C.M. Lodha, J.
1. The defendant Bhagwat Prasad has filed this second appeal from the judgment and decree by the District Judge, Bharatpur dated 8-11-1966 by which the plaintiff-respondent's suit for ejectment from the shop in dispute was decreed.
2. Plaintiff-respondent Dwarka Prasad leased out the shop in question situated in Deeg on 28-3-1955 to the defendant on a monthly rent of Rs. 20/-, and he filed the present suit in the Court of Munsiff, Deeg on 18-5-1965 for eviction on two grounds viz that he required the shop in question for his own reasonable and bonafide necessity &that; the defendant had sublet the shop in question to one Gulab and Ishardas. The defendant denied the allegations regarding personal necessity of the landlord as well as subletting. After recording the evidence of the parties the trial court held that neither the reasonable and bonafide necessity of the plaintiff had been established, nor it was proved that the defendant had sublet the shop in question to either Gulab or Ishardas. Consequently the plaintiff's suit was dismissed.
3. The plaintiff Dwarka Prasad then filed an appeal from the judgment & decree of the trial court and the same has been allowed by the District Judge, Bharatpur and the plaintiff's suit for eviction has been decreed. The learned District Judge has concurred in the finding of the trial court that the reasonable and bonafide necessity of the plaintiff was not established. On the question of subletting he has come to the conclusion that subletting of the shop by the plaintiff to Gulab and Ishardas as such is not proved but it was nevertheless established that the defendant had parted with the possession of the property to Gulab and Ishardas and thereby incurred the liability to be ejected under Section l3(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Aggrieved by the judgment and decree of the first appellate court the defendant has come in second appeal to this Court.
4. Learned Counsel for the appellant has submitted that the plaintiff had not come forward with the case of parting with the possession of the property. but had only set up a case of subletting, which having failed it was not open to the first appellate court to have granted relief to the plaintiff on the basis of a new case of parting with the possession of the shop in dispute by the landlord In the second place he has argued that all that has. been established by the plaintiff on the record is that Gulab used to sit on the shop in question off and on for the purpose of doing a minor job of a tailor such as fixing buttons on clothes and therefore it cannot be salt that the defendant had parted with the possession of the shop. So also with respect to Ishardas the contention of the learned Counsel is that the shop in question is situated in a vegetable market and merely because Ishardas some times used to put a few vegetables in the shop though he carried his business in front of the shop on the public road or 'Farad' as it is called, it cannot be said that Ishardas had been given possession of the shop by defendant. On the other band Mr. H.P. Gupta, learned Counsel for the respondent has submitted that the facts established on the record and the finding arrived at by the learned District Judge clearly show that the defendant had parted with the possession of the shop in favour of Gulab and Ishardas and this finding being one of fact cannot be inteferred with in second appeal.He has also urged that the finding of the two courts below against the plaintiff on the question of reasonable and bonafide necessity, deserves to be set aside.
5. So far as the question of reasonable and bonafide necessity of the landlord is concerned, I may state at once that I do not see any thing wrong with the conclusion arrived at by the learned District Judge in this respect. The plaintiff's case was that he wanted his son to start business in merchandise in the shop, in as much as his own business as a 'Sharaf' has begun to wane on account of the Gold Control Order. Amittedly the plaintiff has taken no steps to set up such a business to which he is a perfect stranger. Moreover merely on account of the introduction of the Gold Control Order it cannot be said that the business of sale and purchase of gold and silver ornaments cannot be carried on. At any rate the learned District Judge was not impressed with the plaintiff's evidence and I do not see any reason to take a different view of the matter. Morever it is a question of pure fact whether the plaintiff has been able to establish his reasonable and bonafide necessity and the learned District Judge has not committed any error of law in arriving at the finding which he did Consequently I do not see any force in the contention of the learned Counsel for the plaintiff-respondent so far as may the question of reasonable and bonafide necessity of the landlord goes.
6. This brings me to the more important point viz. whether the plaintiff can succeed on the question of subletting or parting with the possession of the shop? It it correct that the plaintiff has not been able to prove that Gulab or Ishardas has been paying rent to the defendant for the use of the shop in question. Therefore, it is not possible to hold that the defendant had sublet the shop in question or any part of it to either Gulab or Ishardas. The question, however, remains whether in the facts and circumstances of the present case it can be said that the defendant has parted with the possession of the whole or any part of the shop. In case of sub-letting also there is parting with the possession of the premises to the sub-lessee. The additional circumstance in subletting is that rent is also paid or is payable by the sub-tenant to the tenant. The element of parting with the possession however is there. The plaintiff has stated in para No. 5 of the plaint that the defendant has let in Ishardas and Gulab as tenants in the shop in question and both of them are carrying on their respective business in the shop. Thus there is a definite averment in the plaint that the defendant has allowed Gulab and Ishardas to carry on their respective business in the shop. This does imply that the defendant has parted with the possession of the shop in question and in sharing it jointly with them with further allegation that he has kept them as sub-tenants. In these circumstances it cannot be said that the learned District Judge made out a new case for the plaintiff at the stage of second appeal by holding that the defendant has parted with the possession of the shop in question. I am also of the view that no prejudice has been caused to the defendant in this respect.
7. The question, however, remains whether the plaintiff has succeeded in establishing that the defendant had parted with the possession of the shop in question, whole or in part. The learned District Judge has held on the basis of the evidence of P.W. 1 Dwarka Prasad, P.W. 4 Chiranjilal, P.W. 7 Shrinath. D.W. 1 Bhagwat Prasad, D.W. 3 Ishardas, D.W. 4 Kahna and D.W. 5 Heta that Gulab is occupying a part of the premises and carries on the work of a tailor therein, and further that Ishardas deals in vegetables and carries on the business of selling the same on commission at the shop in dispute, and also stores the vegetables in the shop and sell them outside the shop. He has also found that the evidence regarding charging of any rent from Gulab and Ishardas is so slender that it cannot be concluded that the shop has been let out to them by Bhagwat Prasad.
8. I shall take up the case with respect to each of these alleged sub-lessee Gulab and Ishardas separately. On a careful reading of the evidence of both the parties it appears to me that Gulab is just a tailor by name and cannot do the job of a full-fledged tailor except fixing buttons etc. At one stage the defendant stated that Gulab was his servant but later on he did not stick to this position & stated that Gulab used to come at his shop & used to do the minor job of fixing buttons etc. on the prepared clothes. To the same effect is the statement of Gulab. It appears to me that in order to help Gulab in earning his livelihood the defendant used to allow him to sit at his shop off and on. In these circumstances I am not prepared to hold that the defendant had parted with the possession of the shop to Gulab.
9. As regards Ishardas, learned Counsel for the appellant states that he never carried any business of selling vegetables or storing the same at the shop in dispute, and if on certain occasions he put some of his unsold vegetables in the shop, it cannot be said that Ishardas had been given possession of the shop in question. He has submitted that the learned District Judge has not taken into consideration the evidence of PW. 2 Rajan, P.W. 3 Medilal and P.W. 9 Inspector Kesavdeo and that the evidence of D.W. 5 Heta does not establish that the defendant had parted with the possession of the shop in favour of Ishardas. I have gone through the statements of P.W. 2 Rajjan, P.W. 3 Medilal and P.W. 9 Keshav Deo. P.W. 2 has no doubt stated that he never saw Ishardas carrying on any business at the shop in question and that there are many sewing machines in the shop, but he does not know which tailors are working there. This witness was allowed to be cross-examined by the plaintiff even though he was not declared hostile. The statement of P. W. 3 Medilal is to the effect that not only the defendant but some other persons also do tailoring work in the shop among whom Gulab is one and that a vegetable seller also used to sit there but he did not know his name. In the course of his cross-examination he has stated that vegetables are stored in the shop. All that is stated by P.W. 9 Keshav Deo, Inspector, is that that in the application submitted by the defendant - Bhagwat Prasad under the Market Act he has not mentioned that he keeps any servant in the shop and that when he went for checking he did not see any servant in the shop. Thus the statements of these three witnesses, in my opinion, do not in any way weaken the case of the plaintiff. On the other hand, D.W. 5 Heta has stated in clear terms in the course of his cross-examination that Ishardas does the business of 'Arat' in the shop in dispute and also sells water melons there. Learned Counsel for the appellant failed to point out any misreading of evidence by the learned District; Judge. However, be has argued by reference to certain decided cases that putting the vegetables in the shop by Ishardas even though he carries his business outside the shop on the 'Farad' in the market would not amount to parting the possession of the shop in his favour. He has referred to Ramgamanner Chetty v. Desu Rangiah : AIR1954Mad182 , Radhey Piari v. Kalyan Singh , Nandumal v. Ramjilal , Associated Hotels of India v. R.N. Kapoor : [1960]1SCR368 . In my opinion the cases relied upon by the learned Counsel for the appellant are distinguishable on facts. lean, understand that if a hawker while selling goods on payment puts them in a nearby shop at night in a box and the shop-keeper allows him to do so either on personal grounds or on humanitarian consideration, it cannot be said that the shop-keeper has parted with the possession of the shop in favour of such a hawker. But here the position is quite different. Admittedly the defendant is carrying on tailoring business in the shop in question and allowing a vegetables and fruits in the shop regularly would be nothing short of sharing the shop with the vegetable seller. The learned District Judge as already stated above, has come to a firm finding based on the evidence on record that Ishardas stores vegetables in the shop although the selling of the vegetables as such takes place outside the shop. This finding is one of fact and as already stated above there are no grounds pointed out to me for holding that it is in any way vitiated. The only question is whether in the facts and circumstances it can be said that the tenant Bhagwat Prasad had parted the possession of the shop in favour of Ishardas? In my view he has done so.; It is common knowledge that the terms between a lessee and the sub-lessee are within their special knowledge and in exceptional cases it may be very difficult for the landlord to prove those terms. Therefore even though the landlord has failed to establish the sub-letting as such, he has established that the defendant tenant has parted with the possession of the shop and is sharing the same jointly with Ishardas. In this view of the matter I do not see any ground to interfere with the judgment and decree passed by the learned District Judge.
10. I do not see any force in this appeal, and hereby dismiss the same. In the facts and circumstances, however, I leave the parties to bear their own costs of this appeal.
11. Learned Counsel for the appellant prays for grant of leave to appeal to Division Bench. The prayer is being opposed by the learned Counsel for the respondent. In the facts and circumstances of the case I do not consider it a fit case for grant of leave. The prayer is dislalowed.