KOTHARI, J. - (1.) THIS appeal under Section 100 CPC is directed against the concurrent eviction decree of two courts below on the ground of subletting by the defendants-tenant. The substantial question of law involved in this case is : Whether after the dissolution of the firm M/s Dal Chand Vishveshwar Das, there is sub-letting to M/s Chand Ratan Shyam Sunder when the two partners of the original firm are the partners of the M/s Chand Ratan Shyam Sunder?
(2.) THE first appellate court vide its judgment and decree dated 28/4/1994 upheld the decree of the learned Civil Judge, Bikaner dated 6/8/1993 by which the suit no. 24/74 was decreed by the learned trial court. THE plaintiff Smt. Pana Devi w/o Shri Vishwanath and Smt. Durga Devi wd/o Bheru Baksh Vyas, both are daughters of Battu Bai, who owned the suit premises `bara' (ground) situated in Bikaner, which was let out to the defendant no. 1 Rameshwar Lal son of Ganesh Das for carrying on the business of coal by the Firm M/sdal Chand Vishveshwar Das (`dcvd' for short) on 13/7/1966 for a monthly rent of Rs. 210/ -. THE suit property was sold by said Smt. Battu Bai to the present plaintiffs Smt. Pana Devi and Smt. Durga Devi on 20/9/1969 and present plaintiffs filed a suit for eviction on the ground of default, subletting and other grounds. However, since the eviction decree was finally passed on the ground of subletting only and the substantial question of law as indicated above has been framed only on this ground, this second appeal is to be decided with reference to the above substantial question of law only. THE issue no. 3 pertaining to subletting as framed by the learned trial court in this case was as under: Whether the defendant no. 1 has parted with the possession of a portion of suit premises in favour of defendant no. 3 for its business? *** The defendant no. 3 M/s Chand Ratan Shyam Sunder (`crss' in short) also carried on the business of a coal merchant in the suit premises and the present plaintiffs filed a suit in question on 16/8/1974 inter alia on the ground that the defendant no. 1 Rameshwar Lal, who was original tenant for carrying on the business under the name and style of M/s DCVD, as aforesaid, has parted with the possession of the suit premises in favour of defendant no. 3 M/s CRSS. Since the arguments of learned counsels for both the sides have centered round this issue only, which has already been reproduced above, it is also considered appropriate to reproduce the pleadings of the parties in this regard. Para no. 4 (ka) of the plaint reads as under:- *** Mr. M. C. Bhoot, learned counsel for the appellants-defendants-tenant vehemently urged that the learned first appellate court has erred in decreeing the suit on the ground of subletting as there was neither any case set up by the plaintiffs for subletting nor any evidence was available before the courts below to establish the parting with the possession by the defendants tenant. He submits that both the Firms defendant no. 2 M/s DCVD and defendant no. 3 M/s CRSS were family concerns in which at least one of the partners, the mother of defendant no. 1 Rameshwar Lal was common and, therefore, no question of parting with the possession could arise. The principal contention of learned counsel for the appellants- tenant Mr. Bhoot is that in the absence of any pleading in the terms of requirements of Section 13 (1) (e) of the Rajasthan Rent Control Act, 1950 no amount of evidence on the said ground could lead to a decree of eviction against the appellants defendant. Emphasising that without specifically making averment that parting with the possession was without the permission of the plaintiffs, no findings in this regard could be arrived at by the courts below. Referring to para 4 (ka) reproduced above of the plaint, he urged that there is no whisper in the plaint that parting with the possession by the defendant no. 1 in favour of defendant no. 3 was without the permission of the plaintiffs. He also urged that even prior to purchase of property in question by the present plaintiffs on 20/9/69, P. W. 2 Bheru Baksh was looking after the suit property and was collecting rent on behalf of original landlord Smt. Battu Bai and after the said purchase of property by the present plaintiffs, who were daughters of said Smt. Battu Bai, P. W. 2 Bheru Baksh, her son-in-law, continued to collect the rent and vide Ex. A/28 to A/33, one of which document Ex. A/33 was admitted by P. W. 2 -Bheru Baksh indicating that the said rent was paid on letterhead of defendant no. 3 M/s CRSS, therefore, the plaintiffs had admitted the tenancy in favour of defendant no. 3 and there was no question of subletting by defendant nos. 1 and 2 in favour of defendant no. 3. He, therefore, assailed the validity of the findings arrived at by the courts below and submitted that the present appeal deserves to succeed. 5. Mr. Bhoot relied upon the following judgments in support of his submissions. 5. 1 Jagdish Prasad vs. Narain Lal 1996 (2) RLR 262 = RLW 1996 (3) Raj. 45 in which the learned Single Judge of this Court dealing with the grounds of eviction under Section 13 (1) (e) of the Act held that:- Thus the landlord can obtain a decree on this ground if he alleges and proves that the tenant has, (i) assigned (ii) sub-let, 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, sub-letting, or otherwise parting with the possession should be without the permission of the landlord. In Hasmat Rai & Others vs. Raghunath Prasad & Others, 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 sub-let by the tenant but also to plead and prove that such subletting was without the permission of the landlord. The plaintiff has alleged in para 7 of the plaint that the defendant-tenant has sub-let 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 sub-let by the tenant and the major defect in the pleading is that it 9/24 has not been alleged that the sub-letting 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 sub-letting was done without the permission of the landlord. After going through the evidence of the landlord P. H. 1 Narain Lal, I do not find a word that the tenant has sub-let the premises without the permission of the landlord. Therefore, there is not only the absence of the pleadings 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. 5. 2 In Phool Chand & anr. vs. Dr. Gulab Chand 1999 DNJ (Raj.) 771 another coordinate bench of this Court while dealing with Section 13 (1) (a) of the Act in a matter relating to eviction on the ground of default of payment of rent held as under:- The sole object of pleadings is to give fair notice to contesting parties with respect to the case. They are required to meet and to call out points on which parties disagree or differ. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Court to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular causes must take. Order 6 R. 2 CPC lays down affirmatively, that a pleading shall contain, and contain only material facts on which the party pleading relies; and negatively that it shall not contain facts which are only evidence by which such material facts to be proved. The rules of pleadings are also meant to help the Court in narrowing controversies. The facts are of two kinds, `facta probanda and `facta probantia. Facts on which party pleadings relies for his claim or defence are called `facta probanda and the facts by means of which they are to be proved are called `facta probantia. The former are material facts and the latter evidence to prove the former. The words `material facts mean all facts upon which the plaintiffs cause of action or the defendants defence depends. On the facts of the case, the Court further proceeded to hold that: In the case on hand as discussed hereinabove, the foundation of landlords case is based on cryptic averments. The landlord failed to mention the material fact that the tenant did not tender the rent either and non-mentioning of material fact amounts to no pleading and therefore no cause of action arises as is rightly held by the Division Bench of the Madhya Pradesh High Court in Durga Prasad vs. Praveen (supra ). The learned trial court wrongly decided issues 4, 6 and 7 in favour of the landlord. The finding of the learned trial Court is perverse and deserves to be set aside. 5. 3. On the ground that the defendant nos. 2 and 3 being family concerns, therefore, there being no case of parting with the possession or subletting, Mr. Bhoot relied upon a decision of Hon'ble Supreme Court in case of Amar Nath Agarwalla vs. Dhillon Transport Agench AIR 2007 SC 2402 = RLW 2007 (4) SC 2733 in which the Supreme Court held that the mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub letting. Then on the facts of the case, the Court held that where one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm, the legal possession was retained by a partner who was one of the original tenants and, therefore, no case of subletting the premises was made out. 5. 4. Emphasising the need of pleadings the material facts, failing which the evi-dence to fall on ground, learned counsel Mr. Bhoot relied upon a decision of Supreme Court in an election matter in case of Samant N. Balakrishna vs. George Fernandez, AIR 1969 SC 1201 in which in para no. 29 of the judgment, the Court held that: Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between the material facts and particulars but the two are quite distinct. 6. Countering the submissions and arguments of learned counsel for the appellants-defendants, Mr. L. R. Mehta, learned counsel appearing for plaintiffs-respondents-landlord submitted that it was absolutely misconceived on the part of the appellant-defendants to argue that the plaintiffs-respondents had not pleaded the case in terms of language of Section 13 (1) (e) of the Act. Reiterating para no. 4 (ka), reproduced above, learned counsel for the respondents-landlord pointed out that very fact that the plaintiffs stated in heading of para 4 that on the below mentioned grounds, the plaintiffs were entitled to eviction of defendant as the defendants no. 1 and 2 had parted with the possession of the part of the suit premises in favour of defendant no. 3 was enough, and such pleadings having been established by proof during the course of evidence before the learned trial court and findings of subletting having been arrived at by the learned trial court, which were affirmed by the first appellate court also, it cannot be gainsaid by the appellants-defendants that no case of subletting was setup by the plaintiffs-respondents. 7. He further submitted that in para no. 5 of the plaint also the plaintiffs had clearly stated that defendant no. 3 despite notice by the plaintiffs-respondents terminating the tenancy w. e. f. 31/7/74 had failed to handover the possession of the suit premises and, therefore, cause of action arose in terms of averments made in para no. 4 (ka) of the plaint. He also urged that though strictly speaking the partnership firm is not a separate juristic person but for the limited purpose of Order 30 of CPC, the firm is recognized as a separate legal entity and in view of clear written statement of the defendants in para no. 4 of the written statement in which the defendants have stated that defendant no. 3 only was paying rent to the plaintiffs, nothing more remained to be established by the plaintiffs that the defendant nos. 1 and 2 had sublet the premises to the defendant no. 3. Profusely relying upon the statement of P. W. 1 Pana Devi herself and P. W. 2 Bheru Baksh, learned counsel for the plaintiffs-respondents urged that it was clearly established that the defendant no. 1 Rameshwar Lal had parted with the possession of the part of the suit premises in favour of defendant no. 3 M/s CRSS without permission of plaintiffs respondents. He urged that none of the documents Ex. A/28 to A/33, the rent receipts, were admitted by P. W. 2 Bheru Baksh and finding of the courts below to the effect that these rent receipts had been forged was a finding of fact to the effect that the rent was never accepted by the plaintiffs-respondents from the defendant no. 3 Firm CRSS. He submitted that the defendant no. 1 himself in his statements had admitted that there was no partnership deed available with him of the said Firm M/s DCVD and M/s CRSS and though both the Firms were income tax assessees and maintaining regular books of accounts, neither the partnership deeds nor such books of accounts or income tax records were produced by the defendants in the trial court to establish that the said two Firms were common and, therefore, argument of learned counsel for the appellants-defendants that there was one common partner cannot be believed. He further submitted that in para no. 4 of the written statement or in the evidence led by the defendants it was nowhere established that the said two Firms were common family concerns, whereas, on the other hand in the statement of P. W. 1 Smt. Pana Devi and P. W. 2 Bheru Baksh it was clearly established that defendant no. 1 had categorically stated to them that he had nothing to do with the defendant no. 3 Firm M/s CRSS which was being looked after by Chand Ratan, his younger brother and he himself was doing separate business of Gold Smith at Sarrafa Bazar at Bikaner. Therefore, learned counsel for the respondent submitted that plaintiffs had proved before the learned trial court that the defendant no. 1- Rameshwar Lal had parted with the possession of the suit property in favour of defendant no. 3 without the permission of the plaintiffs and thus, the case of subletting had clearly been established before the courts below and the decree of eviction deserves to be upheld. He also referred to Ex. 15, a letter of bank in form no. `l- 438' dated 8/12/1976 in which the Bank had stated that Firm M/s CRSS had only two partners namely Chand Ratan and Mathura Devi. 8. Mr. Mehta relied upon the following decisions in support of his submissions. 8. 1 Bhagwati Prasad vs. Chandramaul AIR 1966 SC 735. In this case the Honble Supreme Court while dealing with the Order 6 Rule 2 CPC as to how the pleadings should be made, held in para no. 10 as under:- If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But here the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice and in doing justice to one party the Court cannot do injustice to another. 8. 2 In Ram Swarup Gupta vs. Bishun Narain Inter College and others AIR 1987 SC 1242 the Honble Apex Court held that the pleadings should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. In para no. 6 of the judgment, the Court laid down as under:- It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is no desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. 8. 3 In Hari Singh vs. Kanhaiya Lal AIR 1999 SC 3325 = RLW 1999 (3) SC 415, the Honble Supreme Court in para no. 16 of the judgment held as under:- So far the question of sub-letting the finding was based on the deposition of the witnesses to whom the disputed premises was sublet. Their testimony was rejected by the High Court mainly on the basis that there is no detail pleading pertaining to the period of sub-tenancy and even the witnesses has not produced any receipt of payment of rent. It is not in dispute that there is pleading that the disputed premise was sub-let. The detail, if any, can be supplemented through evidence. Mere lack of details in the pleadings cannot be reason to set side concurrent finding of facts. Similarly, the High Court interfered with the concurrent finding of facts that nuisance was created by the respondent by obstructing the passage leading to the appellant house by keeping onion bags leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is also supported by the Commissioner report submitted in the present proceedings. The finding recorded on sub-letting and nuisance by both the courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do not find any substantial question of law arising therein. Learned counsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their worthiness for reliance. It is neither a case of no evidence nor perverse finding. All these submissions are within the realm of appreciation of evidence which should not have been interfered by the High Court far less for us to examine. 9. Having heard learned counsels at length and having given my thoughtful consideration to the facts of this case and law laid down by the Honble Supreme Court, this Court is of the opinion that there is no force in the submissions of learned counsel for the appellants-defendants that there was any lack of pleading on the part of plaintiffs while raising ground of subletting or parting with the possession of the suit premises in favour of defendant no. 3. Even if the words without permission of the plaintiffs was not specifically averred in para no. 4 (ka) of the plaint as reproduced above, it was sufficient when the plaintiffs at the top of para no. 4 stated that the plaintiff is entitled to eviction on the said ground of parting with the possession of portion of the suit property in favour of defendant no. 3. That averment made in plaint having been supported by ample evidence brought on record by the plaintiffs clearly establishes that defendant nos. 1 had parted with the possession of portion of suit property in favour of defendant no. 3 Firm. Whether the defendant no. 3 Firm was a separate entity or a family concern with common partners was required to be established by the defendants. Despite having in its possession the partnership deed and regular books of accounts and income tax records, nothing of this sort was produced by the defendants before the trial court to establish that there was common partners between the two Firms and there was no parting with the possession by the defendant nos. 1 and 2 in favour of defendant no. 3. On the other hand, plaintiffs have established that defendant no. 3 Firm was a different and independent Firm in which the defendant no. 1 Rameshwar Lal had no concern. The admission of defendant no. 3 himself that he was carrying on his own business as Gold Smith in Sarrafa Bazar at Bikaner, whereas, Chand Ratan, his younger brother, was carrying on said coal business in the suit premises under the name and style of M/s CRSS and he had no concern with M/s CRSS clearly shows that there was parting with the possession by the defendant nos. 1 and 2 in favour of defendant no. 3 and obviously the same was without the permission of plaintiffs because that was the main ground raised by the plaintiffs seeking eviction of defendant no. 3 from the suit premises. The alleged documents namely rent receipts and letter head of M/s CRSS were not proved before the trial court, on the contrary, the said rent receipts Ex. A/28 to A/33 on which signatures were denied by P. W. 2 - Bheru Baksh were found to be forged documents by the courts below. 10. In the absence of any evidence to the effect that the rent was accepted by the plaintiffs from the defendant no. 3, despite plea to this effect raised in para no. 4 of the written statement, the said fact could not be proved by the defendants. Thus, the Courts below cannot be said to have committed any error in arriving at the finding that the defendant nos. 1 and 2 had parted with the possession of suit premises in favour of defendant no. 3. 11. The appellants-defendants have also filed application in this appeal under Order 41 Rule 2 CPC, which was earlier filed with wrong appeal number given in the title and, therefore, the same was not tagged with this appeal. Thereafter, at the time of hearing, learned counsel for the appellants filed copy of the said application along with condonation application and since reply to the said application was already filed by the respondents, therefore, the said application was considered. In the said application, since the grounds relating to lack of pleadings for issue no. 3 relating to sub-letting has been raised and that was the principal argument of learned counsel for the appellants-defendants and the same has been considered by this Court, said application under Order 41 Rule 2 CPC is treated as allowed. Though, issue no. 3 relating to sub-letting and issue no. 11 relating to denial of title have been jointly dealt with by the courts below, however, since the eviction decree was passed by the learned first appellate court only on the issue no. 3 relating to sub-letting or parting with of possession and that alone has been considered by this Court as sufficient for awarding the decree of eviction, it is not considered necessary to deal with the issue no. 11 nor the learned counsels raised any argument with regard to issue no. 11. 12. As already stated, there is no lack of pleadings on the part of plaintiffs in the present case and on a total consideration of pleadings, evidence and findings of courts below, concurrently arrived at on appreciation of relevant evidence, this Court finds no ground to upset the findings of courts below in the present second appeal. The decree of eviction on the ground of subletting under Section 13 (1) (e) of the Act, therefore, deserves to be upheld and the substantial question of law framed above deserves to be answered in affirmative and against the appellants-defendants. 13. Accordingly, this second appeal of defendants-tenant is liable to be dismissed and the same is dismissed with costs throughout. The appellants-defendants shall handover the vacant and peaceful possession of the suit premises to the plaintiffs-respondents within a period of two months from today and shall also pay mesne profit to the plaintiffs @ Rs. 5000/-per month commencing from the month of November, 2008 every month before 15th of next month till the actual handing over of the vacant possession. The decree be made accordingly..;