TaxTMI 
TaxTMI 
1989 (2) TMI 415
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....y on 1st August, 1971 the rent-note in fact was executed on 30th May, 1972. The respondent had filed the suit for eviction of the tenant-appellant on three grounds, namely, (i) that the tenant-appellant had parted with possession of the roof of the said shop-room by putting up an advertisement board; (ii) by putting up such advertisement board, fixing the same on the roof of the said shop-room with iron angles, the appellant had caused material alteration to the premises; and (iii) the appellant had defaulted in payment of rent. On or about 20th April, 1979, the trial court decreed the suit on the ground of default in payment of rent material alteration and sub-letting. The appellant preferred an appeal before the learned District Judge, Udaipur, who remanded the case back to the trial court for trial on all the three issues, on the ground that the appellant had not been allowed to cross-examine the respondent or to adduce evidence in defence. On remand, the trial court held that the appellant had caused material alteration by fixing the board on the roof; had parted with possession of the roof by such fixing of the board; and had committed default in payment of rent, Accordingly, ....
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....ree in question, in the instant case, was passed provides as follows: (e) that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or As mentioned hereinbefore, the decree in this case was passed by the High Court under Section 13(1)(e) of the Act on the ground that the appellant had parted with possession. The High Court in the judgment under appeal has noted that the plaintiff appellant had not disputed that the advertisement board was installed on the roof of the shop. The High Court noted that the appellant has also not disputed that he was getting the rent for this board and the document which was tendered, viz., Exhibit 6 showed that the Paramount Services had written a letter to the landlord-respondent Gulam Abbas herein and the same had been accepted by the appellant. The said Ex. 6 read as follows: Shri Gulam Abbas Bhalam Wala, Udaipur. Dear Sir, We wish to write that we have taken the site for putting up commercial board on the terrace of the shop of Saran Optician Udaipur. This site is with us for the last 1/2 year. Yours faithf....
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....t on behalf of the landlord-respondent, namely, that the rent was tendered and that when it was refused by the landlord, the tenant had deposited the rent in the Court under Section 19-A of the Act had not been established. There was also the finding on the issue of material alteration and that was also not established by the respondent-landlord. But the High Court, in view of this finding under Section 13(1)(e) of the Act, as set out hereinbefore, found it unnecessary to go into those reasons and passed a decree for eviction. Aggrieved thereby, as mentioned hereinbefore, the tenant has come up in appeal to this Court, 3. We find a certain amount of confusion as to what was the actual state of affairs. The pleadings of the plaintiff-respondent, the landlord in connection with the allegations of parting with possession are set out in paragraphs 5, 6 and 8 of the plaint and these have been answered by the appellant in paragraphs 5, 6, 8 and 9 of the written statement. It may be appropriate at this stage to set out the same both in Hindi as well as in English. Paragraph 5 is as follows: Hindi Original: 5. YEH KI PRAT1VADI NE BINA VADI KO POOCHHE AVAM VADI KIANUMAT....
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....LE LAGAYE HO VAH SIGN BOARD BINA DUKAN KI DIWARON ATHVA CHHAT KE FARSH KO KISI BHANTI HANI PAHUCHAE HUVE LAGAYA GAYA HAI GADA NAHIN GAYA HAI. IS SIGN BOARD LAGANE MAIN VADI KO LIKH1T ANUMATI LENE AVASHAK NAHIN THA, VIASE VADI KE PURAN CYAN MAIN YEH BOARD LAGAYA THA TATHA AISA KARNE MAIN VADI NE KABHI APATTI NAHIN UTHAYEE, ARTHAT VEDI KI AWAKRITI NAHI HAI. Para 6 of the Written Statement reads as follows: In English: The allegations in paragraph 6 of the Plaint that the Board belonged to any other advertising agency is false. The defendant himself has placed the said board in the normal course of his carrying on the business. The defendant is using the said disputed shop on his own right for the purposes of carrying on his normal business. Hindi Original: 6. VAD PATRA KA PAIRA 6 MAIN YEH MITHYA HAI KE BOARD KISI ADVERTISING AGENCY KA LAGA HUVA HAI. PRATIVADI SWAM NE VAH BOARD LAGAYA HAI TATHA APNA SADHARAN VAVASAYE KARTE LAGAYAHAI. TATHA VADGRAST DUKAN KA PANE SADHARAN VAVSAYE MAIN HI UPYOG KAR RAHA HAI AVAM SADHIKAR RAR RAHA HAI. Para 8 of the Written Statement is as follows: In English: The Contents of para 8 of the Plain....
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....ng the said angles in the wall which was again not admitted as correct by the appellant, any material alteration was made. However, a photograph of the board was produced by the plaintiff and the same was marked as Ex. 2. After the case was remanded, the trial court directed the plaintiff to appear before the court and to subject himself to cross-examination by the defendant and also to produce his evidence, if any. In spite of several opportunities the plaintiff did not appear before the Court and submit himself to cross-examination. As the plaintiff neither submitted himself for further cross-examination nor produced any other evidence or witness in support of the plaint the defendant led defence evidence and got himself examined, The English translation of the said evidence of the defendant-appellant was filed on behalf of the appellant at the hearing of this appeal. From the said evidence it would appear, he had stated, inter alia, as follows: (a) I have affixed the Board on this shop for advertisement. The said Board is affixed in cement pillars (should be pot) and for affixing the said boards neither the roof nor the walls of the shop were dug; (b) The Board....
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.... the appellant parting with possess on by putting up the heading In examination-in-chief also he did not make out such a case and on the contrary his case was that it was that it was the defendant-appellant who had put up the hoarding. The plaintiff did not all that the defendant-appellant was not carrying on also advertising business It was submitted on behalf of the appellant that having refused to submit to cross-examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The board was made by him, pain-tines and writing were also done by him and for putting the hoarding he charged from his customers. therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was factor which would indicate that there was parting of possession by him. It was h....
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....s any parting with the possession. It was submitted that simply the display of advertisement board on the disputed premises did not amount to parting with possession of the premises. The High Court was wrong, it was urged, in accepting the plea of the respondent of parting with possession only on the basis of the letter dated 20th January, 1977 (Ex. 6). The learned District Judge in the first appeal had accepted that there was no parting of possession. The High Court, on the other hand, in the judgment in appeal relying on Ex. 6 came to the conclusion that the appellant was getting rent for this board and the appellant had accepted document Ex. 6 which Paramount Services had written to the appellant. The High Court was wrong, it was submitted on behalf of the appellant, that Ex. 6 clearly showed that Paramount Services had installed this board on the terrace of the shop and the shop was with them for six months. The learned District Judge on an analysis of the same evidence came to the conclusion that there was no parting with possession. The High Court on an analysis of the same evidence came to the conclusion that there was. It is, therefore, necessary as the learned District Jud....
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....that there was no alteration of the premises or damage. The learned District Judge considered the question and the arguments that the defendant-appellant was not doing the work of advertisement and he had the business of spectacles and he had let out the space on rent for fixing the hoard on the roof and that he had got a board fixed there from which it was clear that he had parted with the possession of the space on the roof and he had further given it on rent. Emphasis was laid on behalf of the respondent and lord on Ex. 6. Ex. 6, it may be mentioned, is subsequent to the accrual to the cause of action. The suit was filed in 1974. Ex. 6 is dated 20th January, 1977. Considering the aforesaid contentions and the position in law, the learned District Judge came to the conclusion that by Ex. 6 no portion of the disputed shop was given to the exclusive possession of the advertising agency or the defendant had not divested itself of any part of the roof. Simply by displaying the advertisement board on any portion of the roof, it could not be said that the possession had been delivered to the company to which the board belonged, according to the learned District Judge. He further held t....
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....g with possession in terms of Section 13(1)(e) of the Act. 11. In this connection, it may be appropriate to refer to the deposition of the tenant, wherein he had stated: USS BOARD PAR PRACHAR KE TEEN SALL KE PANDRAH SAU RUPAYE MAIN LETA THA JISMEN PAINTING AUR BOARD AUR LIKHAVAT KA KHARCH MERE THA 12. The above, in our opinion, indicates that the board was used for publicity and paintings and other expenses were of the tenant. therefore, it was the tenant who was carrying on the business. The learned trial Judge was noted the evidence on this. The learned trial Judge in his judgment at page 96 of the paper-book had observed that the defendant in his written statement had admitted about the fixation of signboard on the shop. But the board had been displayed by not fixing anything on the wall or any angles on the roof. The plaintiff landlord had not submitted any evidence but the defendant tenant in his evidence had admitted that he had fixed the board in the walls of the cement which was fixed permanently, and he fixed the board time to time during the course of his business of advertisement. The defendant further admitted that in 1974, he had advertised the board of ....
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....e said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right of concurrent user there is no parting with possession. Retention of a key may be a negative indicium and the authorities on the whole show nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to a parting with possession. The fact that the agreement is in form a licence is immaterial, as a licence may give the licensees exclusive a right to the legal possession as to amount to a parting with possession. How does the present licence exclude the defendants from any part of the premises? It no doubt gives the licensees the exclusive right to use the wall for an advertisement hoarding. No one, including the defendants, can use the wall for that purpose. On the other hand the defendants remain to a large extent in possession of the wall. 14. It was contended in that case that the front of the wall was wholly in the control of the licensees. That is not wholly the true view. Justice Farwell observed. The right o....
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....ercial activity. In that case, possession given to the advertising agency was exclusive with the right to include advertising agency and also the right to exclude others including the tenant herself. The proposition of law laid down in Stening v. Abrahams (supra) was approved in Gee v. Hazleton (supra). In this connection, a reference may be made to the observations of Lord Justice Scrutton at page 185 of the report, where the learned Lord Justice had observed as follows: I can conceive in some advertising cases, cases of advertising boards, that different views may be taken when the advertising station consists of a board put on a dwelling-house. There the paramount use of the wall is as the wall of the dwelling-house; and there is also a difficulty in defining what one gets possession of when the possession granted is that of an advertising station attached to a wall. Here there is no difficulty of that sort. Lord Justice Slesser at page 192 of the report referring to the Stening v. Abrahams (supra) noted the view that the exclusive right to legal possession could amount to parting of possession. It is interesting to note in that case before the court Mr. A.T. Denning....
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.... he himself remained in possession of them. This position was also accepted in Vishwa Nath v. Chaman Lal AIR 1975 Del 117 wherein it was observed that parting with possession is understood as parting with legal possession by one in favour of the other by giving him an exclusive possession to ouster of the grantor. If the grantor had retained legal possession with him it was not a case of parting with possession. In this connection, reference may be made to the observations of this Court in Madias Bangalore Transport Co. (West) v. Inder Singh and Ors. AIR1986SC1564 wherein the observations of the Delhi High Court had been approved. The concept of parting with possession in private contracts between the landlord and tenant was also known in India and it means parting with legal possession to the exclusion of the grantor himself. In this connection the observations of this Court in Dr. Vijay Kumar and Ors. v. Raghbir Singh Anokh Singh AIR1973SC2254 may be referred to. There he Rent Controller had found that the appellants had partitioned the shop in question in two portions. The two portions were demarcated by a wooden partition wall. In one portion there was the clinic of the f....
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....stablished, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, the right must be in lieu of payment of some compensation or rent. In this case, the tenant or the sub-tenant did not have any exclusive possession or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation, on the basis of the facts as indicated hereinbefore. 20. From the aforesaid, it appears to us that the question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either sub-tenancy or parting with possession. In Associated Hotel of India Lid., Delhi v. S.B. Sardar Ronjit Singh [1968]2SCR548 it was held on the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is whether the landlord retained control over the apartment. Similarly, it was held by this Court in Smt. Krishnawati v. Shri Hans Raj [1974]2SCR524 that sub-letting like letting, is....