JUDGMENT J.S. Trivedi, J.
1. Debi Prasad and Gaya Prasad respondents filed a suit for ejectment against appellants Ram Dass and Hulasi and for recovery of arrears of rent and damages with the allegation that the disputed house originally belonged to Babu Lal and Anandi Lal under a sale deed executed in their favour on 4-8-1947 and it was subsequently purchased by the respondents from them. Ram Das was a tenant of the premises when it was purchased by the respondents. He had illegally sublet the premises to Hulasi, appellant No. 2, without obtaining consent of the landlord and it was on this ground of sub-tenancy amongst others that a decree for ejectment was sought by them against the chief-tenant as well as Hulasi. The suit was contested by Hulasi who contended that the sub-tenancy was created with the consent of Babu Lal and Anandi Lal original landlords, about 20 years ago and that the respondents had acquiesced in his occupation of the premises and did not take any steps all these years challenging the sub-tenancy from which, it was urged, consent ought to be presumed. The trial Court found that the sub-tenancy was created after coming into force of U. P. Act III of 1947, that it was not created with the consent of the landlord and on this ground decreed the suit for ejectment, arrears of rent and damages. The appellants preferred an appeal but failed before the lower appellate Court also.
2. I have heard Sri S. N. Misra appearing for the appellants. The only submission of the learned counsel was that the Courts were in error in holding that the sub-tenancy was created without consent of the landlord and it was submitted that consent ought to have been presumed from the conduct of the respondents in acquiescing in the occupation of Hulasi for long many years and in not taking any steps for his eviction. To my mind, there is no authority for the proposition that consent of the landlord within the meaning of Section 3 (e) of U. P. Act III of 1947 should be presumed or inferred from the landlord's failure to take the earliest steps for eviction of a subtenant who occupied under an illegal subtenancy. If the landlord does not take any early steps to secure eviction of the chief tenant and the sub-tenant on the ground of illegal sub-tenancy it may be due to laches and not necessarily acquiescence. Indeed even subsequent acquiescence will not cure the original-illegality arising from failure to obtain the landlord's consent for sub-tenancy. Failure of the landlord to take early steps for eviction of the chief tenant on the ground of illegal sub-tenancy cannot also be treated as amounting to condonation or waiver of the initial illegality. Indeed a presumption of waiver would be negatived by his conduct in eventually suing for eviction of the chief tenant and the sub-tenant on the ground of illegal subtenancy. In any case, the law did not permit such waiver.
Therefore, this ground continues to be available to the landlord notwithstanding that he had not availed of this ground for a long time after coming into force of U. P. Act III of 1947. I am unable to accept the argument that consent in subtenancy must be presumed from the landlord's failure or inaction for a long time in the matter of steps for securing eviction of the chief tenant and the subtenant on the ground of illegal subletting. As this is the only ground taken in the appeal it must fail.
3. The appeal is accordingly dismissed with costs to the respondents. The appellants are granted four months time to vacate the premises failing which the respondents shall be entitled to secure their eviction on the execution side.