C.M. Lodha, J.
1. This is an appeal by the plaintiff-landlords from the appellate judgment and decree by the Additional Civil Judge, Ajmer who upheld the decree against the original tenant Ramjidas, and one sub-tenant Heeralal, but dismissed the suit against the heirs of Suryanand-another subtenant in respect of the ground-floor of the suit premises.
2. It is undisputed that the premises in question were originally let out to Ramjidas who sublet the ground-floor (except one Baithak) on rent of Rs. 16/- to Suryanand In the suit for ejectment filed by the plaintiffs, not only the tenant Ramjidas but the alleged sub-tenants Heeralal and Suryanand were also impleaded on the ground that a part of the premises had been sublet to them without the consent of the land-lord. Two additional grounds ware relied upon for ejectment, viz. defaults in payment of rent and nuisance. All the defendants resisted the suit and after trial the learned Munsiff, Ajmer City (East) held that all the three grounds relied upon by the plaintiffs, viz default in payment of rent, subletttng and nuisance were proved and in this view of the matter he declared the plaintiffs' suit for ejectment against alt the defendants. A decree for arrears of rent was also passed but that paint is no more in dispute and is not a subject-matter of this appeal,
3. Aggrieved by the judgment and decree of the trial court the legal representatives of Ramjidas as well as those of Suryanand filed appeal is both Ramjidas and Suryanand had died during the pendency of the suit. Heeralal did not file appeal. The learned Additional Civil Judge, Ajmer by his judgment dated 21 3-1968 partly allowed the appeal and modified thejudgment and decree by the trial court to the extent that the plaintiffs' suit for ejectment against the heirs of Suryanand in respect of the ground-floor was dismissed. Rest of the decree was maintained. Dis-satisfied with the judgment by the first appellate court the plaintiffs have filed this appeal.
4. A preliminary objection has been raised on behalf of the respondents as to maintainability of the appeal on the ground that the heirs of Ramji Das (original tenant) have not been impleaded in the appeal. In my opinion, this preliminary objection is very much connected with the merits of the case itself, and I will therefore deal with it after discussion on merits of the case.
5. The only contention raised on behalf of the appellants is that the learned Additional Civil Judge has erred in coming to the conclusion that by virtue of the provisions of Section 20 of the Delhi and Ajmer Rent Control Act, 1952 Suryanand became a tenant of the plaintiffs and since he had not incurred any liability to be ejected no decree for ejectment could be passed against him.
6. It may be pointed out here that the Delhi and Ajmer Rent Control Act, 1952 was repealed on 27.11.1957. The Court below has by placing reliance on an agreement executed between Suryanand & the plaintiff Aditya Prakash dated 21.9.1957 (Esc. B. 1) came to the conclusion that the tenancy of Ramji Das in respect of the ground floor came to an end on 21-9-1957 and that by virtue of Section 20 of the Delhi and Ajmer Rent Control Act, 1952 (which will hereinafter be called the Act of 1952) Suryanand became directly a tenant of the landlord Aditya Prakash.
7. I have carefully examined the contents of Ex. B. 1. It is undoubtedly signed by the landlord Aditya Prakash, and the sub-tenant Suryanand. There is, however, nothing in it to indicate that the landlord had accepted Surya Nand directly as his tenant. On the other hand, it is clearly mentioned therein that Suryanand had been admitted as a sub-tenant by the tenant Ramji Das on a monthly rent of Rs. 16/-. All that can be inferred from Ex. B 1 is that the landlord consented to Suryanand being admitted as a sub-tenant of Ramjidas. It is frankly conceded before me that ever since Ex. B 1 was written, no rent was accepted by the plaintiffs from Suryanand. Ex. B. 1 does not bear the signatures of Ramjidas at all. It has, however, been strongly urged that in the circumstances of the case Ramjidas' tenancy qua the ground floor must be deemed to have been terminated by implied surrender I am, however, unable to accept this contention A line of distinction must be drawn between a sub-tenant being admitted by the tenant with the consent of the landlord & a case where the original tenancy between the landlord and the tenant comes to an end and a fresh tenancy is created directly between the land lord and the sub-tenant. It would not be correct to say that whenever a sub-tenant is inducted in the premises by the tenant with the consent of the landlord the tenancy of the original tenant must be deemed to have been determined by implied surrender There must, of necessity be some thing more to indicate that the original tenancy came to an end and a fresh tenancy between the landlord and the sub-tenant came into existence. My conclusion therefore is that in the facts and circumstances of the present case on the basis of Ex. B. 1 alone no direct relationship of landlord and tenant can be said to have come into existence between the plaintiff and Suryanand
8. I may now advert to the provisions of Section 20 of the Act of 1952 which reads as below:
Where the interest of a tenant of any premises is determined for any reason any sub-tenant to whom the whole or any part of such premises has been lawfully sublet whether before or after the commencement of this Act shall subject to the provisions of this Act be deemed to become the tenant of the landlord on the same terms and conditions on which he would have held from the tenant if the tenancy had continued.
The very first ingredient for the application of this section is not fulfilled in the present case as the interest of the tenant was not determined Admittedly it had not been determined by the landlord and there was no implied surrender by the tenant as already discussed above. Of course a part of the premises was undoubtedly sublet to Suryanand lawfully because on the basis of Ex B. I it can safely be said that it was with the consent of the landlord. But by fulfilment of this condition alone applicability of the section is not attracted. Thus, in my opinion. Suryanand did not become a tenant of the plaintiff by virtue of Section 20 of the Act of 1952 though it was undoubtedly in force at the time Ex B. I was written and signed by the landlord Aditya Prakash.
9. In view of what has been stated above, the learned Additional Civil Judge, was not justified in coming to the conclusion that Suryanand became a direct tenant of the plaintiffs by virtue of Section 20 of the Act of 1952. The other finding recorded by the learned Judge that since Surya Nand had been admitted as a sub-tenant with the consent of the landlord he could avail of the protection provided under the Rajasthan Premises (Control of Rent and Eviction) Act, 1960 is obviously wrong and the leraned Counsel for the respondents has not rightly relied upon this argument,
10. Now the position that boils down is this that the basis on which the decree for ejectment passed against Suryanand has been set aside by the first appellate court is knocked out. No relief has been claimed against the legal heirs of Ramji Das in this appeal and in fact none was necessary because the decree for ejectment had been passed against them and they have not questioned it. I then fail to understand bow the heirs of the original tenant Ramji Das are necessary parties to this appeal? It cannot be said that in their absence no effective relief can be given to the plaintiff against the heirs of Surya Nand.
11. In the result, I allow this appeal, set aside that part of the judgment and decree by the Additional Civil Judge Ajmer whereby he has directed that the plaintiffs' suit for ejectment against the heirs of Suryanand from the ground-floor excepting 'Baithak' be dismissed. In the circumstances of the case, I make no order as to costs.
12. Learred counsel for the respondents prays for grant of some time to vacate the premises In the circumstances, I allow three months' period to the respondents provided they pay to the plaintiffs or deposit in the trial court mesne profits for these three months at the rate of Rs. 16/- per month within fifteen days of each month's rent, falling due.
13. Leraned Counsel for the respondents prays for leave to appeal Under Section 18 of the Raj High Court Ordinance Leave is refused.