Gouribai Ramnarayan and others vs Ranidan Askaran Golchha

A.P. Sen, J.

This appeal by the defendant is directed against a judgment of the IInd Additional District Judge, Raipur dated 19th July 1973, affirming the judgment and decree of the 1st Civil Judge, Class II, Dhamtari dated 31st January, 1972, decreeing the plaintiff''s claim for eviction u/s 12 (1)(b) and (f) of the M.P. Accommodation Control Act, 1961.

The facts of the case, in brief, are as follows:

The plaintiff is the Karta of a joint Hindu family engaged in wholesale cloth business under the name ''M/s Bhomraj Askaran'', Dhamtari. The joint family owns a double-storied building at Motor Stand, Dhamtari, just in front of its business premises. The plaintiff''s father Askaran who was the then karta had in 1948 inducted the defendant into the demised premises, i. e., the double-storied building, which was let for non residential purposes where he opened a shop, but since many years before the suit it had been closed down. In the year 1960-1961, the family effected a partial partition by making a division of the business and it was converted into a partnership business. This was evidently done for income tax purposes.

The plaintiff on 20-7-1970, brought the suit for ejectment of the defendant under Clauses (b) and (f) of Sub-section (1) of section 12 of the Act, alleging that he was in bona fide need of the demised premises for continuing his wholesale business as a cloth dealer which had sufficiently grown during the recent years, and as a result of this there was a felt need for additional accommodation for storage of cloth purchased from mills and for its display to the customers and, therefore, it became necessary to hire a shop of one Bhawerlal which is far away from his business premises while the suit accommodation being just opposite to his shop was most suitable to the demand of his expanded business, as looking to its situation, it would be more convenient to manage and control both the shops from one place. It was further alleged that the defendant was not in need of the demised premises and had unlawfully sub-let portions thereof to one Fattelal Maheshwari and Bisahuram, tailor.

The defendant contested the plaintiff''s claim and denied all the allegations made. He pleaded that the plaintiff alone could not determine the lease, nor bring the suit. He denied that he was the tenant of the joint family styled M /s Bhomraj Askaran, while alleging that he was a tenant of the joint owners of the house, the owners being Smt. Dhapubai widow of Askaran and her two sons, Ranidan, and Phoolchand with whom he had been dealing for many years after the death of Askaran who was the owner of the suit premises. He further pleaded that the plaintiff and the other two heirs of Askaran did not form a joint Hindu family bafcwere members of a divided Hindu family and asserted that the plaintiff be put to strict proof of their jointness.

It was alleged that the house was originally let for residential purposes and, therefore, could not be had for a non-residential purpose u/s 12 (1) (f) of the Act. It was further alleged that the present shop of the plaintiff with the attached godowns and interior portions are more than sufficient even if his business has expanded, as alleged, and, therefore, the plaintiff does not require any further accommodation. The plaintiff''s alleged need was, therefore, stated to be just a pretence to secure his eviction. It was denied that any portion of the demised promises had been sub-let to Fattelal Maheshwari or Bisahuram, tailor.

The Courts below have, however, found that the plaintiff has established his case, and, accordingly, decreed his claim.

During the pendency of the appeal, the defendant, Ramnarayan died on 14-1-1974, and his L. Rs. have been substituted. In the absence of a provision in the Act, the right that the deceased defendant had as a statutory tenant to remain in possession, i.e., by virtue of the protection given to him u/s 12 (1) of the Act, was personal to him and such right does not devolve on his heirs and L. Rs. as held by their Lordships of the Supreme Court in Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, and Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, In view of this, the finding of the learned Additional District Judge that the defendant was liable to be evicted under Clauses (b) and (f), of Sub-section (1) of section 12 of the Act on the ground of his having unlawfully sub-let portions of the demised premises, and on the ground that the plaintiff had established his bona fide requirement cannot, therefore, be challenged by the L. Rs.

Learned counsel for the appellants assailed the decree mainly on two grounds, namely, (i) the plaintiff''s notice dated 16-1-1969, Ex. P-1, did not validly terminate the tenancy as he could not vis-a-vis his mother Smt. Dhapubai be the Karta and could not, therefore, represent her in giving the notice, and (ii) the plaintiff alone had no right to sue. I am afraid, none of the contentions can be accepted.

It is urged that in case of joint lessors, whether joint tenants or tenants-in-common, the notice to quit must be given by all as the contract of tenancy must be terminated by all the joint owners, acting together, and as Smt. Dhapubai, mother of the plaintiff, did not join in giving the notice to quit, the notice was not valid and effectual to terminate the tenancy. Reliance is placed on the decisions in Abdul Hamid v. Bhuwaneshwar Prasad 1952 N L J 398 : A I R 1953 Nag. 18. and Prabhakar v. Smt. Juggobai 1959 M P L J 75. The law is so well settled that no useful purpose would be served in referring to the decisions. The following passage in Mulla''s Transfer of Property Act, 6th Edn., p. 677 correctly states:

In the case of joint lessors the rule of English law is that notice by one co-lessor is sufficient to determine the tenancy as to all, and if the lessors are tenants in common, notice by one is valid as to his share; and notice to quit by one tenant in common is valid as to the whole if he is empowered by others as agent or partner. The English rule was followed in the Bombay case of Ebrahim Pir Mahomed v. Cursetji (1887) 11 Bom. 644. where the parties were not Hindus. But whereas the English rule as to joint lessors is that the lessee holds the whole so long as he and all the lessors shall please, the Hindu rule is that the relation created by contract with several joint landlonds continues until there exists a new and complete volition to change it. Accordingly one of several joint owners whether joint tenants or tenants-in-common cannot determine the tenancy, and notice to quit must be given by all.

In the case of a joint Hindu family, the karta represents the family. It is well settled that where the demised premises belongs to a joint family, a notice by the karta is sufficient to terminate the tenancy and a suit brought by him effectually represents the joint Hindu family and is not bad for non-joinder of necessary parties. In Krishna Sewak v. Narayan Singh 1963 M P L J 156 (L.P.A. No. 18 of 1962, decided on 25-4-1963, Dixit, C. J. and Pandey, J.) inlaying down this principle stated:--

If, then, the house belongs to the joint family and the plaintiff was and is the karta of the joint family, the notice of ejectment served by the plaintiff on the defendant on 10th March 1958 was a valid notice and the plaintiff was entitled to file the suit for ejectment in his capacity as the karta of the family. It cannot be disputed that the karta on a joint family is entitled to file a suit for ejectment without joining other coparceners in the suit as plaintiffs and that it is not necessary for the coparceners to join in the notice of ejectment.

In Smt. Nonibai & Anr. v. Seth Ram Kumar and Ors. 1970 M P L J 39 (Second Appeal No. 6 of 1967, decided on 5-1-1970). I had taken the view that notice to quit given by the karta was sufficient to terminate the tenancy and further that the suit was not bad for non-joinder of the widow of a pre-deceased brother who having acquired his interest under the Hindu Women''s Right to Property Act, 1937 became a co-lessor as she was effectively represented by the karta of the family.

It is, however, strenuously urged that that may be so under the Hindu Women''s Right to Property Act, 1937 but the plaintiff''s father having died in 1955 the matter falls to be governed by the provisions of the Hindu Succession Act, 1956, It is urged that after the enactment of the Hindu Succession Act, 1956, the concept of joint Hindu family no longer exists, nor the institution of the karta. It is urged in the alternative that the division of the joint family business in the year 1960-61 at any rate brought about a disruption of the joint status and unless there was an agreement between the divided members to remain joint or there was a re-union between them, the plaintiff could not act as the karta. It was, therefore, said that the plaintiff, Ranidan, could not be the karta vis-a-vis his mother Smt. Dhapubai as she was not a coparcener or a joint tenant but a tenant-in-common of her interest and she was absolute owner thereof u/s 14 of the Hindu Succession Act. In my view, these contentions cannot prevail.

In support of the theory that among Hindus there is now no joint Hindu family in existence, my attention is drawn to the following observations in Gupte''s Hindu Law, 2nd Edn., Pp. 540-1:

One effect of making a widow''s estate absolute is that in respect of such property the widow becomes a fresh stock of descent and to that extent brings the joint family status to an end. For example, when the sole coparcener dies leaving a widow and unmarried daughters, the widow and the unmarried daughters would under the old law have constituted a joint Hindu family the widow being a potential mother to bring into existence a coparcener by adoption; now that by virtue of section 14 the widow and the daughters become absolute owners of the property inherited by them, the family status comes to an end.

I find it difficult to subscribe to this theory which, it appears, is not the view of the learned author but is the opinion expressed by the Orissa High Court in Rukmini Bai Rathor Vs. Commissioner of Wealth Tax, , in the particular facts and circumstances of that case. The learned Judges had to consider the meaning of the expression "Hindu undivided family" in section 3 of the Wealth-tax Act, 1957 and in dealing with the question they explained the effect of section 14 on the concept of a "Hindu undivided family". The case had its own peculiar features, and the observations made by the learned Judges cannot be read out of context. There, they had to consider an attenuated joint family of a widow with unmarried daughters having no coparcener living. In that context, they held that the widow and the daughters became the absolute owners of the property inherited by them, and the family status came to an end. The decision in Smt. Rukmini Bai v. Commissioner of Tax, Bihar and Orissa(supra) is, therefore, distinguishable on facts.

The Hindu Succession Act, 1956 is an Act to amend and codify the law relating to intestate succession among Hindus. It does not merely erystalise or declare the existing law upon the subject but deliberately departs from that law in respect of various matters. It introduces far-reaching changes in the law of succession, viz, it establishes equality between males and females with regard to property rights and rights of the female were declared absolute, completely abolishing all notions of a limited estate. section 4 (1) of the Act gives overriding effect to the various provisions of the Act, and it declares that all existing laws whether in the form of enactments or otherwise, viz., based on any text, rule or interpretation of Hindu law, or any custom or usage having the force of law, shall cease to have effect with respect to the matters dealt with in the Act.

The Act, however, does not affect the law relating to joint family or partition except to the extent to which sections 6 and 7 have such effect, and the previous law continues to operate in such matters. Further, the Act is not retrospective in operation. This pre-supposes the continued existence of a joint Hindu family, as section 6 of the Act speaks of the ''devolution of interest in a coparcenary, by the rule of survivorship'' in the case of the death of a member of a joint family governed by the Mitakshara School of Hindu law. The essence of a coparcenary under the Mitakshara law is the unity of ownership, and community of interest. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate the extent of his share; his interest is a fluctuating interest, liable to be enlarged by deaths in the family and liable to be diminished by births, capable of being ascertained only on a partition. Explanation I to section 6 of the Act envisages a notional partition, by a legal fiction, for the purpose of devolution of interest of a Hindu Mitakshara coparcener. The Act does not, therefore, abolish the institution of the joint Hindu family.

In Mukundilal and others v. State Bank of India 1972 M P L J 1048., I had occasion to observe:

There is nothing in the language of the section to suggest that it deals a death knell to the Hindu coparcenary the moment one of the coparceners dies leaving some female relative or a male relative who claims through such female relative, specified in class I to the Schedule, who are not coparceners. We are inclined to think that devolution of interest by intestate succession by such person does not bring about a disruption of the coparcenary. These persons no doubt take a defined share in the undivided interest of the deceased coparcener in the joint family property, and the determination of their shares has to be on the footing as if there was a notional disruption of the joint status of the family but such notional disruption is not actual disruption of the joint status. The Explanation was necessary in view of the provision whereunder inheritance in coparcenary property by succession was introduced even in respect of the outsiders to the joint family which was unknown to Hindu law. The object is achieved by the use of a legal fiction, i. e.t by the words ''shall be deemed to be the share'' in Explanation I.

I fail to appreciate how Mst. Dhapubai could be regarded as a tenant-in-common. Her husband Askaran died in 1955, i. e., before the coming into force of the Hindu Succession Act. As already stated, the Hindu Succession Act, 1956 is not retrospective in operation. Section 19 of the Act is, therefore, not applicable.

Under section 3 (2) of the Hindu women''s Right to Property Act, 1937, Mst. Dhapubai acquired the same interest as her husband had in the coparcenary property including the right to claim partition as a male owner. The expression "shall have the same interest as her husband" did not equate her to a coparcener. She was still a member of the joint Hindu family. What she got was the fluctuating interest of her husband, and it was a limited estate known as widow''s estate. The joint family still continued as before except that the widow acquired a special limited statutory right. Because the joint family continued, its well recognised incidents also continued, namely, the right of the karta to represent the family and to be in management of its affairs. When Hindu Succession Act, 1956 came into force, her limited estate became enlarged into an absolute estate u/s 14 of the Act. She still continues to be a member of the joint Hindu family.

An exhaustive, and if I may say so, a lucid exposition of the nature of a widow''s right u/s 7 of the Hindu Women''s Right to Property Act, 1937, is to be found in the decision of Rajamannar C.J., and Venkaterama Ayyer J., in Movva Subba Rao and another v. Movva Krishna Prasadam A I R 1954 Mad. 227. Their Lordships, after considering the law on the subject, summarised the principles as follows:

To sum up, section 3 (2) of the Act does not operate as severance of interest of the deceased coparcener; the right which a widow gets under that section is not as heir of her deceased husband; it is a statutory right based on the recognition of the principle that a widow is the serviving half of her deceased husband; that the incidents of that right are those specified in the Act; that such right is one personal to the widow and comes to an end on her death, that the estate which the widow takes u/s 3 (2) does not, on her death, devolve on her husband''s heils; and that the right of the coparceners to take by survivorship is suspended as against the widow of a deceased coparcener and such right reasserts itself on her death.

I find myself in full accord with the legal position so stated.

The Act, therefore, conferred a new right on the widow of a deceased coparcener in modification of the pre-existing law. u/s 3 (2) of the Act, Mst. Dhapubai as the widow of Askaran, therefore, acquired his undefined and fluctuating interest which he himself had till the moment of his death. There is nothing in the Act to show that the widow takes in the joint family property a defined and divided share as if the husband had separated in the joint family at the time of his death. In Satrughan Isser Vs. Smt. Subujpari and Others, their Lordships of the Supreme Court stated that the interest of the widow arises not by inheritance, nor by survivorship, but by statutory substitution. Her interest in the property is the limited interest known as a Hindu woman''s estate, but the Act gives her the same power to claim partition as a male owner has. She is thereby introduced into the coparcenary, and between the surviving coparceners of the husband and the widow so introduced, there arises community of interest and unity of possession. But, the widow does not on that account become a coparcener. She is, however, given the right to claim partition. To effect such partition it is not necessary that there should have been actual division of interest by metes and bounds. Mere severance of status is enough. The moment there is a partition, her share gets defined. In Sukhram and Another Vs. Gauri Shankar and Another, their Lordships have held that by virtue of section 14 (1) of the Hindu Succession Act, 1956, the property possessed by the widow becomes her absolute property, and it is not subject to any restrictions.

In view of the accepted legal position, the only changes brought about by section 14 (1) of the Hindu Succession Act were that (i) the limited estate of the vvidow in the joint family property, became her absolute estate, and she became a fresh stock of descent and consequently, (ii) the right of survivorship of the coparceners which u/s 3 (2) of Hindu Women''s Right to Property Act, 1937, remained suspended during her life-time, was destroyed. She was, therefore, brought somewhat at par with coparceners, but she still did not get the status of a coparcener, as that status can only be acquired by birth or adoption. She was still a member of a joint Hindu family and, therefore, subject to the ordinary incidents of a joint family, viz., the right of the karta to represent the family and to be in management of its affairs. In that view, the notice, Ex. P-l, served by her son the plaintiff Ranidan was valid and effectual to terminate the tenancy, and the suit brought by him in his capacity as the karta effectually represents the joint Hindu family and is not bad for non-joinder of necessary parties.

Learned counsel for the appellants then submitted that the division of business in the year 1960-61, brought about a disruption of the joint status unless there was an agreement to remain joint or a re-union. It was urged that there is no plea or proof that there was any such agreement or re-union. The submission does not take note of the fact that there is nothing on record except the bare assertion of Ramnarayan (D.W. 1) that there was a partition in the plaintiff''s family, and he could have no personal knowledge about this. On the contrary, the testimony of Ranidan (P.W. 1) and his brother Phoolchand (P.W. 4) and nephew Iyedan (P.W. 5) clearly shows that their family is still joint in mess and estate.

The submission that division of the business brought about a disruption of status, is against accepted principles. A partial partition between coparceners may be partial either in respect of the property or in respect of the persons making it. The law is stated in Mulla''s Hindu Law, 14th Ed. p. 420 thus:

It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family.

That is precisely the case here. There is no evidence to show that the members of the family intended to sever or put an end to the joint family status. On the other hand, the evidence is that they remained undivided.

It has been laid down by the Judicial Committee of the Privy Council in Appovier v. Rama Subba Aiyan (1866) Moo. I A 75 at P. 90. that the true test of partition of property according to the Hindu law is the intention of the members of the family to become separate owners and that intention being the real test, it follows that an agreement between the members of a joint family to hold and enjoy the property in defined shares as separate owners operates as a partition. In the instant case, there is no such agreement to put an end to the joint family status, or to hold the property as tenants-in-common. The division of the business followed by the formation of the partnership did not result in a disruption of the joint status.

In Ramalinga Annavi and another v. Narayan Annavi and others A I R 1922 P C 201., it was decided among the members of a joint family that the money-lending business be wound up, the rest of the property consisting of immovables and movables being kept joint. The subsequent conduct of the parties was also in keeping with the decision. Their Lordships held that these facts proved that so far as the outstandings were concerned there was a separation among the members of the joint family, though the family remained joint so far as the movables and immovables were concerned. In Jagmohan and others v. Ranchhoddas and others 1945 N L J 630 : A I R 1946 Nag. 84 : I L R 1945 Nag. 892., Vivian Bose and J. Sen JJ. stated that it was open to the members of a joint family to make a division and a severance of interest in respect of a part of the joint estate while retaining their status as a joint family and holding the rest as the properties of a joint undivided family. It must, accordingly, be held that the partial partition in the family by making a division of the business and converting it into a partnership did not result in a disruption of the joint status.

That brings me back to the question as to whether the learned Additional District Judge was right in decreeing the plaintiff''s claim for eviction u/s 12 (1) (b) and (f) of the Act. As already stated, the Act does not give any protection to the L. Rs. of the deceased statutory tenant and they cannot claim the status of a "tenant" as defined in section 2 (i) of the Act. The defences of want of bona fide requirement by the landlord, or the absence of any unlawful sub-letting on his part, was personal to the statutory tenant, and on his death the same was not open to his L. Rs. Nevertheless, learned counsel for the appellants advanced two contentions, namely, (i) even assuming the property was kept joint, it could not begot vacated by the plaintiff for the partnership business, and (ii) there was no parting with possession or unlawful sub-letting on the part of the defendant. There is, in my opinion, no substance in any of these contentions.

Both the Courts below have concurrently found, as a fact, that the plaintiff has established that he bona fide requires the suit accommodation for continuing his business within the terms of section 12 (i) (f) of the M.P. Accommodation Control Act, 1961, relying on the testimony of Ranidan (P.W.I), Phoolchand (P.W. 4) and Iyedan (P.W. 5). They have further found as a fact, relying on the testimony of these witnesses, that the defendant has unlawfully sublet the portions of the accommodation in his occupation and was earning profit thereby and was therefore, liable to be evicted u/s 12 (I) (b) of the Act. These are findings of fact based on appreciation of evidence. Findings of this nature which are findings on pure questions of fact cannot be interfered with in second appeal. See, Sarvate T. B. v. Nemichand 1966 M P L J 26 , (S C), and Mattulal Vs. Radhe Lal,

There can be no doubt that the finding of the Courts below that the plaintiff was in bona fide need of the suit accommodation u/s 12(1) (a) of he Act for continuing his cloth business, is based on evidence. In para 5 (a) of the Plaint, the plaintiff who is suing as the karta avers that he, meaning the joint family, is a Wholesale cloth dealer and its business has increased in recent years and as such it finds it difficult to do the business in the old premises and, therefore, in. para 5(b), he avers that he urgently needs the demised premises to cope with its expanding business. Ranidan (P.W. 1) states that after the death of his father in 1955,he became the karta of the joint family and the demised premises is joint family property. He further states that the business of the joint family has considerably expanded during the past 5 or 6 years and there is need for additional accommodation, and since the demised premises is just in front of its shop, the same is required for purposes of more convenient and proper management of the said business.

Ranidan (P.W. 1) has proved that there is progressive increase in sales of cloth from his account-books. The khata for the Samvat 2023-24, Ex.P-3 shows a sale of Rs. 13,78,110; that for Samvat 2024-25, Ex P-4 of Rs. 19,40,317,70; and that for Samvat 2025-26, Ex. P-5, of Rs.22,83,670.35. The khata entries for Samvat 2023 to 2026, Exs. p 14 to p. 17, show corresponding increase in purchase of cloth from the mills. The assessment order for the assessment year 1961-62, the corresponding accounting year of which was the year ended diwali 1960, Ex. P-24, shows that after a partial partition in the joint family, the cloth business was taken over by the newly constituted firm. The assessment order for the assessment year 1969-70 Ex P-7 shows an increase in the turnover. The assessment order for the assesment year 1965-66, Ex. P-3 shows the Constitution of the firm which consists of three partners, viz., (i)smt Dhapubai (ii) Ranidan, (iii) Phoolchand, each having 3rd share. Ranidan (P.W. 1) was questioned during his cross-examination and he has stated that the business was converted into a partnership after the partial partition in the year 1960-61, and the firm is a registered firm. In view of this, the finding of the Courts below as to the bona fide need u/s 12 (1) (f) of the Act is unassailable.

The contention based on the decision of the Supreme Court in D.N. Sanghavi and Sons Vs. Ambalal Tribhuwan Das, cannot be accepted. It proceeds on a mis-recording of the deposition of Ranidan (P.W. 1) showing as if that the partnership was of himself, his brother Phoolchand and one Baburam. This is obviously a mistake. The orders of assessment referred to clearly show that the partnership is between Ranidan, Phoolchand and their mother Smt. Dhapubai and not Baburam. This is also borne out by the defendant''s own document, Ex. D-1, which was a notice dated 13-4-1959 sent by Ranidan Phoolchand and Smt. Dhapubai as proprietors of shop "M/s Bhomraj Askaran" prior to the partial partition. The partnership is, therefore, between the members of the joint family and not between two of them and a stranger.

The decision of their Lordships in D.N. Sanghavi and Sons v. Ambalal Tribhuwan Das (supra), is clearly distinguishable. There, there was a partition among the brothers and under the terms of the partnership the plaintiff was given no right of management over the business and became a steeping partner thereof. Their Lordships, accordingly, held interpreting section 4 (h) of the M.P. Accommodation Control Act that the requirement by the landlord of a non-residential accommodation, for starting a business in partnership, is not a need, directly or substantially, of his own and, therefore, cannot be a ground for ejectment. I may incidentally observe that the words "of his own" do not occur in section 12 (1) (f) of the Act. Here, the business of the partnership was in reality a business of the joint family, and the partnership was formed for income tax purposes. Their Lordships in D. N Sanghavi and Sons v. Ambalal Tribhuwan Das (supra), have distinguished their earlier decision in Dulichand Lakshminarayan Vs. The Commissioner of Income Tax, Nagpur, There, it was held that a firm is a distinct entity from its partners for income tax purposes. That decision turned on the peculiar features of the Income Tax Act, 1922 which are radically different from the provision contained in section 12 (1) (f) of the M.P. Accommodation Control Act, 1961. That case is, therefore, not helpful in deciding the point involved.

The question whether there is unlawful sub letting is, in most cases, a matter of inference to be drawn from the facts of each case. The initial onus of proving unlawful sub-letting in the first instance, lies upon the plaintiff Sub-tenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed on the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but to establish a positive aspect about the capacity in which the alleged subtenant is occupying the premises, and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts, which a third person has been inducted into the whole or any part of the premises, are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of sub-letting.

In the instant case, the defendant merely denied that he had sublet any portion of the shop in the demised premises to Fattelal Maheshwari or Bisahuram, or parted with the effective control thereof. He, asserted that Fattelal Maheshwari was his licensee and was occupying only a room in the rear portion of the second storey, and that Bisahuram had been allowed by him to use the chabutara for carrying on his tailoring business, as he was indebted to him. It was, therefore, denied that these persons were his subtenants. The facts however, speak for themselves. Ranidan (P.W. 1) has proved that Fattelal Maheshwari is occupying a portion of the first floor, while Bisahuram occupies the verandah. As against this, Ramnarayan (D.W. 1) would have us believe that Fattelal Maheshwari is his relation; when questioned, he stated:

This is belied by Fattelal (D.W. 2) who asserts:

This witness admits that he with his family was earlier staying in Shah Rice Mills, but he then shifted to the demised premises. Bisahuram (D.W. 3) admits that he is using a part of the demised premises for running his tailoring business. The evidence on record reveals that portions of the suit accommodation have been sub-let by the defendant. The defendant actually does not stand in need of the suit accommodation as he has closed the shop since many years before the suit. The finding of the Courts below as to unlawful sub-letting u/s 12(1) (b) of the Act is, therefore, also unassailable.

The result, therefore, is that the appeal fails and is dismissed with costs. Counsel''s fee, as per schedule, if certified.