Written consent is essential for lawful subletting; knowledge, rent acceptance, or long occupation do not amount to waiver.
Eviction could not be sustained on an abandoned ground of damage, addition or alteration under the Transfer of Property Act, because a party cannot be allowed to revive an not pressed at trial. Subletting was upheld on concurrent findings of exclusive possession by a third party: written landlord consent is required, and mere knowledge, acquiescence, rent acceptance, or long occupation does not amount to waiver or create a lawful subtenancy. The substitution order also stood, as the later supply of the death date and the accepted explanation supported bringing the legal representatives on record and curing any abatement objection.
Issues: (i) whether a decree for eviction could be sustained on the alleged violation of Section 108(m)(o)(p) of the Transfer of Property Act when that ground had not been pressed in the trial court; (ii) whether the tenancy was validly sublet and whether long occupation with the landlord's knowledge amounted to waiver in the absence of written consent; (iii) whether the suit had abated on the death of the original defendant and the substitution application could be sustained.
Issue (i): whether a decree for eviction could be sustained on the alleged violation of Section 108(m)(o)(p) of the Transfer of Property Act when that ground had not been pressed in the trial court.
Analysis: The ground based on damage, addition or alteration was not pressed before the trial court, yet the appellate court granted eviction on that basis. A ground deliberately abandoned at trial cannot be resurrected and decided in appeal as if it had been pursued throughout. The appellate court was therefore not justified in founding eviction on that issue.
Conclusion: The eviction decree could not be supported on the ground of violation of Section 108(m)(o)(p) of the Transfer of Property Act.
Issue (ii): whether the tenancy was validly sublet and whether long occupation with the landlord's knowledge amounted to waiver in the absence of written consent.
Analysis: The courts below had concurrently found exclusive possession of part of the premises with a third party and had rejected the plea of joint tenancy. The governing principle applied was that subletting requires the landlord's consent in writing, and mere knowledge, acquiescence, acceptance of rent, or long duration of occupation does not by itself create a lawful subtenancy or amount to waiver. The plea of benami was also rejected as it was neither properly pleaded nor established.
Conclusion: The finding of subletting was upheld and the tenant remained liable to eviction on that ground.
Issue (iii): whether the suit had abated on the death of the original defendant and the substitution application could be sustained.
Analysis: The application for substitution was initially filed without the date of death because that information had not been supplied by the deceased defendant's side. Once the date was disclosed, steps were taken and the court accepted the explanation. In the circumstances, the application could be treated as one effectively seeking to bring the legal representatives on record and, if necessary, to cure abatement. The technical objection of non-service did not justify upsetting the order in second appeal.
Conclusion: The order allowing substitution was valid and the plea of abatement failed.
Final Conclusion: The appellate decree of eviction was affirmed, the challenge failed on all substantive grounds, and the appeal stood dismissed.
Ratio Decidendi: A subtenancy is not lawful without the landlord's written consent, and mere knowledge, acquiescence, acceptance of rent, or long occupation does not amount to waiver; a substitution application may be sustained where the date of death is subsequently supplied and the explanation for delay is accepted.
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