Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 7450 of 2001 (Old No.9010 of 1984) Smt. Hiroo Bisht. … Petitioner. Versus The District Judge Almora and others. … Respondents. Mr. B.C.Pande, Senior Advocate with Mr. R.C.Upadhyay, Advocate, learned counsel for the petitioner. Mr. Sharad Sharma, Senior Advocate with Mr. Pramod Belwal, Advocate, learned counsel for the respondent Nos. 4/1 to 4/4. Date July 14, 2011. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and decree dated 6-5-1981 passed by Judge Small Causes Court, Almora (for short J.S.C.C.) (Annexure 7 to the petition) and the judgment and order dated 12-4-1984 passed by the District Judge Almora in the revision. By the judgment and decree dated 6- 5-1981, the learned J.S.C.C. has dismissed the suit of the plaintiff- petitioner for eviction and recovery of arrears of rent and damages. By the order dated 12-4-1984, the revision preferred against the judgment and decree dated 6-5-1981 has been dismissed. Brief facts giving rise to the present writ petition, according to the petitioner, are that the petitioner-plaintiff Smt. Hiroo Bisht instituted a suit bearing S.C.C.Suit No. 10 of 1980 against two defendants Raghunath Verma and Abdul Gafoor Khan (respondent nos. 3 and 4 herein) in the court of J.S.C.C./Munsif Almora for their ejectment from the shop in suit and for recovery of arrears of rent and damages as stated in the plaint. According to the petitioner-plaintiff, she is the landlord of the shop in suit of which full particulars are given in the plaint; that the defendant no.1 (respondent no. 3 herein) is a tenant in the shop in suit @ Rs. 40/- per month; that the defendant no.2 (respondent no. 4 herein) has been doing business of readymade garments therein; that the defendant no.1 made the plaintiff-petitioner understand that the 2 defendant no. 2 is merely his servant and the business belongs to defendant no.1 and that the defendant no. 1 has been payment rent upto 30-9-1979. The plaintiff further stated that for some time past, the defendant no. 2 has put up the sign board of ‘Mumtaz Garments’ in the shop in suit and on enquiry it came to light that the said business of readymade clothes actually belongs to the defendant no. 2 and that defendant no. 1 has nothing to do with the said business. Thus the defendant no. 1 had sublet the shop in suit to defendant no. 2 without any legal right, consent or permission of the plaintiff-landlord. The petitioner-plaintiff served a notice dated 16-11-1979 under Section 106 of the Transfer of Property Act on defendant no.1 determining his tenancy and defendant no.2 for being in illegal occupation of the same. The defendant nos. 1 and 2 in reply claimed themselves to be the tenants in their own right. In June 1980, the plaintiff learnt that the defendant no. 2 had deposited amount of Rs. 360/- on 22-3-1980 in the bank account of the plaintiff without any right; that the plaintiff sent a notice to defendant no.2 and thereafter on receiving a wrong reply of the said notice refunded Rs. 360/- through money order, which was refused by the defendant no.2 to accept. As such, both the defendants are liable for eviction from the shop in suit and the defendant no. 1 is also liable for payment of arrears of rent and damages as claimed in the suit. The defendant no.1 resisted the suit and filed his written statement admitting the relationship of landlord and tenant and the monthly rent of the shop in suit being Rs. 40/-. He admitted receipt of the notice and asserted that he had deposited the rent upto 30-8-1980 and contested the suit mainly on the ground that he has been a tenant of the shop in suit for the last 30 years; that the shop in suit is governed by provisions of the U.P.Act No. 13 of 1972; that the notice under Section 106 of the Transfer of Property Act is illegal and invalid; that the defendant no. 2 is not a sub-tenant rather the two defendants had started a partnership business in the shop in suit in 1954. It is also asserted that the said partnership had been accepted by the plaintiff-petitioner and, 3 therefore, both the defendants have become tenants and that the defendant no.2 as partner of defendant no.1 in the partnership business is within the knowledge of the petitioner and her predecessor-in-title; that the plaintiff has been accepting the rent from the defendant no.2 without any objection. It is also asserted that the plaintiff has been residing in the upper storey of the shop in suit and she wants to let out the shop to some one else after evicting the defendants. The defendant no.2 filed his separate written statement and contested the suit. He admitted the plaintiff as landlord of the shop in suit, the rent of Rs.40/- per month and also admitted the notices having been received by him. The main ground of challenge raised in the written statement are that he had rightly deposited Rs. 360/- in the plaintiff’s account and that he is not a sub-tenant. The jurisdiction of the court has been questioned. It has been asserted that the defendant no. 2 has been doing partnership business with defendant no.1 since 1954 and that the tenancy was agreed upon between the plaintiff and the two defendant-tenants, but the rent was being paid only in the name of defendant no.1 and the defendant no. 2 has been admitted as joint tenant with defendant no.1 by the plaintiff-landlord; that the rent receipts had been issued only in the name of defendant no.1 although defendant no.2 used to pay the rent and some of the rent receipts had been issued in the name of defendant no.2 also and that the rent had been received by the predecessor of the plaintiff from defendant no.2 without any objection. Defendant no. 2 further asserted that in any case, if any sub-letting is established, since the defendant no. 2 is in occupation of the shop in suit and doing business in the same much prior to 1972 and that too within the knowledge of the plaintiff and without any objection, the said subletting has become legalized and regularized being with the consent of the landlord-petitioner. The amount of Rs. 360/- had been deposited as per instruction of the plaintiff; that the suit is barred by limitation and that the actually the owner of the shop in suit is Mahendra Hari Singh, the husband of the plaintiff and as 4 such the notice under Section 106 of the Transfer of Property Act is illegal and invalid. The learned J.S.C.C. framed as many as six issues on the pleadings of the parties, and after recording evidence and hearing the parties, he found that the defendant nos. 1 and 2 had started partnership business in the shop in suit in 1954 with the permission of the then landlord Bhawan Singh and thus both the defendants became the tenant of the said Bhawan Singh. The learned J.S.C.C. also held that the defendant no.1 has not sublet the shop in the said business and that both the defendant nos. 1 and 2 are partners in the said business and therefore are the tenants of the landlord. It has also been held that the landlady–plaintiff or her mother-in-law or her husband had knowledge much before 1972 that the defendant no. 2 has been doing business in the shop in suit and as such defendant no. 2 is not a sub-tenant. It has also been held that the suit is not barred by limitation and that the same is not bad for non-joinder of any necessary party. With these findings, the learned J.S.C.C. dismissed the suit by judgment and decree dated 6-5-1981. Aggrieved by the said order, the plaintiff-petitioner filed revision under Section 25 of the Act. The revisional court after hearing both the parties did not find favour with the plaintiff- revisionist and dismissed the revision by a detailed judgment and order dated 12-4-1984. Aggrieved by the judgment and order dated 12-4-1984, the plaintiff-petitioner has filed the present writ petition mainly on the ground that the revisional court has wrongly held that the question of fact cannot be looked into by the revisional court; that the misreading of evidence is no ground for interference under Section 25 of the Act. It has also been contended that the two courts below failed to appreciate the fact that the partnership between defendant nos. 1 and 2 was without the consent of the petitioner-plaintiff and the two courts below lost sight of the fact that the shop in question was in fact sublet to the respondent no.4. 5 Counter affidavit has been filed on behalf of the respondent no.4 (defendant no.2). It has been stated by the respondent no. 4 that the respondent no.3-Raghunath Verma and the respondent no. 4 are the tenants of the shop in question and both of them jointly started the business of garment shop from the very beginning with the consent and knowledge of its previous owner- landlord. It has been denied that the shop in question has been sublet to the deponent-respondent no.4. It is also stated that the rent of the shop was being paid to its previous owner and landlord and thereafter the rent was paid to the petitioner and when she refused to accept the rent and give rent receipts, the rent is being deposited in the court. It is also stated that the rent amounting to Rs. 360/- was deposited in the account of the petitioner as per instruction of the plaintiff-petitioner. It is also stated that the theory of subletting as set up by the plaintiff-petitioner has not been established before the courts below, therefore, the suit of the plaintiff-petitioner has rightly been dismissed by the trial court and the revision has been rightly dismissed. The petitioner has filed supplementary affidavit and along with the supplementary affidavit, the petitioner has annexed photocopy of the registered sale deed dated 27-6-1941 to show that the Board of Foreign Missions of the Methodist Church had sold the property mentioned in the sale deed to Mrs. Govindi Rani Bisht, wife of Rai Sahib Dr. Hari Singh Bisht. The petitioner also filed another supplementary affidavit and along with the same, the petitioner has annexed copies of assessment register of Nagar Palika for the years 1973, 1974 and from 1979 to 1984 as Annexure SA-1 and SA-2 to the supplementary affidavit. Both these affidavits shall be dealt with in the latter part of the judgment as and when required. I have heard learned counsel for the parties and perused the record. It is pertinent to mention that in this writ petition, the petitioner had arrayed Raghunath Verma, the tenant as respondent no. 3. The respondent no. 3 had died during the pendency of the 6 writ petition. His legal heirs Pradeep Verma and Annu Verma have been substituted as respondent no. 3/1 and 3/2 to the petition. Notices were sent to them through registered post by the Registry but the undelivered registered envelopes were not received back even after expiry of the period of 30 days, therefore, the service was held sufficient upon them. No counter affidavit has been filed either by the respondent no.3 or by his legal heirs respondent nos. 3/1 and 3/2 after his death. At the outset, it may be mentioned that this Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. The power under Article 227 of the Constitution of India is required to be exercised most sparingly and only in appropriate case in order to keep the subordinate Court and inferior tribunals within the limits of law. The learned counsel for the petitioner has contended that the positive case of the plaintiff-petitioner is that the shop in question was let out only to the respondent no.3-Raghuvir Verma (the defendant no.1 in the suit), who had later on sublet the shop to his servant, who has been arrayed as respondent no.4 herein. Learned counsel for the petitioner has vehemently argued that the learned J.S.C.C. has wrongly shifted the burden of the defendants to establish that both the defendants were joint tenants in the shop in question because the plea was taken by the defendants that the partnership business was run by them with the consent of the landlord. Learned counsel for the petitioner has also contended that the finding recorded by the learned J.S.C.C. on Issue no. 2 is perverse and the learned J.S.C.C. has committed a manifest error of law by misreading the evidence and in holding that the shop in question was taken on rent from the landlord Bhawan Singh since before 1954 and that in the year 1954, the defendant no. 1 inducted 7 the defendant no. 2 as partnership in the shop in question by the consent of the landlord Bhawan Singh. Learned counsel for the petitioner has also contended that subletting is prohibited under the provisions of the U.P. Act No. 13 of 1972 as well as in the old Act i.e. U.P. Act No. 3 of 1947(for short the Old Act). Learned counsel for the petitioner has argued that under Section 7 of the old Act, subletting without the consent of the landlord is prohibited and Rule 7 of the Rules framed under the old Act requires written consent for subletting. Both the courts below have committed a manifest error of law in ignoring the fact that exclusive possession of respondent no.4 was established by oral as well as documentary evidence and that he has been doing business exclusively. The findings recorded by the two courts below to the contrary are perverse. Learned counsel for the petitioner further argued that the two courts below have recorded their findings on inadmissible evidence and the document, paper no. 154-C, containing the terms of contract between the landlord and the tenant Raghunath Verma has not been considered, though the document is more than 20 years old and should have been admitted in evidence. Learned counsel for the petitioner further argued that the finding of the trial court/J.S.C.C. that Bhawan Singh was the previous landlord is against the record and has wrongly ignored that the registration of the shop in dispute was in the name of Abdul Gaffur Khan alone for the year 1964-65 and the document Ka-3 has been wrongly ignored. The document Ka-3 proved by the witness of the defendants, namely Tara Dutt who has been examined as D.W.2 supported the case of the petitioner-landlord that Abdul Gaffur Khan had been sublet the disputed shop and that there was no partnership business in the names of defendant nos. 1 and 2 both registered with the Sales Tax Department. In support of his contention, the learned counsel for the petitioners have relied upon a Division Bench judgment of the Allahabad High Court in the case of Radha Kishan Vs. Data Ram, reported in 1961, A.L.J., Page 827, wherein the provision of Section 3(1)(e) of the U.P.(Temporary)Control of Rent and 8 Eviction, Act, 1947 were considered. It has been observed by the Allahabad High Court that admission of another partner to joint possession of shop may amount to sub-letting and it has been held that when defendant No.1 took defendant No. 2 as a partner his act amounted to the subletting of the shop even though both the defendants continued in joint possession and no exclusive possession was given to defendant No.2. The transaction must be deemed to be subletting within the meaning which must be given to that phrase used in Cl.(e) of sub-section (1) of Section 3 of the Old Act. On the other hand, the learned counsel for the respondent no.4 has vehemently argued that the partnership deed which was executed on 22-4-1966 was executed between the two respondents creating a partnership for running the business in the shop in question. Learned counsel for the respondent no. 4 has submitted that the rent was being paid by the respondent no.4 but when the petitioner refused to accept the rent and give rent receipt, the rent was deposited in the Court upto June 1997. Learned counsel has made a reference to the document which has been annexed as Annexure C.A.-I to the counter affidavit of the respondent no.1. Learned counsel for the respondent no.4 further submitted that the partnership deed is a document more than 20 years old, therefore, the same was not required to be proved by oral evidence and the same is admissible in evidence. In reply, the learned counsel for the petitioner has argued that the defendant no.2 (respondent no.4) has made the partnership deed as the basis of his defence in the written statement, which is not permissible in view of the provisions of Section 90A of the Indian Evidence Act, therefore, no presumption of the Court can be gathered in favour of the defendants. Learned counsel for the petitioner further submitted that the story of partnership as set up by the defendant no.2-respondent no.4 falls to the ground in view of the document-Annexure C.A.-1 to the counter affidavit, which has been relied upon by the defendant No.2-respondent no.4. Learned counsel for the petitioner has pointed out that the rent, 9 which has been tendered by the defendant no.2 by Challan dated 17-3-1997 amounting to Rs. 480/- has been deposited in the name of Abdul Gafoor Khan, Mumtaz Garments, Lala Bazar, Almora. The contention of the learned counsel for the petitioner is that no such partnership exited in the name of the depositor and there was no occasion for the respondent no.4 to have deposited the rent of Rs. 480/- from July 1996 to June 1997 in his personal capacity. The undisputed facts of the case are that the shop in question was given on rent to Sri Raghunath Verma, the defendant no.1 and not to Abdul Gafoor, the defendant no.2. Bhawan Singh, to whom the defendants claim to be previous landlord of the shop in question is the brother of the husband of the petitioner. It is also not disputed that the amount of Rs. 360/-, which was deposited into the Bank account of the petitioner by the defendant no.2 on 22-3- 1980 was sent by the petitioner to the defendant no.2 but the defendant no. 2 refused to accept the money back. Before dealing with the controversy involved in this writ petition, for a just decision of the case, a reference to certain paragraphs of the plaint and the written statements, filed by the two defendants in the suit is necessary. The petitioner has filed copy of the plaint as Annexure No. 1, copy of the written statement filed on behalf of the defendant no.1 as Annexure No. 2 and the copy of the written statement filed by defendant no. 2 as Annexure No. 3 to the writ petition. In paragraph no. 1 and 2 of the plaint, the plaintiff-petitioner has stated that she is the landlady of the double storeyed house Municipal No. 202 known as Neeraja Building at Chowk Bazar Almora and that on the ground-floor of the building in the last shop towards south, the defendant no.1 is a tenant at monthly rental of Rs. 40/-. The defendant no.1 has admitted the contents of paragraph nos. 1 and 2. The defendant no. 2 has admitted the content of paragraph no.1 and has partly admitted the contents of paragraph no.2 of the plaint. The defendant no.1 in his additional pleas has asserted that the defendant no.1 is in possession of the shop in question and 10 he has made entire investment in the business and furniture kept in the shop. He has however stated that in the year 1956, the defendants started partnership shop and the landlord admitted them as joint tenants and since 1956, the defendants are continuing as tenants in the shop in question. The defendant no.1 has not disclosed the name of the landlord who had admitted both the defendants as tenants in the alleged partnership. On the other hand, the defendant no. 2 in his additional pleas has asserted that the defendants have started partnership business in the shop in question in the year 1954 and the rent was settled by the then landlord and the rent was paid in the name of defendant no.1 which was being paid by the defendant no.2 himself. Besides, the defendant no.2 has admitted contents of paragraph 12 of the plaint wherein the plaintiff-petitioner has stated that the amount of Rs. 360/- was deposited without the consent of the plaintiff and the defendant no.2 had no authority to deposit the same in her absence. It is pertinent to note that none of the defendants in their written statement has stated anything about any other previous landlord from whom the shop in question was taken by the defendants on rent. Thus, it is admitted case of the parties that the petitioner is the landlady of the shop in question and that the shop had been given on rent of Rs. 40/- to defendant no.1. In this writ petition, the petitioner/plaintiff has annexed copy of the alleged partnership deed executed between the defendant no.1 and defendant no.2 as Annexure-4 to the writ petition. This document is admitted to the respondent no.4 Abdul Gafoor Khan in his counter affidavit. A perusal of the document (Annexure No.4) shows that between Raghunath Verma and Abdul Gafoor Khan, a partnership deed had been executed on 22-4-1966, wherein it is mentioned that under the new partnership, both of them have invested a sum of Rs. 5000/- in the business. The rent and taxes of the shop in question will be paid from the accounts of the business 11 regularly month to month and receipt thereof shall be obtained. In this partnership there is no mention that the landlord of the shop in question was ever informed of this partnership deed or that the landlord had given consent to the new partnership entered into between the parties. From a bare perusal of the plaint, it is evident that the petitioner plaintiff has claimed that the defendant no.1 alone is her tenant. The plaintiff has nowhere stated in the plaint that the defendant no.1 used to be a tenant of Bhawan Singh since before the year 1954. The learned Judge S.C.C. appears to have lost sight of the averment made in paragraph no. 3 of the written statement filed by the defendant no.1 wherein the defendant no.1 has categorically stated that he is in possession of the shop in question and whatsoever business is run in the shop, the investment has been made by the defendant No.1 and the furniture is installed by the defendant no.1. The averment made by the defendant no.1 in his written statement directly negatives the averment made in the partnership deed alleged to have been executed on 22-2-1966 between defendant no.1 and defendant no.2 that both of the defendants have invested a sum of Rs. 5000/- in the partnership business and for this reason, there was no occasion for the defendant no. 1 to say in the additional pleas that the investment has been made by him in the shop in question. It is also significant to mention here that Issue No.2 has been framed by the learned J.S.C.C. on the pleading of the defendants in the suit as under:- “Whether the defendant nos. 1 and 2 started partnership work since 1954 with the consent of the landlord and started business in the disputed shop? If so, its effect?” In this writ petition, as mentioned earlier, the petitioner has annexed copies of plaint and the written