JUDGMENT :

1. :- This reference raises the question regarding construction of the expression "parted with possession" contained in Section 13(1)(e) of the Rajasthan Premises (Control) of Rent and Eviction) Act, (No. XVII of 1950) ('the Act' here in).

2. A learned single Judge of this Court has referred the following questions for consideration by a Division Bench of this Court:

(1) 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 part of the premises" so as to entail the liability of eviction Under Section 13(1)(e) of the Act?

(2) 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?

(3) Whether the decision in Bhagwat Prasad v. Dwarka Prasad and Anr. 1969 WLN 351 in so far it holds that a tenant, by sharing the premises with a third person, can be said to have parted with the possession of the premises, lays down the correct law?
We may notice the relevant facts: The plaintiff landlord (respondent) instituted a suit for rent and ejectment against the defendant-tenants who are said to be the legal representatives of the original tenant Allanoor. It was stated in para 3 of the plaint that Amir Ahmed and family are in exclusive possession of the apartments in question. The plaintiff-respondent sought eviction of the defendant-appellant Amir Ahmed and other defendants on the grounds viz., (i) default in payment of rent; (ii) causing damage to the premises; and (iii) sub-letting of half of the Barsali by defendant Amir Ahmed to one Ramjan without the consent of the plaintiff-landlord. The apartments in question are half portion of the Barsali, one kitchen, one latrine, two rooms, chowk and Chabutri on the ground floor of the house described in para 1 of the plaint. The Munsif, Jodhpur City, Jodhpur by his judgment and decree dated May 15, 1980, decreed the suit of the plaintiff-respondent and passed a decree for eviction on the ground that the defendant-appellant Amir Ahmed has sub-let a part of the premises, viz., half portion of the Barsali to Ramjan without the consent of the plaintiff-landlord. An appeal was filed and the learned District Judge, by his judgment and decree dated November 25, 1980, affirmed the decree for eviction. A second appeal was filed.

3. Issue No. 2, which was framed by the learned Munsif Jodhpur City, when translated into English, reads as under:Whether the defendant has sub-let, assigned or parted with possession of the Barsali (premises in dispute) without the consent of the plaintiff?The learned Munsif decided this issue in favour of the plaintiff and against the defendants. The finding is as follows:

;g ekuk tkuk mfpr gS fd izfroknh us jetku dks cjlkyh es j[kk vkSj bl izdkj tk;nkn eqruktk dk lcysV] ,lkbu] ;k ikVZfon~ nkok n;jh ds le; fd;k gkykfd vkt og tkjh ugh gS blfy, ;g okn fcUnq oknh ds gd es rFkk izfroknh ds f[kykQ r;k fd;k tkrk gSA
On appeal, the learned District Judge affirmed the finding observing as under:

nksuks i{kks dh lk{; dk foospu djus ds i'pkr~ fu"d"kZ ;gh fudyrk gS fd izfroknhx.k us fooknxzLr ifjlj dk ,d Hkkx ckjlkyh oknh dh fcuk vuqefr ds jetku iq= bLekby dks ;k rks mi fdjk;s ij fn;k FkkA vFkok mldk vkf/kiR; fdlh :i es mldks lkSaik FkkA
Before the learned single Judge, the finding that the defendant-appellant has not parted with exclusive possession over the part of the Barsali which has been leased out to him, was assailed and it was submitted that the appellant had only permitted Ramjan to keep him goods in a part of the Barsali and that on the basis of the record, it could not be held that the defendant had either sublet half of the Barsali to Ramjan or had parted with possession of a part of the Barsali to Ramjan. On behalf of the plaintiff-respondent, reliance was placed on the decision of a learned single Judge of this Court in Bhagwat Prasad's case 1969 WLN 351. The learned single Judge on the basis of the decisions referred to in his referring order dated November 5, 1982, was of the opinion that a distinction has to be down between sharing of the possession of the premises and parting of possession of the premises. According to the learned single Judge, the view taken in Bhagwat Prasad's case 1969 WLN 351 that the tenant by sharing the possession with another person can be said to have parted with possession is contrary to the decisions referred to by him in his referring order and so, the interpretation put in Bhagwat Prasad's case 1969 WLN 351 on the expression "parting with possession" as used in Section 13(1)(e) of the Act, need reconsideration and as such the aforesaid question have been referred.

4. The material portion of Section 13 of the Act, for the present purpose, is as under:

Section 13. Eviction of tenants-(1) Not with standing anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor, to the full extent allowable by this Act, unless it is satisfied:
... ... ...

(e) that the tenant has assigned, sub-let for otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or
... ... ...

(2) The Court may presume that premises let for use as a residence were or are sub-let by the tenant in whole or in part to another person, if it is satisfied that such person not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises, or any part thereof for a period exceeding one month otherwise than in commensality with tenant.
A covenant not to assign, sub-let or part with the possession of the demised premises is generally contained in a lease-deed and the expression "part with the possession of the demised premises" has come up for consideration before the English Courts in a number of decisions.

5. In Pebble v. Croathwsite (1897)13 Times Law Reporter 37 , it was 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 covenant against parting with the possession by allowing other people to use the premises. This decision was relied upon in Jackson v. Simons 1923(1) CH.D. 373 where the lessee of a ground floor shop without the consent of the landlord, 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 the shop hours and was removed the following morning when the shop re-opened. It was held that the aforesaid arrangement did not constitute a breach of the covenant not to assign or under let or part with the possession of the demised premises, or any part thereof. It was also 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 that lessee who retains such possession does not commit a breach of covenant against parting with the possession by allowing other people to use the premises. A distinction was drawn between a covenant against parting with the possession and covenant against sharing the possession or occupation thereof.

6. In Cheplin v. Smith 1923(1) CH.D. 373 , 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 & which took over the business, assets and liabilities of the first company. It was held that there was no breach of the lessee's covenant not to part with possession of the premises or part thereof, because no interest in the demised premises had been passed to the companies or either of them. In that case, Benkes, L.J., has observed as under:

"If the new company was ready in the circumstances to enter into an agreement for the use of the 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 effect other than the that which the parties intended. If so, there is no breach of the covenant. The learned Judge accepts the facts; but must have held that a man cannot permit another occupy 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 demises premises: or any part thereof, 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 that case, there is no parting with possession, and I see no distinction between that case and this."
Warrington L.J., has observed as follows:

"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 covenant."

"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."
Scrutton L.J. has observed as follows:

"He was constantly on the premises himself and kept the key of them. He did not 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 Stoning v. Abraham (1931) 1 Ch. 470 , the lessee had given to a company the right to use the front of the well 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 landlord that the lessee had parted with the possession of the front of the wall and thereby he had committed a breach of the covenant against parting with possession. The aforesaid contention was rejected and it was observed:

"But in my opinion a lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from legal possession of the part. If there is anything in the nature of a right to concurrent user there is no parting with possession."
In Lam Kee Ying v. Lam Shes Tong 1973 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 carrying on by the partnership and thereafter the landlord sought eviction of the lessee on the ground of breach of covenant against parting with the possession of the demised premises or any part thereof. The Judicial Committee of the Privy Council held that a covenant which forbids 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.

7. In Marks v. Warran 1979(1) All England Reporter 29 , a landlord and tenant entered a tenancy agreement which provided, inter alia, that the tenant was not to under-let or part with possession of the premises without the landlord's provision consent in writing which shall not be unreasonably with held. The tenant assigned the tenancy to the plaintiff without first obtaining the landlord's consent. The plaintiff later decided that he did not wish to accept the assignment and brought an action against the tenant claiming re-payment of the tenant he had paid to the tenant for the assignment. The question whether the tenant required the landlord's prior consent before assigning was tried as a preliminary issue, the tenant contending that the omission of any specific restriction on assignment in the agreement mean that the tenant was free to assign without the landlord's consent. It was observed that once the assignment by the tenant necessarily involved a parting with possession of the premises and since that fell within the ordinary normal meaning of the words of the covenant, it followed that the assignment constituted a breach of covenant unless the landlord's consent had been obtained or unreasonably with held not with standing that there was no express restriction on assigning the premises.

8. Lord Hailsham in his treatise Halsbury's Laws of England, Fourth Edition at page 283, under the head "Covenant against assignment or parting with possession", in para 364 has stated as follows:

"A covenant "not to assign", or "not to assign or otherwise part with", the premises is only broken by a legal assignment for the entire residue of the term.
A covenant "not to assign or part with the possession of the premises" goes further and is broken if, for example, the tenant makes an equitable assignment of the lease and places the assignee in possession, but a tenant who retains the legal possession of the whole of the premises at all material times does not commit a breach of the covenant by allowing other people to use the premises."

"A covenant not to part with the possession of the premises is not broken by the tenant parting with part of the premises and therefore, it is common to find in leases a covenant "not to assign, sub-let or part with possession of all or part of the demised premises."
In Wood Fall's "Law of Landlord and Tenant" (28th Edition Vol. I), at page 494 in para 1197, the legal position has been summed up as under:

"So long as the lessee remains in possession, he may permit another person to use the demised premises without committing a breach of a covenant 'not to assign, under-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 possession, by allowing other people to use the premises either under a licence or under a declaration of 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."

"But a lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from legal possession of that part."
The expression "part with the possession" has also come up for consideration before the courts in India.

9. Section 13(1)(e)(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 Radhey Piari v. Kalyan Singh AIR 1959 Punjab 508 , the tenant of a shop had allowed a watch repairer to keep a show case inside 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 sub-letting or parting with the possession of the demised shop or any part thereof and the possession throughout remained with the tenant.

10. In Gurdial Singh v. Brij Kishore 1970 R.C.J. 1001 , proviso (b) to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 came up for consideration. According to proviso (b) to Sub-section (1) of Section 14, a landlord can evict the tenant if the tenant has sub-let, 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. Rajinder Sachar, J., while considering the expression "parting with possession 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. It may be stated that in that case, Bhagwat Prasad's case (1) was noticed and the learned Judge, while disagreeing with it, observed that sharing does not amount to parting with the possession of the premises.

11. In Hazarilal v. Gian Ram, a Division Bench of the Delhi High Court, while construing the expression "sub-let, 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) of Section 14 of the Rent Act uses three expressions namely "sub-let" "assigned" and "otherwise parted with the possession" of the whole or any part of the premises without obtaining the consent in writing of the landlord. 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 incidents 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 the legal possession. As we understand it, parting with possession means giving possession to persons other than those to whom possession has been given by the lessee and "the parting with possession" must have been by the tenant. The mere user by other persons is not parting with possession as long as the tenant retains the legal possession himself or, in other words, there must be resting of possession by the tenant in another person by divesting himself of 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 docs not pay him any rent or other consideration it would not be possible to say that 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 as long as, during his absence, tenant has a right to return to the premises and be in possession thereof. A mere privilege of 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 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."
(Emphasis added)

12. In Malasingh v. Herkiratsingh, a contention was raised on behalf of the petitioner that the first respondent had part with possession of the building when he was transferred to Delhi and that it was the second respondent who had control of the building and so the first respondent must be presumed to have sub-let or transferred his rights under the lease to the second respondent. In support of this, reliance was placed on Dr. Ram Sarup v. Smt. Savitri Devi, wherein, it was held as under:

".... I find that the crux of the sub-letting lies in this as to who is in actual control of the premises. If the sub-tenant is in actual possession of the premises, there would be sub-letting unless an arrangement is proved whereby the sub-tenant is merely a caretaker on behalf of the tenant during the period of the absence of the tenant. That was the case that was set up. But no evidence was led to prove it. When-even a landlord proves that there has been complete parting with the possession then it is for the tenant to establish that, that parting with the tenant's possession has been under some arrangement negativing the passing of the complete control of the premises to the so called subtenant."
The learned Judge in Malasingh's case agreed with Dr. Ramsarup's case However, according to him, mere parting with possession is not sufficient proof of sub-letting of the building or of transferring of the tenant's rights under the lease. He has also referred Shiv Prashad Jain v. Brij Lal 1966 Cur. LJ 361 wherein the learned Chief Justice held that the view taken by the Rent Controller was proper and no inference could be drawn in that case beyond that the tenant had allowed his brother-in-law to live in a portion of the house as licencee on account of their close relationship.

13. A learned Judge of the Allahabad High Court in Sohanlal v. Additional District Judge, Buland Shahar, while considering the question of sub-tenancy as part of the premises so as to render him liable for eviction under Section 13(1)(e) of the Act. Transfer of physical possession as well as the right to hold possession in leasehold premises is essential for parting with possession. If the tenant has the right to disturb the possession or user by third person, he cannot be said to have parted with the possession of the premises. When a tenant is in exclusive possession of the premises at the time of the commencement of the tenancy and subsequently, the exclusive possession is converted into a joint possession of the premises by a tenant and the third person, it will not be construed as parting with the possession Under Section 13(1)(e) of the act.

14. In Bhagwat Prasad's case 1969 WLN 351, the defendant was carrying on business of tailoring in the shop and allowed vegetables and fruits to be kept in the shop. The question which arose for consideration was whether the tenant was liable to be evicted on the ground that he had sub-let the shop or had parted with possession of the same. The learned single Judge while holding that the landlord had failed to establish the sub-letting of the shop by the tenant to Ishardas, held that the landlord 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. This decision was considered by a learned single Judge of the Delhi High Court in Gurdialsingh's case 1970 R.C.J. 1001. The learned Judge of the Delhi High Court expressed his disagreement with the aforesaid conclusion arrived at in Bhagwat Prasad's case 1969 WLN 351. In the case on hand, the learned Judge who have made this reference was also of the view that he cannot subscribe to the view that the tenant who retains the possession of the premises but allows another person to share the same has parted with the possession of the premises or a premises or a part of the premises so as to justify the passing of a decree for eviction against the tenant under Section 13(1)(e) of the Act. We agree with the reasons given in Gurdialsingh's case 1970 R.C.J. 1001 by the learned Judge of the Delhi High Court that the conclusion arrived at by the learned Judge in Bhagwat Prasad's case 1969 WLN 351 is not in conformity with the settled law on the subject. The expression 'parting with the possession' was not examined in Bhagwat Prasad's case 1969 WLN 351. As a matter of fact, it seems that the learned Judge proceeded on the assumption that tenant when he allowed vegetable seller, he committed a breach of the Act by merely permitting another person to use a part of the premises. We hare not been able to persuade ourselves to agree with the view taken in Bhagwat Prasad's case 1969 WLN 351 and express our dissent with the aforesaid conclusion. To this extent, it does not lay down a correct law. It may also be mentioned that Under Section 13(2) there is a presumption of fact. It is rebuttable on a contrary proof by the opposite party. It is a discretionary one and is in respect of sub-letting only. This presumption is confined to the premises which are let for residential purposes.

15. In Abu v. Chakkyil, V.R. Krishna Iyer, J., as he then was observed as under:

"Moreover, the burden under the statute is on the landlord to make out the ground for eviction and not on the tenant to forestall or rebut such grounds, I completely agree that unless the landlord makes out such a ground be cannot be given an order putting him in possession. But the manner of proof of a fact depends also upon the Evidence Act or at any rate, the principles embodied therein. While the initial onus of proving sub-letting or transfer of the leasehold is on the landlord, once the Court is satisfied that there has been a transfer of possession, the onus may shift and the tenant within whose special knowledge the facts explaining the manner in which such possession has been transferred he, may have to bear the burden thereafter."
In Abdul Aziz v. Mohd. Yaqub 1971 RCJ 492 , it was observed as follows:

"A landlord is almost always a stranger to agreements of sub-letting between his tenant and sub-lessee and he has generally to rely on attending circumstances to establish sub-letting by necessary inference. It must be very merely that direct evidence of sub-letting without the landlord consent, whether in the form of a lease deed or of the testimony of witnesses in whose presence the sub-lease is created, can come to the hands of the landlord."
We may also notice Dharamchand v. Kesturilal 1977(2) RCJ 276 . It was a case Under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, where, the landlord made an application for the eviction of the tenant on the ground of sub-letting. It was held that the landlord has to show by attending circumstances that the tenant has vacated the demised premises in favour of another person and the other person is in exclusive possession thereof. Thereafter, the onus is shifted to the tenant to establish as to in what capacity the sub-tenant is in possession. The language of Section 13(1) of the Act shows that it is for the landlord to satisfy the court whether one or more grounds mentioned there in are made out so as to entitle him to the decree for eviction. Initial burden to prove such subletting or parting with possession is always on the tenant but on the fulfillment of the conditions mentioned in Section 13(2) when once parting with possession is proved, the burden shifts on the tenant to show that the person is not a tenant Reference may be made to Harishanker v. Radha.

16. Our answer to the there question referred to shown by the learned single Judge are as under:

(1) Where a tenant allows another person to merely use the premises or part of the premises, he cannot 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(1)(e) of the Act.

(2) that the conversion of exclusive possession of the premises by the tenant into a joint possession of the premises by the tenant and a third person, does not constitute parting with possession Under Section 13(1)(e) of the Act.

(3) that the decision in Bhagwat Prasad's case 1969 WLN 351 so far as it held that a tenant by sharing the premises with a third person can be said to have parted with the possession of the premises does not lay down the correct law.
All the questions referred by the learned single Judge which have been mentioned here in above are, therefore, answered in the negative.

17. Let the answer be returned to the Single Bench for disposing of the appeal in accordance with law in the light of the answers given to the three question referred to by the learned single Judge.

18. In the circumstances of the case, the parties shall bear their own costs of this reference.

*******