S.C. Agarwal, J.
1. This is a tenant's second appeal arising out of a suit filed by the respondent for eviction of the appellant from the premises consisting of half portion of the 'Barsali' and kitchen, latrine, bath room, chowk and chabutra on the ground floor and a room and 'Delana' on the first floor. In the said suit the respondent sought eviction of the appellant on three grounds, ramely, (i) default in payment of rent: (ii) causing damage to the premises, and (iii) sub-letting the half portion of the 'Barsali' by the appellant to one Ramzan without the consent of the land lord. The Munsif, Jodhpur City, Jodhpur, by his judgment and decree dated May 15, 1980, decreed the said suit of the respondent and passed a decree for eviction on the ground that the appellant had sublet a part of the premises, namely, half portion of the 'Barsali' to Ramzan without the consent of the respondent. The said decree passed by the Munsiff has been affirmed in appeal by the District Judge, Jodhpur, by his judgment and decree dated November 5, 1980. Hence, this second appeal.
2. Under clause (e) of Sub-Section (i) of Section 13 of the Rajasthan Premises (Control of Rent and Evictiou) Act, 1950 (herein after referred to as 'the Act') the land-lord is entitled to evict the tenant if the tenant has assigred sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord The question which arises for consideration in this appeal is whether the appellant can be said to have sublet or parted with the possession of any part of the premises without the permission of the land-lord.
3. Shri Rewachand, the learned Counsel for the appellant, has challenged the finding recorded by the two courts below, that the appellant, has sub-let or parted with the possession of a part of the premises, i.e., half portion of the 'Barsali' without the permission of the landlord. The submission of Shri Rewachand is that from the evidence adduced by the plaintiff respondent himself it is established that the appellant has not parted with the exclusive possession over the part of the 'Barsali', which has been leassed out to him and that the appellant had only permitted Ramzan to keep his goods in that part of the 'Barsali'. In support of his aforesaid submission, Shri Rewachand has placed reliance on the statement of p w. 3 Sadiq, who, during the course of cross-examintion has stated that the goods of appellant as well as Ramzan used to be kept in the 'Barsali'. Shri Rewachard has also referred to the statement of Noor Mohammed P.W. 5, who has stated, during the course of cross-examination that in the ' Barsali' the goods of the appellant were also lying. In view of the aforesaid statements of the witnesses examined by the respondent. Shri Rewachand has submitted that it could not be held that the appellant had either sub-let half portion of the ' Barsali' to Ramzan or had parted with the possession of the part of the ' Barsali' to Ramzan.
4. Shri A K. Mathur, the learned Counsel for the respondent, has submitted that even though on the basis of the evidence on record, it may not be possible to hold that the appellant had sublet the half portion of the 'Barsali' to Ramzan, but the said evidence shows that the appellant had parted with the possession of half portion of the 'Barsali' in favour of Ramzan, and, therefore, a decree for eviction has rightly been passed against the appellant under Section 13(1)(a) of the Act. The submission of Shri Mathur is that where the tenant, while retaining the possession of the premises with himself shares the possession of the premises with some other person, he can be said to have parted with the possession of the premises for the purpose of Section (13) 1) of the Act. I support of his aforesaid submission, Shri Mathur has placed reliance on the decision of a learned single Judge of this Court in Bhagwat Prasad v. Dwarka Prasad and Anr. 1969 WLN 351
5. In Bhagwat Prasad v. Dwarka Prasad and Anr. 1969 WLN 351, the premises in dispute were a shop which had been let out to the appellant in that case and he was running a tailoring business in the said shop. In the said case, it was found that the tenant had allowed one Ishardas, a fruit and vegetable seller, to keep his vegetables and fruits in the shop, although the selling of the vegetables, as such, was being done outside the shop. The question which arose for for consideration was whether the tenant was liable to be evicted on the ground that he had sublet the shop or had parted with the possession of the same. The learned single Judge while holding that the land-lord had failed to establish the subletting of the shop by the tenant to Ishardas held that the land-lord had established that the tenant had parted with the possession of the shop in as much as he was sharing the same jointly with Ishardas.
6. The aforesaid decision in Bhagwat Prasad v. Dwarka Prasad and Anr. does lend support to the submission of Shri Mathur. But with great respect to the learned Judge who decided the case, I find myself unable to subscribe to the view that a tenant who retains the possession of the premises with himself but shares the same jointly with another person, can be said to have parted with the possession of the premises so as to justify the passing of a decree for eviction against him under Section 13(1)(e) of the Act.
7. A convenant not to assign, sub-let or part with the possession of the demised premises generally contained in a lease deed and the expression 'part with the possession of the demises premises' has come up for consideration before the English Courts in a number of decisions.
8. In Peeble v. Crosthwaite 1897 (13) TLR 37, it was 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 convenant against parting with the possession by allowing other people to use the premises.
9. In Jackson v. Simons 1923 (I) Ch. 373, the lessee of a ground floor shop, without the consent of the land-lord, had agreed to allow the proprietor of a night club carried on in a basement beneath the shop to use the front part of the shop between the hours of 10.30 p.m. and 2 A.M. for the sale of tickets of admission to the night club. The part so used was the front of the shop, entered through the front door, and was partitioned off from the counter and rest of the shop by a movable screen erected every evening at the close of shop hours and was removed the following morning when the shop reopened. It was held that the aforesaid arrangement did not constitute a breach of the convenant not to assign or underlet, or part with the possession of the demised premises or any part thereof. In the said case the observation in Peeble v. Crosthwaite(2) were relied upon and it was held that all that was conferred by the tenant on the owner of the night club was 'a mere privilege or licence to use a part of the demised premises' and that the tenant retained the legal possession of the whole of the premises at all material times and the lessee who retains such possession does not commit a breach of convenant against parting with the possession and covenant against sharing the possession or occupation there of
10. In Chaplin v. Smit 1926 (1) KB 198, the lessee had assigned his business, that of a motor garage proprietor, to a company of which he was the Managing Director and in which he held a controlling interest. Subsequently, a second company was formed, of which the lessee was the Managing Director, and which took over the business, assets, and liabilities of the first company. It was held that there was noa breach of the lessees covenant not to part with possession of the premises or any part there of, because no interest in the demised premises had been passed to the companies of either of them. In that case, Bankes, L.J. has observed that:
If the new company was ready in the circumstances to enter into on agreement for the use of premises which the appellant remained in possession as lessee to the respondent, there is nothing in law to prevent this arrangement or give it an affect other than that which the parties intended. If so there is no breach of the covenant. The learned judge accepts the fact; but must have held that a man cannot permit another to occupy and at the same time himself remain in possession. In my opinion it is quite possible in law to do so.
The lessee of a double fronted shop with a door in the middle and a counter on either side who has covenanted not to part with the possession of the demised premises or any part there of, may surely agree to allow a licensee to carry on a business in one part while the lessee himself remains in possession of the whole premises and carries on his own business in other part. In the case there is no parting with possession, and I see no distinction between that case and this.
Warrington L. J. has observed as under:
In the absence of authority I should say that a man may abstain from parting with possession of premises although he allows another to use therein, and that then he does not commit a breach of this convenant.
In country villages it is common to find the occupier of a house permitting a bank to use one of the rooms on certain days in the week. It could hardly be said that in so doing he has parted with possession of the house or any part of it.
11. Scrution L. J. has observed as follows:
He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them. In these circumstances the authorities bind us to say that he has not parted with possession of the premises or any part thereof.
In Stening v. Abrahams 1931 (1) Ch.478 the lessee had given to a company a light to use the front of the wall of the premises to erect an advertisement hoarding and the question was whether the lessee could be said to have parted with possession of that front part. It was submitted by the land-lord that the lessee had parted with the possession of the front of the wall and there-by he had committed a breach of the covenant against parting with possession. The aforesaid contention was rejected and it has been observed :
But in my view a lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licencee wholly ousts him from legal possession of that part. If there is any thing in the nature of a right to concurrent user there is no parting with possesion.
12. In Lam Lee Ying v. Lam Shes Tong 1975 AC 247, the lessee was carrying on business from the premises trading in partnership with others, and subsequently, the tenant and his partners agreed to form a limited company for the purpose of acquiring as a going concern, the business carried on by the partnership and there after the land-lord sought eviction of the lesses on the ground of breach of covenant against partine with the possession of the demised premises or any part thereof. The Judicial Committee of the Privy Council placing reliance on the decisions in Peebles v. Crosthwaite 1897 (13) TLR 37, Jackson v. Simons 1923 (I) Ch. D 373, Chaplin v. Smith 1926 (1) KB 198. and Stening v. Abrahams 1931 (1) Ch.478, held that 'a covenant which forbids a parting with possession is not broken by a lessee who in law retains possession even though he allows another to use and occupy the premises'
13. The legal position has been thus summed up in Wood Fall on Landlord and Tenant (28th Edition Vol.I):
So long as the lessee remains in possesion, he may permit another person to use the demises premises without committing a breach of covenant 'not to assign urder-let or part with the possession of the demised premises.
A covenant against parting with the possession of the demised premises is not broken, so long as the lessee retains legal possessior, by allowing other people to use the premises either under a licence or under a declaration trust; allowing use of the premises during certain hours is not therefore a breach of such a covenant though it would be of a covenant against sharing the occupation of any part of the premises.
14. But a lessee cannot be said to part with the possession of any part of the premises unless his agreement with this licences wholly ousts him from legal possession of that part.
15. The expression 'part with the possession' has also come up for consideration before the court in India.
16. Section 13(1)(c)(i) of the Delhi and Ajmer Rent Control Act, 1952, permitted eviction of a tenant on the ground of sub-letting or parting with possession without the consent of the land-lord. In Radhay Piari v. Kalyan Singh the tenant of a shop had allowed a watch repairer to keep a show case in side the shop for the purpose of safety during the night and it was held that the permission to keep a show case to the watch repairer for safety in the night could not amount to subletting or parting with the possession of the demised shop or any part thereof and the possession throughout remained with the tenant.
17. Proviso (b) to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 also enables the landlord to evict the tenant if the tenant has sublet assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. The expression 'parting with possession' contained in the aforesaid proviso' has come up consideration before the Delhi High Court in number of cases. In Gurdial Singh v. Brij Kishore and Ors. 1970 RCJ 1001, a learned Judge of Delhi High Court (Rajinder Sachar, J.) has considered the decisions of the English Courts as well as the Indian Courts on the point and has held that simply because the tenant had allowed a person to use or share the premises, it does not amount to parting with the possession of the whole or part of the premises. In the said case, the learned Judge has considered the decision of this Court in Bhagwat Prasad v. Dwarka Prasad and Ors. (1) and has expressed his disagreement with the conclusion arrived at in the Bhagwat Prasad v. Dawarka Prasad and Ors. (1) and has observed that sharing does not amount to parting with the possession of the premises.
18. In Hazari Lai v. Gian Ram 1972 RCR 74, a Division Bench of the Delhi High Court, while construing the expression 'sublet, assign or otherwise parted with possession' contained in cl (b) to the proviso of Sub-section (1) of Section 14 of the Delhi Rent Control Act has observed as follows
Clause (b) to the proviso to Sub-section (1) Section 14 of the Rent Act uses three expressions namely 'sub-let', 'asigned' and 'other-wise parted with the possession' of the whole or any part of the premises without obtaining the consent in writing of the land-lord. These three expressions deal with different concepts and apply to different circumstances. In sub-letting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incident of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression 'parted with the possession' undoubtedly postulates, as has been held in the cases mentioned above, the parting with legal possession. As we understand it, parting with the possession means giving possession to persons other than those to whom possession has been given by the lease and 'the parting with possession' must have been by the tenant. The mere user by other persons is not parting with possession so long as the tenant retains the legal possession himself or, in other words, 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. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with the possession so long as, during his absence, tenant has a right to return to the premises and be in possession thereof A mere privilege or licence to use the whole or a part of the demised premises which privilege or licence can be terminated at the sweet will and pleasure of the tenant at any time would not amount to 'parting with possession.' The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession.
19. In view of the decisions referred to above the position appears to be well settled that a tenant can be said to have parted with possession of the premises or part of the premises only when the tenant has who (sic)y parted with legal possession of the premises and if the tenant retains the possession of the premises but allows some other person to use the premises, he cannot be said to have parted with the possession of the premises or a part of the premises. The aforesaid decisions also show that a distinction has to be drawn between sharing of possession of the premises and parting of possession of the premises. The decision of the learned single Judge of this Court in Bhagwat Prasad v. Dwarka Prasad and Anr. (1) in so far as it lays down that the tenant by sharing the possession with another person can be said to have parted with the possession is thus contrary to the law laid down in the decisions referred to above. In my view thi decision of this Court in Bhagwat Prasad v. Dwarka Prasad and Anr. (1) in so far as it construes expression 'parted with possession' in Section 13 (1) (e) of the Act needs reconsideration. Since the construction of the expression 'parted with possession' contained in Section 13 (1) (e) of the Act frequently arises for consideration before this Court and the subordinate courts, I consider it necessary that the aforesaid expression should be construed authoritatively by a Division Bench of this Court. I would, therefore, refer the following questions for consideration by a Division Bench of this Court:
(i) 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 (l) (e) of the Act ?
(ii) 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 ?
(iii) Whether the decision in Bhagwat Prasad v. Dwarka Prasad and Anr. (1), in so far as it holds that a tenant, by sharing the premises with a third person, can be said to have parted with the possession of the pren(sic)ises, lays down the court law ?
20. The matter may be placed before the Hon'ble Chief Justice for obtaining suitable directions.