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RAJASTHAN HIGH COURT
Dwarka Prasad Gupta, S.K.Lodha, JJ.
Amir Ahmed - Appellant
Versus
Yusuf - Respondent
D.B. Reference in Civil Second Appeal No. 225 of 1980.
Decided On : 23-05-1985
RAJASTHAN PREMISES (CONTROL) OF RENT AND EVICTION ACT, 1950 - SECTION 13(1)(E) - PARTING WITH POSSESSION - INTERPRETATION - TENANT'S LIABILITY FOR EVICTION. Whether a tenant, who allows another person to use the premises or part of the premises can be said to have "parted with possession" of the premises or part of the premises so as to entail the liability of eviction Under Section 13(1)(e) of the Act? Whether conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person constitutes parting with possession Under Section 13(1)(e) of the Act? Whether the decision in Bhagwat Prasad v. Dwarka Prasad and Anr. 1969 WLN 351 in so far it holds that a tenant, by sharing the premises with a third person, can be said to have parted with the possession of the premises, lays down the correct law?
Fact of the Case:
The plaintiff-landlord instituted a suit for rent and ejectment against the defendant-tenants on the grounds of default in payment of rent, causing damage to the premises, and sub-letting of half of the Barsali by defendant Amir Ahmed to one Ramjan without the consent of the plaintiff-landlord. The Munsif, Jodhpur City, decreed the suit and passed a decree for eviction on the ground that the defendant-appellant Amir Ahmed has sub-let a part of the premises, viz., half portion of the Barsali to Ramjan without the consent of the plaintiff-landlord. The District Judge affirmed the decree for eviction. A second appeal was filed.
Finding of the Court:
The court held that a tenant who allows another person to merely use the premises or part of the premises cannot be said to have parted with possession of the premises or part of the premises so as to entail the liability of eviction Under Section 13(1)(e) of the Act. The court also held that 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. The court further held that the decision in Bhagwat Prasad's case 1969 WLN 351 so far as it held that a tenant by sharing the premises with a third person can be said to have parted with the possession of the premises does not lay down the correct law.
Issues: 1. Whether a tenant, who allows another person to use the premises or part of the premises can be said to have "parted with possession" of the premises or part of the premises so as to entail the liability of eviction Under Section 13(1)(e) of the Act? 2. Whether conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person constitutes parting with possession Under Section 13(1)(e) of the Act? 3. Whether the decision in Bhagwat Prasad v. Dwarka Prasad and Anr. 1969 WLN 351 in so far it holds that a tenant, by sharing the premises with a third person, can be said to have parted with the possession of the premises, lays down the correct law?
Ratio Decidendi: The court relied on several English and Indian cases to arrive at its decision. In Pebble v. Croathwsite (1897) 13 Times Law Reporter 37, the court held that a lessee who retains the legal possession of the whole of the premises at all material times does not commit a breach of the covenant against parting with the possession by allowing other people to use the premises. In Cheplin v. Smith 1923(1) CH.D. 373, the court held that there was no breach of the lessee's covenant not to part with possession of the premises or part thereof, because no interest in the demised premises had been passed to the companies or either of them. In Stoning v. Abraham (1931) 1 Ch. 470, the court held that a lessee cannot be said to have parted with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from legal possession of that part.
Final Decision: The court answered all three questions referred to it in the negative, holding that a tenant who allows another person to merely use the premises or part of the premises cannot be said to have parted with possession of the premises or part of the premises so as to entail the liability of eviction Under Section 13(1)(e) of the Act, that 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, and that the decision in Bhagwat Prasad's case 1969 WLN 351 so far as it held that a tenant by sharing the premises with a third person can be said to have parted with the possession of the premises does not lay down the correct law.
(1) Whether a tenant, who allows another person to use the premises or part of the premises can be said to have "parted with possession of the premises part of the premises" so as to entail the liability of eviction Under Section 13(1)(e) of the Act?
(2) Whether conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person constitutes parting with possession Under Section 13(1)(e) of the Act?
(3) Whether the decision in
We may notice the relevant facts: The plaintiff landlord (respondent) instituted a suit for rent and ejectment against the defendant-tenants who are said to be the legal representatives of the original tenant Allanoor. It was stated in para 3 of the plaint that Amir Ahmed and family are in exclusive possession of the apartments in question. The plaintiff-respondent sought eviction of the defendant-appellant Amir Ahmed and other defendants on the grounds viz., (i) default in payment of rent; (ii) causing damage to the premises; and (iii) sub-letting of half of the Barsali by defendant Amir Ahmed to one Ramjan without the consent of the plaintiff-landlord. The apartments in question are half portion of the Barsali, one kitchen, one latrine, two rooms, chowk and Chabutri on the ground floor of the house described in para 1 of the plaint. The Munsif, Jodhpur City, Jodhpur by his judgment and decree dated May 15, 1980, decreed the suit of the plaintiff-respondent and passed a decree for eviction on the ground that the defendant-appellant Amir Ahmed has sub-let a part of the premises, viz., half portion of the Barsali to Ramjan without the consent of the plaintiff-landlord. An appeal was filed and the learned District Judge, by his judgment and decree dated November 25, 1980, affirmed the decree for eviction. A second appeal was filed.
On appeal, the learned District Judge affirmed the finding observing as under:
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Before the learned single Judge, the finding that the defendant-appellant has not parted with exclusive possession over the part of the Barsali which has been leased out to him, was assailed and it was submitted that the appellant had only permitted Ramjan to keep him goods in a part of the Barsali and that on the basis of the record, it could not be held that the defendant had either sublet half of the Barsali to Ramjan or had parted with possession of a part of the Barsali to Ramjan. On behalf of the plaintiff-respondent, reliance was placed on the decision of a learned single Judge of this Court
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