (b) of the Act. This case is distinguishable on the facts because it was a case of joint Hindu family's business and his sons, who were looking after the business continued to look after the same business despite retirement of the father. The possession be de-facto and right of possession de-jure of the father continued despite such retirement and, therefore, the said judgment would not apply to the present case, which is a case of transfer of business by a sale deed on 8. 8. 1975 though to a close relative.
(3.) THE Division Bench of this Court in Amir Ahmed Vs. Yusuf (supra) held that where a tenant allows another person to use merely the premises or part of the premises, he cannot be said to have parted with possession of the premises or part of the premises. THE conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person, does not constitute parting with possession under Section 13 (1) (e) of the Act. As a matter of fact, the ratio of this judgment would support the case of the plaintiff in the present case because here it is not a case of conversion of exclusive possession by the tenant into a joint possession, but it is a case of joint possession converted into exclusive possession of defendant No. 2, Satya Narain Garg. THErefore, the said judgment would go to help the case of the plaintiff rather than the defendant-appellant. In Mohd. Salim Vs. Mohd. Ali (supra), the Hon'ble Supreme Court dealt with a case of agreement between a tenant and alleged sub-tenant conferring right on the appellant sub-tenant to manage or look after the existing business of the tenant in the suit premises for a specified period and enjoining the appellant to make fixed monthly payments to the tenant. In the absence of provision in the agreement for parting of exclusive possession of the premises, it was held that the agreement was one for management of the tenant's business only and, therefore, the appellant could not be held to be a sub-tenant and he would be bound by a decree of eviction passed against the tenant. This case is also clearly distinguishable on facts as there was no such agreement of business for the specific monthly payment by the manager to the tenant and on the other hand, defendant No. 2, Satya Narain Garg claimed to be joint owner of the firm M/s. Mala Tiles though he did not place any evidence on record before the trial Court showing any partnership or something like that in the said M/s. Mala Tiles right from 1971. On the contrary evidence on record clearly shows that he was a merely power of attorney holder of defendant No. 1, Smt. Krishna Gupta, right from 1971 and it is only on 8. 8. 1975 when he purchased the said business of M/s. Mala Tiles from defendant No. 1, Smt. Krishna Gupta through a sale deed dated 8. 8. 1975, that he came in exclusive possession as owner of the business. The said sale deed dated 8. 8. 1975, which was in the exclusive and specific knowledge of the defendant Nos. 1 and 2, were not placed before the learned trial Court for the reasons best known to them. The case of Smt. Shanti Devi Vs. Puran Chand & Ors. of Punjab and Haryana High Court (supra) relied upon by learned counsel for the appellant laid down that there cannot be sub- letting without the lessee parting with the legal possession of the demised premises. The real test to determine sub-letting is whether the tenant has walked out of the demised premises and has handed over its exclusive possession and control to the sub- tenant. A tenant is entitled to use the demised property for any business he likes and if he takes someone as partner in his business the partner does not get the right of tenancy and cannot claim the status a tenant or sub-tenant. Since in the present case, there is no argument raised by either of the parties on the ground of sub-letting, but have argued only on the ground of parting with the possession, the said judgment relied upon by learned counsel for the appellant is of no avail to him. ;