C.M. Lodha, J.
1. This is a defendants-tenants' second appeal arising out of a suit for ejectment in respect of a plot of land situated in Nehru Bazar in the town of Udaipur leased out to the appellant No. 1 Gulam Mohd. by Kishanlal original plaintiff on 1st February, 1962 on a monthly rent of Rs. 50/-. Kishan Lal died during the pendency of the suit and is now represented by his sons and daughters, who are respondents in this appeal. The suit was based on two grounds namely. (1) personal necessity of the landlord for the plot in question and (2) sub-letting. Since the auestion of personal necessity has been decided against the landlord by both the Courts below and has not been pressed before me, I do not think it necessary to give the details of personal necessity alleged by the plaintiff. As regards the allegations about sub-letting, the plaintiff alleged in para. No. 5 of the plaint that he had come to know on 1st June, 1968 that the defendant No. 1 Gulam Mohd. had sub-let the Plot in Question to Adarsh Loha Sahkari Samiti. Bapu Bazar. Udaipur (hereinafter referred to as 'the Samiti') clandestinely without the permission of the plaintiff. It was further alleged that a portion of the plot had also been sub-let to the defendant No. 3 Chhotu (deceased) without the permission of the plaintiff. It may be stated, here, that Chhotu died during the pendency of the first appeal and his legal representatives were not brought on the record. It is necessary to state this fact, as an argument, which I shall deal with later, has been raised before me by the learned counsel for the appellant that on account of the failure of the plaintiff to bring on record the legal representatives of Chhotu, the appeal filed by the plaintiffs in the first appellate Court had abated.
2. To continue the narration of facts, the defendant No. 1 Gulam Mohd. denied the alleged personal necessity of the plaintiff for the plot in question as well as the allegation regarding sub-letting, to either defendant No. 2, the Samiti or the defendant No. 3 Chhotu and further pleaded that he himself carried on business in the name of the Samiti and that this business of the Samiti was being carried on by him from the very day the plot was leased out to him and that the receipts for rent had also been issued in the name of the Samiti.
3. The trial Court negatived the plaintiff's allegations regarding personal necessity as well as sub-letting and dismissed the suit.
4. On appeal by the plaintiffs, the learned Additional Civil Judge. Udaipur, while upholding the trial Court's finding on the question of personal necessity, reversed the iudgment and decree of the trial Court on the ground of sub-letting which was held to be proved and in the result decreed the suit for eiectment. Hence, this second appeal by the defendants Gulam Mohd. and the Samiti.
5. As already stated above, it appears that defendant No. 3 Chhotu who was respondent No. 3 in the first appellate Court, died during the pendency of the first appeal. The appellant Gulam Mohd. has filed his own affidavit in support of his contention that Chhotu died on March 24, 1973 during the pendency of the first appeal and has also produced death certificate issued by the Registrar. Birth and Death, Municipal Council, Udaipur under the Birth and Death Registration Act, 1969. It is submitted that on account of the failure on the part of the plaintiffs to bring on record the legal representatives of Chhotu, the appeal filed by the plaintiff abated and the learned Additional Civil Judge should have dismissed The appeal on this ground.
6. Learned counsel for the respondents neither denied the factum of death of Chhotu during the pendency of the first appeal nor has he controverted. the appellants regarding the date of death of Chhotu and the heirs left by him as mentioned in para. No. 2 of Gulam Mohd's. affidavit. It must be therefore taken for granted that Chhotu did die during the pendency of the appeal in the lower appellate Court and his legal representatives were not brought on record. The contention of the learned counsel for the appellants is that the result of not bringing on record the legal representatives of Chhotu would be that the decree of dismissal of the suit by the trial Court became final qua Chhotu and there was a possibility of a conflicting decree being passed and was, in fact, passed bv the first appellate Court by accepting the appeal and decreeing the plaintiff's suit. In support of his contention, learned counsel has relied upon State of Punjab v. Nathu Ram, AIR 1962 SC 89: Rame-shwar Prasad y. Shambherilal Jagannath, AIR 1963 SC 1901; Sri Chand v. M/s. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427; Ramagya Prasad Gupta v. Murli Prasad. AIR 1972 SC 1181; Dwarka Prasad Singh v. Harikant Prasad Singh. AIR 1973 SC 655: Nemichand v. Harak Chand, 1964 Rai LW 428 = (AIR 1965 Rai 132); Bhagwan Sinah v. Kulwinder Singh, AIR 1974 Punj & Har 5 and Jeth-mal v. Ramdeo, S. A. No. 173 of 1968, D/-15-2-1973.
7. The relevant provision on the subject is Order 22. Rule 4 of the Civil Procedure Code, which reads as under:--
"(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."
7-A. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interest of the appellants and the respondents other than the deceased respondent, it is to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters that it will have to refuse to pro-ceed further with the appeal and, therefore, dismiss it.
8. As observed by their Lordships of the Supreme Court in AIR 1962 SC 89 (Para 6) :--
"The question whether a Court can deal with such matters or not, will depend on the facts of each case and there-fore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which would be in conflict with the decision between the appellants and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent: (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed."
8-A. The above proposition of law laid down by the Supreme Court has held good in all the subsecment cases cited by the learned counsel and I do not consider it necessary to discuss each of them.
8-B. An argument has been advanced on the basis of Rameshwar Prasad v. Shambherilal Jagannath, AIR 1963 SC 1901; Shri Chand v. M/s. Jagdish Per-shad Kishan Chand, AIR 1966 SC 1427; Ramgya Prasad Gupta v. Murli Prasad, AIR 1972 SC 1181 and Dwarka Prasad Singh v. Harikant Praaad Singh. AIR 1973 SC 655 that where the plaintiffs, whose suit had been dismissed, had filed appeal and thereafter one of them died and his heirs were not brought on the record, the appellate Court had no power to proceed to hear the appeal and reverse or vary the decree in favour of all the plaintiffs under Order 44, Rule 4 of the Code of Civil Procedure, even when the decree proceeded on a ground common to all the plaintiffs. This proposition, with respect, is correct. But the principle laid down in the above cited cases has no application to the facts and circumstances of the present case. As a matter of fact an exception was engrafted by their Lordships of the Supreme Court in a case where some of the plaintiffs filed appeal making one or more of them who were jointly interested in the claim a party respondent and on his death his heirs had not been brought on the record. Reference in this connection may be made to Ratanlal Shah v. Firm Lalmandas Chhadamma Lal, AIR 1970 SC 108 and Mahabir Prasad v. Jage Ram, AIR 1971 SC 742. In the latter case, it was observed that:
"Competence of the appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record. Power of the appellate Court under Order 41, Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceedings before the subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents."
But as I have stated above, the facts of the present case are distinguishable and the only question to be decided is whether the Court can deal with the matter in controversy so far as regards the rights and the interest of the appellants and the respondents other than the deceased respondent are concerned and if it could, it had to proceed with the appeal and decide it. The plaintiffs made allegation of sub-letting to two persons namely, the Samiti and Chhotu. Consequently, even after the allegation of sub-letting against Chhotu was decided against the plaintiff, the suit could still proceed against the other defendants on the allegation of subletting to the Samiti. It was not a ioint claim in which all the defendants were jointly interested and the Court could deal with the question of sub-letting qua Gulam Mohd. and the Samiti even in the absence of Chhotu. In fact, the subtenants were not necessary parties to the suit. Thus, it cannot be said that it was not possible for the Court to deal with the question of sub-letting by the defendant No. 1 to the defendant No. 2 Samiti in absence of Chhotu.
9. In his rejoinder learned counsel for the, appellants relied on one more authority to lend support to his contention, namely Babu Sukhram Singh v. Ram Dular Singh. AIR 1973 SC 204. I have gone through this ruling and am of opinion that it deals with a case of Ioint claim against all the defendants and the facts and circumstances of the case were completely different. The principle laid down therein has no application to the facts of the present case. Consequently, I am of opinion that the appeal did not abate on account of the plaintiff's failure to implead the legal representatives of Chhotu and the lower appellate Court was justified in dealing with the matter in controversy so far as regards the rights and the interest of the appellants and the respondents other than the deceased respondent Chhotu were concerned and in this view of the matter. I overrule this objection.
10. This brings me to the consideration of the appeal on merits. The only point which survives for decision is whether sub-letting of the premises by Gulam Mohd. to the Samiti is established and if so whether it was without permis-sion of the landlord ? In this connection learned counsel for the appellants has strenuously urged that it was the boun-den duty of the plaintiffs to have proved that the premises had been sub-let by Gulam Mohd. to the Samiti without permission of the landlord, and the Court is precluded from passing a decree for ejectment unless sub-letting without per-mission of the landlord is proved. In support of his contention, learned counsel for the appellants has relied upon Mani Ram v. Satpal Kapoor. AIR 1972 J & K 37; Julumdhari Rai v. Debi Rai, AIR 1965 Pat 279; Ram Kumar Das v. Jagdish Chandra Deo. AIR 1952 SC 23.
11. On the other hand, Mr. Agar-wal learned counsel for the respondents has argued with equal vehemence that since Gulam Mohd. had denied the factum of sub-letting altogether, there arose no question for the plaintiffs to prove want of permission. He has also argued that since there is a specific condition in the 'Kabuliat' prohibiting the tenant from sub-letting, the question of consent does not arise as prohibition is an express negation of consent. Learned counsel for the respondents has relied upon Abu v. Chek Ponnambath Beebi, 1970 Ren CR 212; Kanappa Chettiar v. Veerasami. 1972 Ren CR 555 = (AIR 1972 Mad 303) and Sailendra Kumar Roy Chaudhurv v. Abdul Latif Khan, (1961) 65 Cal WN 1050.
12. The authorities cited by the learned counsel for either party relate to the question as to from what circumstances the consent or permission may be inferred ? Learned counsel for the appellants laid great emphasis on the fact that for a number of years the plaintiffs had accepted rent from the Samiti and, therefore, either a direct relationship of landlord and tenant may be presumed between the plaintiffs and the Samiti or at any rate if it is found that it is a case of sub-letting, then the consent or permission of the landlord must be presumed.
13. The foremost point that arises for decision is, whether there has been sub-letting ? The plaintiffs alleged subletting in para. No. 8 of the plaint, and the defendant Gulam Mohd. refuted the same and further pleaded that from the very beginning he had been carrying on the work in the premises in question in the name of the Samiti and that he had taken the premises on rent for that purpose only. The trial Court framed issue No. 2 on this point, which runs as under:--
"Has the defendant No. 1 sub-let the plot in question to defendants Nos. 2 and 3 ? (Burden on the plaintiff)
P. W./1' plaintiff Kishanlal (deceased) has not stated a word about sub-letting. P. W./2 Ganeshlal also did not say a word in his examination-in-chief but on being cross-examined on the point, he stated that it is wrong that he had recovered rent from the Samiti though he has admitted the signatures of his father Kishanlal on the rent-receipts Exhibits A/7 to A/9, which are in favour of the Samiti. He has further admitted that the present business in the plot was being carried since 1962. He has also admitted that he was present at the time the plot was leased out. He goes on to state that it is wrong that the defendant had said that the plot was being taken for the Samiti. He has also admitted that Samsuddin is Gulam Mohd's father. He has further stated that he had been seeing a signboard of the Samiti on the premises for the last 2, 3 or 4 years and that he had also recovered rent in respect of the premises in dispute. P. W./3 Mohanlal, son of the deceased landlord Kishanlal, has stated that the defendant had been given the plot in question on lease which he had sub-let to somebody. He has further stated that there is a board of the Samiti on the premises. It is conceded by the learned counsel for both the parties that P. W. 4 Shantilal. P. W. 5 Kanhaiva-lal, P. W. 6 Chunilal and P. W. 7 Chha-ganlal did not sav anything about subletting.
14. On the side of the defendants, the defendant Gulam Mohd. D. W./l has stated that he had taken the plot in question on lease for putting a smithery in the name of the Samiti and the board of the Samiti had also been put on the premises. He has further stated that he had not sub-let the plot to anybody. In the course of cross-examination, he has stated that he himself had executed the rent-note and that there are 18 members of the Samiti which is a registered cooperative society and further that there are other members also in the Samiti besides himself and the members of his family. D. W./4 Khalil Ahmed has stated that he is a member of the Samiti and that the Samiti had been carrying on its work on the plot in question for the last eleven years, i. e. ever since the Samiti was constituted. This is all the evidence regarding sub-letting led by the parties.
15. The only reasonable inference which can be drawn from this evidence is that since 1962 when the plot in question is alleged to have been leased out to the defendant Gulam Mohd. the business of the Samiti is being carried on in the premises. It further appears to me that the rent was also being paid on behalf of the Samiti. The three rent-receipts Exhibits A/7 to A/9 dated 1-12-1962. 8-2-1962 and 15-3-1962 respectively, which were put in evidence by the defendants and admitted by the plaintiffs, clearly go to show that the rent was being paid on behalf of the Samiti. All these rent-receipts are signed by Samasuddin, father of Gulam Mohd. in the capacity of Manager O;oLFkkid and also by the deceased plaintiff Kishanlal landlord. A few more rent-receipts of this nature have been put on the record in this Court for which an application has been made under Order 41, Rule 27, Civil P. C. for admitting them in evidence. However. I do not consider it necessary to admit those receipts in evidence. Suffice it to say that the three receipts Exhibits A/7 to A/9, which pertain to a period soon after the premises were let out, leave no manner of doubt that it was very well known to the plaintiff-landlord that the premises had been taken on rent by Gulam Mohd. for the purpose of running the smithery of the Samiti and that the rent was also being paid by the Samiti from the very inception of the tenancy, that is, 1-2-1962. At this stage, it may not be out of place to point out that it is not the "plaintiffs' case that the sub-letting took place in the month of December 1962 and prior to that, rent was paid by the defendant Gulam Mohd. in his individual capacity. It appears that Gulam Mohd. executed the rent-note and took the premises on rent as a member of the Samiti and not for his own individual business. It is true that there is no indication in the rent-note that it was being executed by Gulam Mohd. on behalf of the Samiti but there is a clear averment in para. No. 6 of the written statement that he had taken the premises on lease for the Samiti and that the rent was always Paid by the Samiti. This plea is amply supported by the evidence produced by the parties to which I have referred above. The learned Additional Civil Judge has not addressed himself to this aspect of the case at all while coming to the finding that sub-letting was established. It is true that the defendant has taken the plea that no notice to the Samiti was necessary, but from this plea it cannot be presumed that he had sub-let the premises to the Samiti. All that can be said is that the premises were taken for the Samiti by Gulam Mohd. though he did not mention this fact in the rent-note. However, omission to mention this fact in the rent-note cannot lead to the conclusion, in the circumstances of the case that Gulam Mohammad had sub-let the premises to the Samiti. Thus, there is no evidence of sub-letting.
16. In view of the foregoing discussion, there is no escape from the conclusion that the plaintiff's have failed to prove that at any point of time the defendant Gulam Mohd. had sub-let the premises in question to the Samiti.
17. Consequently, I allow this appeal, set aside the judgment and decree by the learned Additional Civil Judge. Udai-pur dated 12th February, 1974 and dismiss the suit. In the circumstances of the case, I leave the parties to bear their own costs throughout.
18. Learned counsel for the respondents prays for certifying the case to be a fit one for appeal under Section 18 (2) of the Raiasthan High Court Ordinance. Leave is refused.