C.M. Lodha, J.
1. This is a plaintiff's second appeal in a suit for arrears of rent and ejectment.
2. The case of the plaintiff Krishan chand Kapur is that a house known as Krishan Bhawan situated at Babu Mohalla, Kaisarganj in the city of Ajmer belongs to them. There are several blocks in this house and the whole of block No. 5 was rented out to defendant No. 1 Kishanchand Mehra on a monthly rent of Rs. 27/-. The plaintiff brought a suit for ejectment on August 31, 1961 against the defendant No. 1 in the court of Munsif, Ajmer City which resulted in a compromise and the defendant No. 1 agreed to enhance the monthly rent from Rs. 27/-to Rs. 38/-, It is alleged by the plaintiff that the defendant No. 1 kept defendant No. 2 as a subtenant in a part of block No. 1 and used to realise rent at the rate of Rs. 19/-, per month from him. The portion occupied by defendant No. 2 as sub-tenant consisted of three rooms and a Kitchen on the ground floor. The plaintiff's case is that when defendant No. 1 left Ajmer on his transfer to Beawar, he vacated a portion of block No. 1 which was in his actual occupation and delivered the possession of the same to the plaintiff on August 26, 1964 and also paid the rent upto the end of August 1964. But as regards the portion occupied by defendant No. 2 as a sub-tenant, the plaintiff's case is that the defendant No. 1 brought the defendant No. 2 to the plaintiff and the defendant No. 2 agreed to pay Rs. 19/- as rent per month for the apartments occupied by him with effect from Sept 1964. The plaintiff has further alleged that the defendant No. 2 did not pay rent thereafter and caused substantial damage to the property by removing a partition wall of a room and 'Verandah'. The plaintiff, therefore, filed the present suit on December 10, 1964 in the Court of Munsif City, Ajmer (West) against the defendant No. 1 Kishanchand Mehra and defendant No. 2 Shri B. N. Diwali praying that a decree may be passed against the defendant No. 2 for ejectment and arrears of rent amounting to Rs. 57/- as rent for three months from. Sept. to November 1964; for mesne profits from December 1964 when the tenancy is said to have been terminated by the plaintiff by a notice under Section 106, Transfer of Property Act to the date of the suit. The plaintiff also claimed Rs. 195,on account of damages and prayed that the defendant No. 2 may be made liable to pay future mesne profits at the rate of Rs. 19/-per month till delivery of vacant possession of the premises to the plaintiff.
3. Defendant No. 1 filed his written statement and denied the allegations made by the plaintiff in the plaint. However, he did not appear to contest the suit thereafter. Defendant No. 2 who has been contesting the suit throughout while denying the plaintiff's claim pleaded that he had been in adverse possession of the apartment in his possession in Block No. 1 in Krishan Bhawan, and had thus become the owner thereof.
4. The trial court framed as many as 15 issues and found that the plaintiff had been admitted as a sub-tenant by the defendant No. 1. He also held that the alleged direct tenancy between the plaintiff and the defendant No. 2 had not been established. The learned Munsiff also found that the evidence produced by the defendant disclosed that the defendant No.2 had entered into possession of the premises in question with the permission of Smt. Dhanno Devi in February 1966. The learned Munsif however refrained from giving any finding on the question whether the defendant No. 2 had succeeded in proving his ownership to the premises in question by adverse possession. In the result he dismissed the plaintiff's suit.
5. Aggrieved by the judgment and decree of the trial court the plaintiff filed an appeal in the court of District Judge. Ajmer which was transferred to the court of Additional Civil Judge, Ajmer for disposal. The learned Additional Civil Judge, concurred in the finding arrived at by the trial court that the defendant No.2 was not proved to be a sub-tenant of defendant No. 1. He also held that the relationship of land lord and tenant between the defendant No. 2 and the plaintiff had not been established. It was urged before him on behalf of the plaintiff that since according to the admission made by the defendant No. 2 in his statement he was only a licensee in respect of the premises in question a decree for ejectment on the basis of licence may be granted. This contention advanced on behalf of the plaintiff was, however, negatived by the learned Additional Civil Judge, with the result that the plaintiff got no relief in appeal. In these circumstances the plaintiff has come in second appeal to this Court.
6. I may observe at the outset that a mass of evidence has been put on the record by the plaintiff to prove his ownership to the premises in question, but I consider it neither desirable nor necessary to refer to this heap of evidence. The short question which arises for consideration in this appeal is whether the plaintiff, has succeeded in establishing the relationship of landlord and tenant between himself and the defendant No. 2 and in the alternative can be succeeded in ejecting the defenfant No. 2 from the premises in question on other grounds such as sub-tenancy or licensee?
7. There is ample evidence on the record that initially defendant No. 1 was living in Block No. 1 as a tenant of the Plaintiff on a rent of Rs. 27/-per month and the rent was subsequently increased by him from Rs. 27/- to Rs. 38/-. On this point there are clear admissions of defendant No. 1 himself. In the written statement filed by defendant No. 1 in the previous suit No. 786/1961 a copy of which has been placed on the record Ex. 5 and proved by the plaintiff himself as P. W. 1 it has been admitted by the defendant No. 1 that he was let in as a tenant of Block No. 1 Krishna Bhawan. A copy of the plaint in the previous suit has also been filed in the present case and is marked Ex. 156. The notice exchanged between defendant No. 1 and the plaintiff also clearly go to establish the fact that the defendant No. 1 was living as a tenant in Block No. 1 Reference may bi made to notice marked Ex. 1 date June, 28, 1961 given by the plaintiff to the defandant No. 1 and the reply given by the defdt. No. 1 dated Feb. 22, 1961 marked Ex. 3 Another set of notices exchanged between the plaintiff and the defendant No. 1 in this connection consists of Ex. 2, dated June, 28, 1961 given by the plaintiff to defendant No. 1 and the reply Ex. 4 dated July 21. 1961 given by the defendant to the plaintiff. Then again there is a compromise petition of the previous suit Ex. 6 dated May, 24, 1963 signed by the plaintiff and defendant No. 1, whereby the defendant No. 1 agreed to increase the rent of the Block No. 1 from Rs. 27 to Rs. 38/- All these documents are proved by the statement of the plaintiff The defendant No. 1 as already stated above, did not take part in the proceeding after finding the written statement and the evidence led by the plaintiff on this aspect of the case has not been controverted by the defendant No. 2, who has led no rebuttal evidence on this point. Thus it has been fully established that the defendant No. 1 was residing in Block No. 1 of Krishan Bhawan as a tenant of the plaintiff. There is also no doubt that the defendant No. 2 is occupying a part of Block No. 1 as is clear from the written statement as well as in his reply Ex. 117 dated November 27, 1964 to the plaintiff's notice Ex. 114 dated November 14, 1964. In this connection reference may be made to para No. 4 of the written statement filed by the defendant No. 2 wherein he has stated as follows:
That of the allegation made in para 4 of the plaint, only this much is admitted that the answering defendant has been in possession for a period much more then 12 years, and is still in possession of one room opening towards the main street in the East, along with the Chabutri in front and the room behind the opening in the chowk and the room behind the opening facting north and one another big room facing north and opening in the court yard and the Kitchen premises in the court yard alongwith the courtyard and all the space appurtenant courtyard thereto on the ground floor of the above said immovable property known as Krishna Bhawan, Block No. 1.
8. The question therefore, arises in what capacity did the defendant No. 2 come into possession of these apartments in Block No. I? The plaintiff's case is that he was let into possession of these apartments by the defendant No. 1 as latter's sub-tenant, wherear the case of the defendant No. 2 is that he is in possession of the same adversely to plaintiff. When the defendant No. 2 came in evidence and was cross-examined on this point, he stated that he started living in this house since 1946 with the permission of Mst. Bhanno Devi. This statement alone is enough to negative the stand of the defendant No. 2 that he has been in adverse possession of the property in question. But this, however, does not relieve the plaintiff of his duty to establish the alleged sub-tenancy. Mr. Jindal learned Counsel for the plaintiff, in these instance relied upon the admissions made by the defendant No. 1 in the various notices given by him to the plaintiff as also in the written statement filed by the defendant No. 1 in the previous suit to show that the defendant No. I had admitted in unequivocal terms that the defendant No. 2 was a sub-tenant. He submits that the defendant No. 1 was predecessor in title of defendant No. 2, who was the tenant in chief and therefore, the admissions made by him would be relevant against the defendant No. 2 Mr. Jindal has also placed strong reliance on the presumption contained in Sub-section (2) of Section 13, Rajasthan Premises (Control of Rent and Eviction) Act, 1850.
9. Sub-Section (2) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 reads as under:
(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 of 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 then in commensality with the tenant.
10. Mr. Gupta, learned Counsel for the respondent defendant No. 2 has urged that this is presumption of fact and it is discretionary for the court to draw it or not to draw it. He has argued that since a specified issue on the point of sub-tenancy was framed which is issue No. 3, and the plaintiff failed to prove it, this presumption should not be made against the defendant No. 2. Doubles correctly the presumption provided in Section 13(2) is a presumption of fact and is discretionary one. More often than not, it is difficult for a landlord to give direct evidence of sub-tenancy between a tenant in chief and the alleged sub-tenant because this is a matter specially within the knowledge of the tenant in chief and the1 alleged sub-tenant and that is why, the legislature has provided this presumption. In the present case, I have already held above that the defendant No. 1 was the tenant of the plaintiff with respect to the whole of Block No. 1, Krishan Bhawan. It also cannot be disputed that the apartments in respect of which the present suit has been brought are part of Block No. 1, and as already observed above, the defendant No. 2 has completely failed to show in what capacity he got into possession of these apartments. His plea that he has acquired a title to these premises by adverse possession is to be stated only to be rejected, and' the alternative stand taken by him in the course of his statement that he did go into possession of this property by permission of Mst. Dhanno Devi must be rejected as an after thought introduced for the first tirre in the course of evidence. It is not his case that he was living in commensality with the tenant Kishanchand Mehra defendant No. 2, nor is it his case that was occupying the premises in the capacity of servant of the defendant No. 1 He has been admittedly in possession of these apartments for a very long period. In these circumstances it would be reasonable to presume as provided in Sub-section (2) of Section 13 that these premises were sub-let to him by the defendant No. 1. This presumption is further strengthened by the admission made by the defendant No. 1 in this respect. None of the two courts below addressed itself to this aspect of the matter. Thus my conclusion is that the defendant No. 2 got possession of the premises in question as a sub-tenant of defendant No. 1.
11. Mr. Gupta, however, submits that the plaintiff cannot get any relief on the basis of the alleged sub-tenancy for more than one reason. He has vehemently argued that the plaintiff came forward with a case of allotment by the defendant No. 2 in favour of the plaintiff. He pleaded direct relationship of landlord and tenant between himself and the defendant No. 2 and that is why he claimed the relief for ejectment and arrears of rent against him alone and not against the tenant in chief, defendant No. 1. In support of his contention he relied upon Hiralal v. Kasturbaai : 3SCR343 where in it was held that the suit having been dismissed against the tenant in chief could not have been decreed against the sub-tenant.
12. Before I advert to this branch of argument of Mr. Gupta it would be proper to dispose of the plaintiff's case regarding the alleged attornment by defendant No. 2 in his favour. The plaintiff has no doubt deposed to this effect in his statement that before leaving for Benaras defendant No. 1 brought the defendant No. 2 to him and defendant No. 2 agreed to pay Rs. 19/- as rent for the premises occupied by him. This talk is alleged to have taken place on August 26, 1964. It is interesting to note that on August 31, 1964 the plaintiff gave a notice to defendant No. 1 and sent a copy of the same to the defendant No. 2 and wherein the fact of alleged attornment by defendant No 2 in favour of the plaintiff is conspicuous by its absence. It appears that the plaintiff realised the mistake committed by him and mentioned this fact only in a later notice Ex. 114 dated November 14, 1964. Both the lower courts have preferred not to rely on the statement of the. plaintiff on account of the omission on the part of the plaintiff to state this fact in the first notice Ex. A. 2. This is a finding of fact which is final so far as this court, is concerned. There is thus no escape from the conclusion that the plaintiff has failed to establish the alleged direct relationship of landlord and tenant between him and defendant No. 2.
13. Now I may refer to the question whether the plaintiff can succeed in this suit on the ground that defendant No. 2 is a sub-tenant of defendant No. 1, Learned Counsel for the respondent has submitted that the allegation of the subtenancy has made in the plaint only by way of narrative, but has not been relied upon as a cause of action for ejectment. It may, however, be recalled that a specific issue on the question of sub-tenancy was framed and the parties were fully alive to this issue Mr. Gupta, is no doubt correct that a decree for ejectment against sub tenancy alone cannot be passed. But in this case the tenant in chief has been impleaded as a party to the suit and a notice terminating the tenancy was served both on the tenant in chief as well as on the sub-tenant. The tenant in chief had an, opportunity to contest the suit and he actually filed his written statement traversing all the material allegations made by the plaintiff though for very obvious reasons he did not lead any evidence contrary to the clear admissions made by him in his written statement filed in the previous suit as well as in the notice given by him. Mr. Gupta relied on two Supreme court cases Trojan & Co. v. Nagappa : 4SCR789 and Sheodhari Rai v. Suraj Prasad singh AIR 1930 PC 57 besides an earlier Privy counsel case Sadik Mohsmed Shah v. Ms. Saran and Ors. AIR 1954 SC 458 in support of his contention, that no relief can be granted to a party in a case not set up by it. On the other hand Mr. Jindal learned Counsel for the appellant placed reliance on Official liquidator v. Burjorjee AIR 1932 PC 758 Houshan Bibee v. Hurray Kristo Nath ILR 8 Cal. 926 Kishangarh Municipality v. M.K. Mills Ltd. , and Bhagwati v. Chandramaul AIR 196 SC 735.
14. I have examined the rival contentions of the learned Counsel for the parties with care and am of opinion that in the facts and circumstances of the present case no prejudice would be caused to the defendant No. 2, if the case is dealt with even from the point of view of sub-tenancy. As already observed there was a specific issue on the point. Moreover a careful analysis of the point would show that the plaintiff has come forward with an alternative case of sub-tenancy. It would have been much better if he had stated in the plaint in so many words that in case for any reasons he failed to substantiate the plea or attornment by the defendant No. 2 in his favour relief may be granted to him on the basis of sub-tenancy But one cannot lose sight of the fact that the defendant No. I has been impleaded as a party and the alleged sub-tenancy has been pleaded with all the necessary details, and even in the relief clause in the main para a decree has been claimed against, both the defendants though in the sub-paras reference has been made to defendant No. 2 only. I do not think it necessary to make a detailed reference to all the authorities cited by the learned Counsel for the parties, but would content myself by inviting attention to the observation of their Lordships in Bhagwati v. Chandramaul : 2SCR286 , Their Lordships were pleaded to observe as follows:
If a plea is not specifically made and yet it is covered by an issue by implication and the parties know that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters, relating to the title of both parties to the suit are touched though indirectly or even obscurely in the issues and the evidence has been led about them there is the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot Succeed in every case. What the court has to consider in dealing with such an objection is did the parties' know that matter in question was involved in trial and did they lead evidence about it? If it appears, that the parties did not know that the matter was in issue at the trial and one of them had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter, To allow one party to rely, upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence and would produce consideration of prejudice and in doing justice, to one party, the court cannot do injustice to another.
15. It would be useful to make a passing reference to the facts of this Supreme court case. It arose out of a suit for ejectment based on tenancy set up by the plaintiff. The defendant pleaded that he had spent certain amount on the construction of the premises and according to the agreement entered into between the parties was entitled to remain in possession of the same until the amount spent by him was returned by the plaintiff. The plaintiff failed to prove the alleged tenancy and so also the defendant the alleged agreement, yet their Lordship held that in absence of proof of tenancy and of defendant's agreement the conclusion of the High Court in the first appeal that the defendant was in possession of the suit premises by the leave and licence of the plaintiff did hot cause prejudice to the defendant and there was no error of law if the decree for ejectment was passed. So also in the present case, it has been established that the defendant No. 1 was a tenant and the defendant No. 2 was a sub-tenant. The plaintiff has no doubt failed to prove the alleged allotment in his favour by the dependent No. 2 so, also the defendant has failed to prove his ownership to the premises in question. In these circumstances no prejudice would be caused to the defendant No. 2, if relief is granted to the plaintiff on the basis of the sub-tenancy established on the record.
16. Learned Counsel for the appellant also submitted that as the defendant himself had admitted his permissible occupation of the premises in question a decree can be granted against him even on the basis of licence in accordance with the view taken by their Lordships of the Supreme Court in Bhagwati v. Chandramaul AIR 196 SC 735. In view of the fact that I have come to the conclusion that relief can be granted to the plaintiff on the basis of sub-tenancy it is not necessary to decide the question whether the plaintiff can be given relief on the basis of licence?
17. The argument of Mr. Gupta that no decree for ejectment can be passed against the sub-tenant without passing a decree against the tenant in chief can easily be met in the present case because as already observed above the plaintiff has claimed decree against both the defendants. As regards the claim for damages suffice it to say that both the courts have given a concurrent finding against the plaintiff and it cannot be interfere with in second appeal. The fact that the rent or mesne profits of the appartments in possession of the defendant No. 1 is Rs. 19/-has not been disputed before me.
18 The net result of the foregoing discussion is that I allow this appeal, set aside, the judgment and decree of the court below and hereby decree the plaintiff's suit for ejectment against both the defendants. I also grant a decree for arrears of rent amounting to Rs. 57/- against the defendant, No. 1 only. The plaintiff will also be entitled to get mesne profits at the rate of Rs. 19/-per month from the defendant No. 1 from the date of the suit till delivery of possession. In the circumstances of the case I leave the parties to bear their own costs throughout.
19. Learned Counsel for the respondent prays for certifying the case to be fit one for appeal to Division. Bench However, I do no consider it a fit case. The prayer is rejected.