NIHAL CHAND RAMESHWAR DASS Vs. VINOD RASTOGI

JUDGEMENT

(1.) The tenants in a suit for eviction are the appellants before us. Though the landlord-respondent sought eviction of the tenants on various grounds the only ground which survives for our consideration in this appeal is of illegal subletting. According to the landlord the tenants had without his consent sublet the verandah of the tenanted premises to certain individuals, namely, Zinda Hasan, Abdul Rashid and Dhunna, who were doing business there. The defence of the tenants, so far as this ground was concerned, was one of denial.

(2.) The trial court answered all the issues regarding the grounds of eviction against the landlord and dismissed the suit. In appeal the first appellate court, however, on an exhaustive analysis of the evidence adduced during trial, reached a conclusion to the contrary so far as the issue of subletting was concerned and decreed the suit. The High court dismissed the second appeal preferred by the tenant affirming the factual findings recorded by the first appellate court. Hence this appeal by special leave.

(3.) The learned counsel appearing for the appellants first submitted that both the appellate courts failed to consider that in order to constitute subletting there must be parting with legal possession, that is, possession with the right to include and also the right to exclude others and that the evidence on record did not justify such a conclusion. In support of this contention he relied upon the judgments of this court in Shalimar Tar Products Ltd. v. H. C. Sharma and Gopal Saran v. Satyanarayana.