J.P. Jain, J.
1. Madan Lal defendant has challenged the appellate decree paseed by the Civil Judge, Jhunjhunu, Camp Sikar dated 20.10.73 by which the suit of the respondents No. 1 and 2 for eviction and arreais of rent has been decreed.
2. Pannalal and Nathumal own the suit shop in the town of Fatehpur District Sikar. In the suit it was claimed by them that the suit shop was rented out to Satya Narayan defendant No. 1 at the monthly rent of Rs. 60/- for a period of 9 months and a rent note was executed on 13-5-66. According to the plaintiffs the rent was payable in accordance with English Calendar month starting from 13-5-66.
3. The rent was not paid by the defendant Satya Narayan and instead he sub-let the shop to Madan Lal defendant, who is running a Barber's business in the suit shop. The plaintiffs determined the tenancy of Satya Narayan by serving notices on bothh Satya Narayan and Madan Lal. On their having failed to surrender the possession of the suit shop, the present suit out of which this appeal has arisen, was instituted on 2-6-67 in the Court of Munsif, Sikar. A deciree for Rs. 720/- was claimed an arrears of rent, Rs. 40/- by way ot damages for use and occupation of the shop till the institution of the suit. A decree for eviction was also sought along with the prayer that damage a in the sum of Rs. 2/- per day for use and occupation of the suit shop be granted from the date of the suit till the delivery of posession of the suit shop.
4. Satya Narayan did not put in appearance and did not file the reply. The suit was, however, resisted by Madan Lal and his case in short was that he was directly a tenant, of the plaintiffs at the rate of Rs. 20/- per month of the suit shop for last seven years. He also alleged that he paid rent upto November, 1966 but from December, 66 the plaintiffs did not accept the the rent even when it was sent by money order. He denied to be the subtenant on the suit shop through Satya Narayan. On the same terms he replied to the notice of the plaintiffs. The Munsif dismissed the sun by his order dated 30-9-72. Against this decree Pannalal alone went n appeal impleading Nathmal as proforma respondent. The learned appellate Court held that the rent note Ex. 1 dated 13-5-65 is proved to have been executed by Satya Narayan. He held Satya Narayan to be the tenant. After discussing evidence, he came to the conclusion that Madan Lal has been occupying the suit shop as a Sub-tenant of Satya Narayan. In the result the first Appellate Court reversed the finding of the trial Judge and decree was passed against Satya Narayan and Madan Lal for eviction and for arrears of rent amounting to Rs. 720/- in favour of the appellant. He also ordered that the appellant shall get damages for u e and occupation of the shop at the rate of Rs. 60/- per month till the suit shop is vacated. This decree is subject matter of appeal before me.
5. Learned Counsel for the appellant contended that the rent note Ex. 1 is a document which has been got executed by Satya Narayan on false representation. For that purpose he referred to the statement of Satya Narayan D.W. 2. I have been taken throuch the statement of Satja Narayan, Panna Lal P.W. 1, Gulab Chand P.W. 4, Ladu Ram P.W. 2 and Bashir Ahmed P.W. 3 Bashir Ahmed is the (sic) of the document. As a matter of fact the document is a printed 'Kirayanama' form. The blanks have been filled up by him. Gulab Chand and Ladu Ram are the two attesting witnesses. They have provide that this document was executed at the instance of Satya Narayan, end signed by them as witnesses Satya Narayan D.W. 2 admitted his signatures on the rent note Ex. 1. But he stated that the plaintiffs told him that after getting the suit shop vacated they will let it out to him, and on that understanding be signed the document Ex. 1. So far the execution of the rent note is concerned, it is not disputed by Satya Narayan and it is also proved by the testimony of the scribe and the two attesting witnesses. The fact that the document was got executed by him on an assurance and in the circumstances sated by him, does not find corroboration from any other witness. Ansother important feature is that when he came to know that he did not get the suit shop as promised, he did not take step to lepudiate the execution of the document. So much so that he did not care to reply the quit notice served upon him by the plaintiffs. The reply that has been placed on record is behalf of Madan Lal alone. In this view of the matter it is difficult to accept the contention o Mr. Porohit learned Counsel representing the appellant that the document Ex. 1 is not a genuine rent note. Mr. Purohit also pointed out that the stamps accompanying the rentncte are dated 13-12-66. There is note appended to the document Ex. 1 and that is proved by the describe. This note mentions that the rent note does not bear stamps as they ware not available on the date it was executed and they will be (sic) with the rent note after they are purchased. This argument, therefore, does not advance the case of the appellant any further.
6. It has been admitted by Madan Lal that be is in occupation of the shop and is carrying on hair dressing business on the premises. The conclusion arrived at by the first appellate Court is based on evidence and circumstances of the case, am, therefore, unable to interfere in the finding of fact.
7. Another contention raided by Mr. Purohit is that the decree for mesne profits cannot be passed against the appellant in as much as there was no privity of contract between him and the landlord as held by the court. This argument is partially correct. The decree for Rs. 720/- which has been passed could only be awarded against Satya Narayan. defendant No. 1 as it relates to to the arrears of she rent. As regards the recovery of damages which has been decreed by the appellate court does not appear to be erroneous. The right of recovery of damages for use and occupation does not arise out of any thing contained in the Transfer of Property Act, but it is right under the general law of the recovery by the owner of damages from a person who has used his property. Reference may also be made to B Mallikarjunuh v. State of Mysore 1970 RCJ 404. In this case a residential building was leased to the Textile Superintendent, Mysore Division on a montly rent of Rs. 80/ under a lease created on April 1, 1951. The office of the Textile Superintendent was abolished on January 1, 1960. The Textile Superintendent instead of surrendering possession to the plaintiff handed over the building to the Assistant Director Industries and Commerce. The plaintiff claimed damages for use and occupation of the building from the Assistant Direct of Industries and Commerce. The suit was resisted by the State Government and it was held that the lease created in favour of the Textile Superintendent did not bestow any right of the Assistant Director Industries and Commerce to continue to been the occupation of the premises as the plaintiff's leasee. Thus, the Court granted decree for damages for use and occupation at the rate of Rs. 120/- per month, Learned Counsel for the appellant referred to Chimanlal Dalchand and Ors. v. Maharajdhiraj H.H. Shri Sumersinghji Bahadur of Kishangarh and Ors. . In this case a dercee was passed against the tenant by way of mesna profits. The tenant came in appeal contending that the decree should have been passed against the sub-tenant. Their Lordships held that in a case of sub lease the tenant is not exempted, from liability to pay rent under the lease. The appeal was dismissed. This case does not help the appellant in establishing the proposition that a decree for damages cannot be passed against the subtenants. The decree under appeal has been passed against both the respondents. As pointed out earlier the decree for arrears of rent could not have been passed against Madan Lal there being no privity of contract for payment of rent and this has also been conceded by Mr. Tibrewal.
8. In the result the appeal is partly allowed. The decree for eviction from the suit shop against Satya Narayan and Madan Lal is confirmed. The decree for arrears of rent in the sum of Rs. 720/- shall be treated to have been passed against Satya Narayan alone, and the decree for damages against both the defendants i.e. Satya Narayan and Madan Lal shall stand. The costs shall be easy through out.