ORDER [ENTITY], J.
1. This is a landlords petition and is directed against the judgment Dated 29-4-1995 passed by the VIth Additional District Judge, Bareilly in [CASE NUMBER] whereby it has allowed the revision and set aside the judgment and decree of the Trial Court, decreeing the suit for recovery of arrears of rent, damages and ejectment.
2. A [CASE NUMBER] was instituted in respect of a property, being municipal No. EC 14/ 138/5 (a shop), on the allegations that the defendants have unauthorisedly made certain material structural alterations therein and has sublet a portion of the said premises to M/s Seth Brothers Private Limited wherein they have permitted to carry on the business of purchase and sale of foreign liquor as also on the ground of default in payment of rent. It was alleged that the tenancy was determined by a notice dated 24-6-1985. The Trial Court decreed the suit on the finding that the defendants-tenants have sub-let the shop to M/s Seth Brothers Pvt. Ltd. and the tenancy was duly terminated. On other counts, such as, default in payment of rent and structural alterations, the Trial Court found in favour with the defendant-tenants. The revisional Court, by the impugned order, set aside the findings of the trial court on the aforesaid two points and dismissed the suit in its entirety.
3. Heard learned Counsel for the parties.
Learned counsel for the petitioners submits that the revisional Court has wrongly reversed the findings recorded by the Trial Court on the question of sub-tenancy.
4. It is not in dispute that for a period of one year, the possession of the disputed premises was delivered to M/s. Seth Brothers Pvt. Ltd. for selling foreign liquor. This fact was admitted even by the defendants-tenants, but there defence was that the foreign liquor was purchased and sold in agency. The trail court recorded a finding on subtenancy on the ground that burden was upon the tenants to establish that there has been no transfer of possession to M/s. Seth Brothers Pvt. Ltd. and he has not received any consideration or rent or damages for the use and occupation of the premises in question from M/s. Seth Brothers. The Trial Court took into consideration that the alleged agreement of tenancy was not filed by the tenants and as such, an adverse inference against them has to be drawn. Moreover, non-existence of any licence in the name of tenants belies their case that foreign liquor was sole by them from the disputed shop as an agent of M/s. Seth Brothers. On the contrary, no person can sell an excisable item without a licence issued by the Excise department. The said finding has been reversed by the revisional Court, as it proceeded to examine the issue from an angle that the burden lay upon the tenants to establish that there has been a transfer of possession of tenanted accommodation by a tenant to a third party and such third party has paid rent or some consideration for such transfer. The revisional Court was influenced by the fact that as the plaintiff-landlords stated in the deposition that they are not aware about the rate of rent allegedly paid by Seth Brothers to the defendants-tenants. This shows that the plaintiffs have failed to prove the payment of rent to the defendants by Seth Brothers. The said approach of the revisional Court has been challenged by the petitioner's counsel on two grounds. Firstly, whether a person, has sublet an accommodation, is essentially a question of fact and the said fact cannot be re-examined by a revisional Court while exercising powers under [SECTION] of the [ACT]. The scope of interference under [SECTION] of the Act is limited one. The revisional Court cannot, by re-appreciating evidence, arrive at a different conclusion, than the one arrived at by the Trial Court. Secondly, the landlords have discharged their burden by establishing that the possession was delivered to the third party, namely, M/s. Seth Brothers by the tenants-defendants and the burden shifted upon the tenants-defendants to establish as to in what capacity M/s. Seth Brothers came into occupation of the disputed shop.
5. Learned Counsel for the respondents has relied upon the following cases in support of his contention.
(1) [PRECEDENT] , wherein the Apex Court has held that the onus to prove sub tenancy is on the landlord and if he establishes parting of with possession in favour of a third party, the onus would shift to the tenant to explain. This has been followed by the Apex Court in [PRECEDENT] .
(2) [PRECEDENT]. wherein it has been held by the Apex Court that to prove sub tenancy, two ingredients namely parting with possession and some consideration there for had to be established.
(3) [PRECEDENT] Allahabad [PRECEDENT], wherein the Apex Court set aside the judgment of the High Court wherein it was held by the High Court that if sub tenancy was created by the tenant and the tenant has died then the legal heirs of the tenant and the sub tenant would not be evicted " for the sin committed by the deceased tenant". It was held that heirs would be liable for eviction even if the tenant had died.
(4) [PRECEDENT] . The Apex Court has held that in the case of sub letting the onus lies on the landlord to establish that there is transfer of right to use the tented property to the exclusion of all others during the term of lease and payment of consideration by the sub lessee to the tenant. It has been held that from a mere change in the constitution of firm an interference as to sub letting could not be drawn in the absence of further evidence adduced to establish sub letting as the premises continued to be in possession of the one of the original tenant.
6. Learned Counsel for the petitioners on the other hand, rightly placed reliance upon the case of the Apex Court. In [PRECEDENT] , it has been held as follows:
17. We are unable to appreciate the contention. As observed by this Court in [PRECEDENT] sub-tenancy or sub letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement Or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the over acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.
18. In [PRECEDENT] this Court, speaking through [ENTITY], J. (as His Lordship then was) stated : (SCC p. 43, para 59).
If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of sub-letting in the guise of licences are, in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for ligitimate inference. The burden of making good a case of sub letting is, of course, on the appellants. The burden of establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party rearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that, appellants having been forced by the Courts below to have establish exclusive possession of the ice cream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the Courts below to be unsatisfactory and unacceptable, it was not impermissible for the courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found.
19. Again in [PRECEDENT] this Court reiterated the same principle. It was observed that the burden of proof of sub letting is on the landlord but once he establishes parting of possession by the tenant to a third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that omus. it is permissible for the Court to raise an inference that such possession was for monetary consideration.
20. We are in agreement with the observations in the above cases. In our considered opinion, proof of monetary consideration by the sub tenant to the tenant is not a sine qua non to establish sub-letting.
7. In view of the above discussions, taking into consideration the fact that it is an admitted position that M/s. Seth Brothers came in the possession of the disputed shop, though for a period of one year and that there was no licence in the name of the respondents-tenants to sell foreign liquor, it was for the tenants to establish the nature of possession of M/s. Seth Brothers over the disputed shop. The tenants-respondents have failed to discharge the said burden. The revisional Court has proceeded to decide the issue little realising that a landlord is not expected to have a direct knowledge of such transaction entered by a tenant with a third party and law does not require that such payment of rent by a third party to the tenant be proved by an affirmative evidence. The Court is permitted to draw its own inference upon the facts of each case. The finding recorded by the trial Court on the question of sub-tenancy is in accordance with law and was wrongly reversed by the revisional Court, specially in the exercise of revisional jurisdiction. This point is thus decided accordingly in favour of the petitioners.
8. The next point taken by the revisional Court was that notice (Exhibit 1) under [SECTION] of the [ACT] was not validly served on the defendants-tenants. The date of notice, determining the tenancy of the defendants-tenants under [SECTION] of the [ACT], is 24-6-1985. It is stated by the defendants-tenants that the said notice was never received by them. To prove the despatch of the notice, a receipt, issued by the Postal Department, was filed which is paper No. 92 C (Exhibit-2). The said receipt purports to be dated 2-6-1985. The revisional Court has said that since the receipt is dated 2-6-1985, the contention that the notice was sent by registered post on 24-6-1985 is obviously incorrect. This point was agitated before the trial Court also. The Trial Court accepted the submission of the learned Counsel for the landlords that figure '4' of '24' could not find place in the impression of the seal due to lack of ink on figure '4' on the seal. It has been correctly submitted that the tenants want to make a mountain out of a mole-hill from the mistake of the Postal Department.
9. There appears to be absolutely no justification for sending the notice under [SECTION] of the [ACT] on 24-6-1985 and producing a postal receipt which contains a seal dated 2-6-1985. The revisional court, in the absence of figure '4' in the date 24-6-1985, concluded that the notice was not sent on 24-6 1985. The question whether there was a mistake on the part of the Postal Department due to non-inking of figure '4' of figure '24' basically lie in the realm of the appreciation of evidence. It is a matter of common knowledge that some time the rubber stamps, due to lack of proper inking, fail to put the entire impression on a paper. Even if there was some mistake on the part of the Postal Department in this regard and it has not taken due and proper care to see that the seal put by it with regard to the date of despatch is fully impressed on the document, the sender of the notice cannot be made to suffer. The trial Court preferred to believe the version of the plaintiffs-landlords in this regard, coupled with the fact the notice was also sent under certificate of posting. The said certificate of posting has been belied by the revisional Court on the ground that it is a fake document. The revisional Court has not appreciated the material on record in its right perspective. Indisputably, the notice was addressed to [ENTITY]. [ENTITY] has not come in the witness box to deny the receipt of any such notice. An adverse inference should have been drawn and was rightly drawn by the trial Court that in the absence of any denial by [ENTITY], it shall be presumed that the notice was duly received by the defendant-tenant.
10. The revisional Court, in addition to what has been stated above, has exceeded in its jurisdiction in interfering with the question of facts. On the basis of the postal receipt, the trial Court concluded that the notice was sent, on 24-6-1985, as stated by the petitioners-landlords. It was not permissible for the revisional Court to arrive at a different finding on the basis of the said document, even if, two views were possible.
11. In view of the above discussions, there is sufficient force, in the writ petition. The impugned order dated 29-4-1995, passed in [CASE NUMBER], is hereby quashed. The judgment and decree passed by the trial Court is restored back.
12. In the result, the writ petition succeeds and is allowed with costs of Rs. 2,000/ - (Rs. two thousand only).
Time upto 30-9-2007 is granted to the respondents to vacate the disputed premises, failing which it shall be open to the petitioners to execute the decree for execution and the respondents would be liable to pay future damages for the use and occupation of the accommodation of the building in question at the rate of Rs. 2,000/- per month for the period after 30-9-2007 till the date of actual delivery of possession.