ASHAR AHMED Vs. SITA DEVI

JUDGEMENT

(1.) Heard learned counsel for the parties. The plaintiff filed a suit for eviction of the appellant/tenant on the ground of personal bonafide necessity, default in payment of rent, subletting and creating nuisance by the tenant. The trial court decreed the suit of the plaintiff on the ground of subletting after holding that the defendant committed first default.

(2.) The trial court also held that the appellant has created nuisance in the premises. The finding of fact recorded by the trial court in its judgment and decree dated 13.11.2003 was upheld by the first appellate court vide judgment and decree dated 29.5.2004.

(3.) Learned counsel for the appellant vehemently submitted that the appellant deposited the rent of the premises in dispute from 1.3.1987 to 31.5.1988 in the Court, still the trial court has decided the issue no.2 against the appellant. It is also submitted that the appellant proved from evidence that Bheru Singh was servant in the shop of appellant and thereby the appellant has not sublet the suit premises. Learned counsel for the appellant relied on the judgments delivered in the cases of (1) Shri Dipak Banerjee vs. Smt. Lilabati Chakraborty reported in All India Rent Control Journal XI 1987(2) 644 and (2) Jodhraj vs. Suleman reported in RLW 1970 P.170 wherein, according to learned counsel for the appellant, it has been laid down that for proving the fact of subletting, the landlord is required to prove the actual parting of the premises. In this case, in view of the statement of the appellant's witness Bheru Singh, it is clear that the appellant/tenant never parted with possession of the premises and handed over exclusively possession of the premises to the alleged sub-tenant.