A.K.MATHUR, J. - (1.) THIS second appeal is directed against the judgment and decree passed by the District Judge, Udaipur. That the shop situated in Udaipur outside Delhi Gate was rented out by plaintiff Gulam Abbas to Gopal Saran on August 1, 1961. The rent was paid up to May 31, 1971. Thereafter, some rent was due. The plaintiff filed a suit for eviction on the ground that he had not paid rent for 39 months at the time of filing of the suit as defendant was a defaulter. Secondly, it was pleaded that the defendant had allowed the roof of the shop to be used for advertisement and a board of Zetor Tractor has been fixed without the written consent of the plaintiff, as such defendant had parted away the part of possession. The plea of material alteration was also raised. The defendant contested the suit and tendered the rent after May, 1971 by money orders but same was not accepted. Therefore, it was deposited in the Court under Section 19-A of Rajasthan Premises (Control of rent and Eviction) Act, 1950, for the months of June, July August and September, 1971 and since then he is depositing the same as such he is not defaulter. As regards fixing of the board he pleaded that board has been fixed but not embedded in the roof or walls. There is no material alteration. It was also pleaded that board is not of the advertising agency but defendant himself has fixed this board while doing the business of advertising, as such defendant has not parted away with the possession. The defendant also put a counter claim of Rs. 950/- for expenses and Advocate's fee in proceedings under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred as 'the Act'). On the pleadings of the parties, six issues were framed. The trial Court after recording necessary evidence and hearing the parties decreed the suit of plaintiff and further decreed the sum of Rs. 350/- as arrears of rent for April, September and December, 1972 and May, June, July, and September of 1973. Aggrieved against this, the defendant filed an appeal before the District Judge, Udaipur and learned District Judge, after hearing the parties accepted the appeal of the defendant and set aside the judgment and decree of the trial Court. Hence, the present second appeal.
(2.) MR . Maheshwari, learned counsel for the appellant urged that placing of the board by the defendant on the roof of the rented premises amounts to parting away with the possession. The learned counsel submitted that this aspect has not properly been considered by the appellate. Court counsel also submitted that learned appellate Court has committed a grave illegality in not properly appreciating the evidence on record. It was urged that it has been established that when the rent was tendered and when it was refused which led him to deposit the rent in the Court under Section 19-A of the Act. Learned counsel has also joined the issue of the material alteration. Mr. Gupta, learned counsel for the respondent submitted that he has not parted away with the possession. Since he is dealing in the advertising business, therefore, he has stalled this board and stalling of this board does not amount to parting away with the possession. The learned counsel submitted that all the amount has been withdrawn by the plaintiff which has been deposited under Section 19-A and therefore, this argument is not open to the appellant. Learned counsel also submitted that simply stalling the board on the roof of the shop does not amount to material alteration.
(3.) THE first and foremost question which arise before me is regarding parting away with the possession. Learned counsel invited my attention to Section 13(1)(e) of the Act which lays down that no tenant shall assign, sub-let or otherwise part with the possession without the permission of the landlord. Section 13(1)(e) reads as under :- "Sec. 13 : Eviction of tenants - (1) Notwithstanding 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 payrent therefor to the full extent allowable by this Act, unless it is satisfied - (e) that the tenant has assigned, sub-let or otherwise parted without the permission of the landlord's interest therein or; ......... In the present case, the plaintiff has not disputed that the advertisement board was stalled on the roof of the shop. The defendant has also not disputed that he is getting the rent for this board and he has accepted the document Ex. 6 which Paramount Services has written to the plaintiff Gulam Abbas. Ex. 6 reads as under :- 20.1.1977 Shri Gulam Abbas Bhalam Wala Udaipur. Dear Sir, We wish to write that we have taken the site for putting up commercial board on the terrace of the shop of Saran Optician, Udaipur. This Shop is with us for the last 1/2 year. Yours faithfully, Paramount Services, Sd/- Partner A perusal of this document Ex. 6 clearly shows that the Paramount Services has stalled this board on the terrace of the shop and the site is with them for last 6 months. It clearly transpires that the terrace of the shop has been parted away to the Paramount Services for installing the advertisement board. The expression parting away with the possession has come up before the Hon'ble Supreme Court in Shalimar Tar Products Ltd. v. H.C. Sharma and others, AIR 1988 Supreme Court 145 : 1987(2) RCR 671. It was observed that "In order to constitute subletting, there must be parting of the legal possession by the lessee. Parting of legal possession means possession with the right to include and also right to exclude others". ;