D.P. Gupta, J.
1. This appeal arises out of a suit for ejectment, which has been decreed by both courts below on the ground that the defendant had ' sublet the premises in dispute.
2. The plaintiff-landlords filed a suit for ejectment of the defendant-tenant from the suit premises, which consists of a shop in which a flour mill has been installed. The claim for ejectment was based on two grounds, viz. firstly, that the landlords had bonafide and reasonable personal necessity for the suit premises and secondly on the ground that the tenant had sublet the premises to one Jagdambalal. So far as the first ground of ejectment is concerned both the courts below have given a finding against the plaintiffs and the said ground has not been relied upon before me in this appeal.
3. On the ground of subletting, the plaintiffs asserted in the plaint that the defendant had sublet the premises in dispute to Jagdambalal. However, in his written statement the defendant took the stand that Jagdambalal was his employee and that he was running the flour mill through his employee. But in his statement in the witness-box the defendant admitted that he was realising Rs. 140/- per month from Jagdambalal, who was running the flour mill. According to the learned Counsel for the appellant the flour mill was given on contract basis to various persons, including Jagdamba Lai, from time to time but that the legal possession of the shop in dispute remained with the defendant and as such there was no sub-letting in law. Both the courts below have not accepted the contention of the defendant in this respect and have held that the shop in dispute was sublet by the defendant to Jagdambalal for a sum of Rs. 140/- per month. The question of giving the premises in dispute on contract basis was not pleaded by the defendant in his written statement but it was categorically stated therein that Jagdambalal was his employee. It was only at the stage of evidence that a new case was sought to be developed by the defendant. It is also admitted that the defendant was not in personal occupation of the suit premises, but the person to whom the flour mill was given on so called licence or contract was in possession. Such person was responsible for the profits and losses of the business of running the flour-mill and his liability was only to pay Rs. 140/- per month to the defendant. In these circumstances, I am unable to hold that the defendant retained legal possession of the premises in dispute. The case of subletting was held to be proved by both the courts below and the finding in this respect appears to be fully justified, by the circumstances of the case and the evidence on record. The cases cited by the learned Counsel for the defendant-appellant have no relevance to the facts of the present case and are not applicable. There is no reason to hold that Jagdambalal or for that matter any other person who was running the flour mill in the premises in dispute was merely an agent of the defendant. The contention of the learned Counsel for the defendant in this respect is repelled.
4. Another argument advanced by the learned Counsel for the defendant: appellant is that during the pendency of the first appeal one of the plaintiffs Ramchander had entered into a compromise with the defendant Gopi Kishan. The suit was filed by two persons viz. Shreepal and Ramchander as co-landlords, and even if one of the landlords had compromised the matter in dispute with the tenant-defendant, the decree for eviction cannot be set aside. At best the suit could be dismissed so far as Ramchander is concerned, who had consented to the dismissal of the suit and has entered into a compromise with the defendant. Shreepal did not give his consent either to the withdrawal of the suit or for setting aside the decree for ejectment. As a co-landlord he is entitled to get a decree of ejectment on the ground of subletting. The first appellate court rightly held that the decree for ejectment cannot be set aside merely because of the compromise deed presented by Ramchander plaintiff. The view taken by the first appellate court appears to be right and although the suit filed by Ramchander plaintiff is liable to be dismissed as compromised, the suit for ejectment filed by Shreepal has been rightly decreed by the lower appellate court. The decree in favour of Shreepal is maintained while that in favour of Ramchander is set aside.
5. In the result the appeal is partly allowed. The decree for ejectment passed by the two courts below in favour of Shreepal plaintiff is maintained, while that passed in favour of Ramchander plaintiff is set aside on the basis of compromise. The parties are left to bear their own costs of this appeal.
6. Learned Counsel for the appellants submits that Gopikishen has expired during the pendency of this appeal and is represented by his widow and minor sons and prays for six months' time to vacate the premises. In the circumstances of the case, the prayer appears to be reasonable and is allowed. The decree for ejectment passed in favour of Shreepal plaintiff is although upheld, it is ordered that the same shall not be executed for a period of six months. The appellants shall deliver vacant possession of the premises on the expiry of the aforesaid period of six months.