LAL SHANKER Vs. CHATURBHUJ

JUDGEMENT

(1.) By this appeal, the defendants seek to assail the concurrent judgments of the two learned Courts below, decreeing the plaintiffs' suit for eviction from the suit shop, on the ground of subletting, so also on the ground of the suit premises having become unsafe for human habitation.

(2.) The first contention of the learned counsel is that there is no pleading about subletting and, thus, even without there being any pleading, the learned Courts below have decreed the suit on the basis of subletting. Another contention is that the reliance on Exs. 4 and 5 is wholly contrary to law as these are the statements of the two appellants given on some criminal case which have not been proved, apart from the fact that even from those statements, no subletting is proved. The next submission is that the appellant No. 1 Lal Shanker as DW-1 has deposed that the defendant No. 2 Sumer Mal is not in possession of the shop and this evidence has not been controverted. According to the learned counsel, the possession of alleged sub-tenant is one of the basic requirements of subletting, inasmuch as, according to the judgment of the Hon'ble the Supreme Court reported in (1987) 4 SCC 161 (165) : (AIR 1987 SC 2055) for subletting, the person alleged to be sub-tenant must be shown to be in exclusive possession of the premises over which the main tenant having no control and such transfer of possession should be for consideration. The learned counsel then, submitted that there is no evidence or finding on behalf of the appellant No. 2 having been put into possession for some cash consideration. Thus, the finding on the question of subletting is wholly unsustainable.

(3.) Assailing the finding on the question of premises having become unsafe for human habitation, again, the learned counsel contended that there are no pleadings in the plaint in this regard as required by Section 13(1)(k) of the Rajasthan Premises (Control) of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act"). According to the learned counsel, if the provisions of Section 13(1)(b) are to be invoked, there has to be pleading, evidence and finding about the tenant having wilfully caused or permitted to be caused substantial damage to the premises and if grounds mentioned in Section 13(1)(k) were to be invoked, then, pleading, evidence and finding has to be there that the landlord requires the premises in order to carry out any building work and such requirement should have arisen because of the premises having become unsafe or unfit for human habitation. In the present case, according to the learned counsel, there is no such pleading, evidence or finding, inasmuch as, all that has been found is that the 'verandah' has fallen down and as 'Ballies' have been put in the wall of the shop, if they fall down, it can bring about a hazard to human life and thus, the shop has become unfit for human habitation. The learned counsel also contended that even this finding is based on misreading of the statement of DW-1.