Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1646(M/S) of 2010 Akaram Ali S/o Sri Sharif Khan -Petitioner. Versus Rajendra Singh Negi and others - Respondents. Mr. Arvind Vashist, Advocate for the petitioner. Mr. Siddharth Singh along with Ms. Neelima Mishra, holding brief of Mr. Ramji Srivastava, Advocate for respondents. (Hon’ble B.S. Verma, J.) By means of this petition the petitioner has sought a writ, order or direction in the nature of certiorari quashing the judgment and decree dated 31.8.2010 passed by Judge Small Cause Court/A.D.J./F.T.C.-I, Dehradun in SCC Revision No. 31 of 2010, Akaram Ali Vs. Rajendra Singh Negi and others and judgment and decree dated 19-5-2010 passed by 5th Additional Civil Judge (Senior Division), Dehradun in SCC Suit No. 5 of 2004, Rajendra Singh Negi Vs. Jahid Khan and another. Briefly stated the facts, giving rise to this writ petition, are that the respondents 1 and 2 filed suit against Jahid Khan (deceased) represented by legal heirs respondents 3 to 7 and against the petitioner Akaram Ali for eviction, recovery of arrears of rent and damages, alleging therein that they are owners of disputed property (Khokha), inherited by them from their father. Jahid Khan was tenant in possession of the said Khokha on a month of Rs. 100/-. The tenant Jahid Khan without the written consent of the plaintiffs or the District Magistrate, transferred the property to defendant/ petitioner Akaram, whereas Akaram is not family member of Jahid Khan. It is further case of the plaintiffs/respondents 1 and 2 that Jahid Khan, despite repeated demands, did not pay rent of disputed property since 1.1.2001. Plaintiffs also served notice dated 17.7.2003 to Jahid Khan, but despite receipt of notice the tenant neither vacated the premises nor pay rent and during pendency of suit tenant Jahid Khan has died and his legal representatives defendants 1/1 to 1/5 were substituted. 2 The defendant/tenant Jahid Khan contested the suit by filing written statement and denied most of the contents of the plaint. In additional pleas it was admitted that he had transferred part of disputed property to defendant Akaram in brotherhood, but he does not receive any rent from him. It was also admitted that he had not obtained permission for this transfer from the landlord or any authority. The defendant/tenant also alleged that he wants to vacate the disputed property. The defendant No.2/petitioner also filed written statement and denied most of the contents of plaint. In additional pleas it was alleged that he had taken the disputed property on rent from Suresh Singh Negi, father of plaintiffs on 7.4.1965 on a monthly rent of Rs. 100/- and the rent of the property was being received by Suresh Singh Negi. He further alleged that defendant No.1 Jahid Khan never remained tenant in disputed property and he has no concern with the same. Defendant Akaram has electric connection in his name on the disputed property. The plaintiffs have never issued receipt of rent. He had deposited rent in court in Misc. Case No. 51/2002 Akaram Vs. Rajendra Singh Negi under the provision of Section 30 of U.P. Act No. 13 of 1972. The plaintiffs are trying to evict him from the property in suit. He had also filed O.S. No. 12/2003 for permanent injunction in which there is order of temporary injunction in his favour. As the defendant has deposited the rent in court on the first day of hearing of suit, hence he is entitled to get benefit of Section 20(4) of the Act. On the basis of pleading of parties the trial court framed issues in the suit. Thereafter, parties led evidence in support of their case. The learned 5th Additional Civil Judge( S.D.) Dehradun, after hearing parties and considering entire evidence on record, decreed the suit of the plaintiffs/respondents 1 and 2, against the defendant No.1 Jahid for eviction, recovery of arrears of rent, and damages for use and occupation of the property in suit, and directed that the defendants shall hand over the possession of property to plaintiffs within three months and they shall also be entitled to get a sum of Rs. 3166/- as arrears of rent and Rs. 100/- per month as damages for use and 3 occupation of property from 20-8-2003 to the date of handing over the possession, from defendant No.1 and his legal representatives. Feeling aggrieved by the above judgment and decree the petitioner filed SCC Revision No.31/2010 before Judge Small Cause Court/Addl. District Judge/ I F.T.C. Dehradun, who vide impugned judgment dated 31.8.2010, dismissed the same. Now being aggrieved by the judgments and decrees passed by courts below this writ petition has been preferred. The petitioner has filed the writ petition on the grounds that courts below failed to consider the fact that the petitioner in support of his case has adduced overwhelming evidence in the form of electricity bills and shop registration certificate of the year 1977-78 but the lower court has recorded a wrong find that the petitioner cannot be assumed as tenant on the basis of these documents, as he has neither receipts of rent nor permission letter of District Magistrate. The petitioner has occupied the property on rent from the father of plaintiffs/respondents 1 and 2 and defendant Jahid Khan had no concern with same. The suit was filed in collusion of defendant Jahid Khan for evicting the petitioner. The courts below have illegally held the petitioner sub- tenant in the property in dispute. The petitioner is tenant in the property from 7.4.1965 and paid rent till the year 2001. Receipts of rent were not issued to the petitioner therefore he deposited the rent U/S 30 of the Act in Misc. Case No. 51 of 2002 and further on the first date of hearing he deposited the entire rent. It is also alleged that if it is assumed that he was inducted as sub-tenant in 1965 the landlord continued to accept rent from him and to treat him as tenant and therefore the landlord is stopped from denying tenancy after 35 years. The respondents 1 and 2/plaintiffs filed counter affidavit and alleged that both the courts below have recorded categorical findings based on cogent evidence that the original tenant Jahid had sublet the property in question to petitioner, therefore petitioner being subtenant is not entitled to any relief. It is further alleged in the counter affidavit that petitioner is not tenant hence benefit as provided under Section 20(4) of the Act cannot be extended to him and the benefit can only be extended to original tenant. 4 The petitioner also filed rejoinder affidavit and filed copies of demand notice dated 28.5.1992, licence dated 9.11.1984, licence dated 20.7.1993, licence dated 29.6.1991, receipt no. 64 dated 29.12.1984, receipt issued by Zila Parishad dated 14.12.1977 and rent receipt issued by Zila Parishad for the year 1977-78, vide Annexure R.A.1, copy of affidavit of his examination in chief and cross examination- Annexure R.A.2 and copy of affidavit of Sudhir Thapa regarding his examination in chief and cross examination as Annexure R.A.3. I have heard learned counsel for parties and perused the entire material on record. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 of the Constitution of India is limited. This court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or revluate 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 Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 has held that “On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has 5 been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” In the above premises, it has only to be examined whether the courts below have committed any manifest error of law or the jurisdictional error or has based its findings without any evidence. Learned counsel for the petitioner has made a submission that the petitioner is a tenant in property in dispute. He has occupied the property from Suresh Singh Negi, father of plaintiffs on 7.4.1965 on a monthly rent of Rs. 100/-, the defendant Jahid Khan was not tenant and he had no concern with the property in suit; landlord’s evidence does not establish sub-tenancy, therefore, eviction on the ground of sub-letting cannot be ordered. In support of his contention learned counsel has cited before me the case of Smt. Laxmi alias Anandi and others vs. C. Setharama Nagarkar, reported in AIR 1996 Supreme Court 268. On the other hand learned counsel appearing on behalf of respondents/plaintiffs has submitted that Jahid Khan was the tenant on property in dispute and he sub-let part of property to petitioner in brotherhood, he did not take rent from petitioner and this fact came to their knowledge in the year 2001 when some dispute took place and after the death of Jahid his sons turned out the petitioner from the property. Learned counsel also submitted that prior to creating sub- tenancy the original tenant Jahid did not take any written permission of landlord or District Magistrate, therefore, the sub-tenancy was illegal. In support of above submission learned counsel has cited before me the case of Vinay Kishore Punamchand Mundhada and another V s. Shri Bhumi Kalpataru and others, reported in (2010) 3 Supreme Court Cases (Civ) 625. Perusal of pleading of parties shows that defendant No.1 Jahid Khan filed written statement before the trial court and admitted that he was tenant in property in dispute and without the written consent of landlord or District Magistrate, Dehradun he had transferred the property to defendant No.2/petitioner, who was not member of his family. He also admitted this fact that he was in arrears of rent of Rs. 3,166/- since 1.1.2001 to 19.8.2003 and Rs. 596/- since 20-8-2003 to 6 15-2-2004. The plaintiffs have established the above facts by adducing evidence. P.W.1 Shailendra Singh Negi and P.W.2, Rajendra Singh Negi have further alleged that the fact of sub-letting the property came to their knowledge in 2001 when there arose some dispute. The petitioner/defendant No.2, in support of his case filed copies of demand notice, licenses etc vide Annexure R.A.-1. These documents show that demand of tax and licence fee to run welding business was made from the petitioner by Zila Parishad. These documents were also filed before the trial court and to prove them Kapoot Chand, Tax Officer, Zila Panchayat, Dehradun, was got examined. This witness has simply said that these documents were issued from his office. He has further stated that when license is issued then they do not make inspection of the site. Sudhir Thapa was examined by petitioner. He has deposed that he is working with Akaram Ali. The aforesaid evidence on behalf of petitioner, simply shows that Akaram was having Welding Workshop. However, the same does not prove this fact that in fact the petitioner was not a sub- tenant but he was original tenant in suit property. Both the courts below have recorded a categorical finding that the evidence adduced by defendant No.1 does not in any way establish this fact that he was the original tenant of the property in dispute. I do not find any perversity in the above concurrent finding of fact arrived at by both the courts below. In the case of Smt. Laxmi alias Anandi and others vs. C. Setharama Nagarkar, reported in AIR 1996 Supreme Court 268, cited by learned counsel for petitioner, the Hon’ble Apex Court has held that where landlord’s evidence does not establish sub-tenancy, there was no finding as to when sub-tenancy was created, the eviction on the ground of sub-letting cannot be ordered. In my view the facts of above cited case do not apply to the facts of the case in hand. In the above cited case the landlord’s evidence in examination-in-chief was that the sub-tenancy had been created by opponents 1 to 3 whereas the findings were that it had been created by the original tenant. However, in the instant case it is the specific case of landlord that the original tenant had sub-let the 7 property to petitioner without the permission of landlord or the District Magistrate and this illegal sub-letting was admitted by the original tenant. So far as the fact that when the sub-letting was created, according to plaintiffs/respondents 1 and 2 earlier their father used to take rent of disputed property and after his death Rajendra Singh was taking rent from the tenant and when there was some dispute in the year 2001, then it came to their knowledge that Jahid had sub-let the property to Akaram illegally. The courts below also recorded a categorical finding that plaintiffs also proved the original tenancy of Jahid Khan by filing counterfoil of receipts of rent issued by the father of plaintiffs in favour of Jahid Khan defendant No.1. In this case the original tenant had transferred the premises to sub- tenant by secret arrangement and no monetary consideration was paid to the tenant as has been admitted by the original tenant, therefore, this fact cannot be proved by affirmative evidence that when the sub- tenancy was created. The Hon’ble Apex Court in the case of Vinay Kishore Punamchand Mundhada and another V s. Shri Bhumi Kalpataru and others, reported in (2010) 3 Supreme Court Cases (Civ) 625, cited on behalf of respondents/plaintiffs, has observed as under:- “18. It is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of the scene rather, such arrangement whereby and where-under the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property. 19. It would be impossible for the landlord to prove, by direct evidence, the arrangement between the tenant and sub-tenant. It would not be possible to establish by direct evidence as to 8 whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. Such arrangement which may have been made secretly, cannot be proved by affirmative evidence and in such circumstances, the court is required to draw its own inference upon the facts of the case proved at the enquiry. Delivery of exclusive possession by the tenant to a stranger to the landlord and without their prior permission of the landlord is one dominant factor based on which the court could infer as to whether the premises were sub-let. Therefore, I hold that both the courts below have recorded its finding on proper appraisal of evidence on the point of creating illegal sub-tenancy by original tenant Jahid Khan in favour of petitioner Akaram, holding that Jahid Khan was original tenant in premises in dispute and Akaram was not tenant and illegal sub- tenancy was created in his favour by original tenant Jahid. Learned counsel for the petitioner also argued that if it is presumed that the disputed property was illegally sub-let to petitioner by Jahid Khan, then the landlord would not have waited to evict the petitioner for such a long period, therefore, the case in hand cannot be a case of sub-letting and the findings recorded by courts below are erroneous, absurd and misreading of evidence. Emphasis has been given to the case of Jagan Nath Vs. Durga Dutt, reported in 2000(2) CIVIL COURT CASES 294 ( P & H). I have gone through the above cited case. In para-15 it has been observed as under:- “The facts on the record reveal that the petitioners have been in possession for long. In the entries of the property assessment tax from the year 1966 onward. Jagan Nath is shown to be in occupation of the suit premises. This clearly shows that the petitioners have been in possession for long. Ordinarily, the landlord will not wait for such a long time, particularly when a third person is in occupation. There is no further material on the record that from the year 1966 onwards the alleged tenant, i.e. Hans Raj had been working or carrying on business in the suit property. It only strengthens the contention that it was a 9 paper transaction that Exhibit AW 4/1 was executed. It was not to be acted upon. Consequently, the finding of the learned Rent Controller and the learned Appellate authority cannot be sustained. These findings clearly show that the findings arrived at by the authorities under Act were erroneous. It is a legal infirmity. Thus this court must interfere.” In the case in hand it is amply proved that Jahid Khan was original tenant and he has admitted this fact that in brotherhood he had transferred the part of property to Akaram. It has also come in evidence that Akaram was servant of Jahid Khan and when some dispute arose, then this fact came to the notice of landlord in 2001 that the property had been sub-let to Akaram, therefore, in view of the above admitted facts, it is immaterial that why the landlord waited for long. Further case of plaintiffs is that the defendant No.1 did not pay rent from 1.1.2001 and they made repeated demands. Thereafter notice was served to defendant No.1 and then suit was instituted in February 2004. In the case ‘Jagan Nath Vs. Durga Dutt’ (supra) the landlord waited for a long period of 34 years, therefore, the facts of the above cited case do not apply to the facts of the case in hand. In the case of Dev Kumar (Died) through LRs. V. Smt. Swaran Lata and others, reported in AIR Supreme Court 510,cited on behalf of petitioner the Hon’ble Apex Court has dealt with the question of sub-letting. The relevant paras are reproduced hereunder:- “9. Coming to the second question the expression ‘sub- letting’ has not been defined in the Act. The conclusion on the question of sub-letting is a conclusion on a question of law derived from the findings on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. As to what is the true meaning of expression ‘sub-letting’, this court considered the same in the case of Jagdish Prasad v. Angoori Devi (1994) 3 SCR 216: (AIR 1983 SC 1447), in an eviction proceeding under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. The Court held that merely from the presence of person other than the tenant in the shop, subletting cannot be presumed and as long as control over the premises is kept by 10 the tenant and the business run in the premises of the tenant, subletting flowing from the presence of the person other than the tenant in the shop cannot be assumed. It was further held that in application for eviction of a tenant from a shop which is based on the allegations that the premises has been sublet, the allegation has to be proved. The question of sub-letting was considered by this court in the case of M/s. Shalimar Tar Products Ltd. v. H.C. Sharma, (1988) 1 SCR 1023: (AIR 1988 SC 1445), and it was held that in order to construe subletting there must be parting of legal possession of the lessee and parting of legal possession means, ‘possession with the right to include and also right to exclude others. 10. In the case of Smt. Rajbir Kaur v. M/s. S. Chokosiri & Co. (1982(2) SCR (Suppl)310 (supra) this court considered the question of subletting and held that the burden of making a case of subletting is on the landlady. It was also held that the transaction of subletting in the guise of licenses are in their very nature clandestine arrangements between the tenant and the sub-tenant and it would be difficult to get direct evidence on the same. If exclusive possession of the alleged sub-tenant is established then it may not be impermissible for the court to draw an inference that the transaction was entered into with mandatory consideration in mind.” In the above cited appeal the question before the Hon’ble Apex Court was whether the landlady, respondent No.1, has established her case of subletting by the tenant and further whether the conclusion of the High Court thereon is at all sustainable in law?. The case of respondent No.1 in this context was that respondents 2 to 4 have been given the disputed premises where they are transacting their business in their name and style Ram Saran Rattan Chand. The case of tenant, on the other hand, was that along with his own business, he was also transacting business as commission agent of M/s. Ram Saran Bhola Nath. The only evidence led by landlady was of power attorney holder. The High Court, however, has relied upon the evidence of the local Commissioner and his report. The report of the Commissioner merely indicated that on a particular day the Commissioner went to 11 the disputed premises and purchased a piece of cloth and paid the money, the bill for which was given by the seller in the name of M/s. Ram Saran Rattan Chand, Moti Bazar. The disputed premises however was not on Moti Bazar but Pratap Bazar. The report of Commissioner further revealed that he second time went to the shop and asked for the bill-book, a bill-book was produced in the name of M/s. Ram Saran Bhola Nath having the rubber stamp having the words ‘sole selling agent Dev Kumar’, which supported the the case of tenant that he was transacting business as a commission agent of M/s. Ram Saram Bhola Nath. It was further observed that apart on the mere purchase of a piece of cloth under a bill M/s. Ram Saran Rattan Chand as indicated in the Commissioner’s report, it is difficult for any court to come to the conclusion that disputed premises was in exclusive possession of alleged sub-tenant, respondents 2 to 4. The Apex Court concluded that the landlady had utterly failed to establish the plea of subletting and the High Court erred in law in formulating its own conclusion and reversing the finding of the Appellate Authority. However, the facts of the