ORDER
1. Kishan Chand, landlord-petitioner, letted out the shop in dispute, situated in the urban area of Gurdaspur town to Banarasi Dass and Chaman Lal, respondents Nos. 1 and 2, at a monthly rental of Rs. 40/-with effect from 1st of September, 1962, vide rent note Exhibit A-1 dated 8th of September, 1962. The landlord sought the ejectment of the tenant from the shop in dispute on the basis of non-payment of rent with effect from 1st of August, 1976, till the filing of this application i.e. 31-1-1977. He also sought the ejectment of the tenants on the ground of having parted with the possession of the shop in dispute since the year 1966 to Kasturi Lal and Roop Lal, respondents Nos. 3 and 4, without the written consent of the landlord. It is further averred that the business in the shop in dispute was carried on in the name and style of M/s. Roop Lal Kasturi Lal from 1966 to 1971 while Chaman Lal, respondent No. 1, is earning his livelihood from transporting goods on a cart and Banarsi Dass. respondent No. 2, is selling fruits and vegetables. Thus it was maintained that the original tenants have absolutely no interest in the business of kiryana being carried out in the shop in dispute by respondents No.s 3 and 4. The dilapidated condition of the shop in dispute was also stressed.
2. The respondents tendered the rent on the first date of hearing. The remaining averments of the landlord were controverted. It was alleged that respondents Nos. 1 and 2 never transferred their right of tenancy in the shop in dispute to respondents Nos. 3 and 4. On the other hand, it was averred that all the respondents are real brothers and members of the joint Hindu family. The actual control ofpremises is with respondents Nos. 1 and 2 and they are runnining business in the shop. Subsequently, the tenants were allowed to file the amended written-statement in order to plead that Roop Lal, respondent No. 4, is the karta of the joint Hindu family formed by all the respondents and thus there cannot be any sub-letting. It was, however, asserted that the actual control of the premises was with respondents Nos. 1 and 2. Another amended ground was that the present application has been filed when the tenants failed to oblige the landlord to enhance the rent of the shop to Rs. 250/- per month.
3. Tn replication, the landlord controverted the allegations in both the written-statements besides reaffirming his original averments in the application.
4. The learned Rent Controller, Gurdas-pur, vide his order dated 21-9-1978 ordered the ejectment of the tenants from the shop in dispute on the ground of sub-letting.
5. On appeal, the Appellate Authority under the East Punjab Urban Rent Restriction Act. 1949, (hereinafter referred to as 'the Act') reversed the decision of the Rent Controller by holding that the landlord had failed to prove that respondents Nos. 1 and 2 had parted with the possession of the disputed shop or that these respondents were charging any rent from respondents Nos. 3 and 4. On the other hand, it was held that all the four respondents being brothers and members of the joint Hindu family were running the business in the shop in dispute and it was not a case of subletting.
6. The landlord being aggrieved against the impugned order of the Appellate Authority has come up in revision under Section 15(5) of the Act. Mr. H.L. Sarin, the learned Senior Advocate, assisted by Shri R.L. Sarin, Advocate, contended that the Appellate Authority had failed to appraise the documentary as well as oral evidence in the right context which has resulted in miscarriage of justice and that it was a clear case for interference on the revisional side under Section 15(5) of the Act as the revisional powers of the High Court under these provisions are wider than the one under Section 115 of the Code ofCivil Procedure. He further maintained that once the landlord proves that the tenant had parted with the possession of the shop in dispute, the burden shifts on the tenant to explain in what capacity the alleged subtenants are occupying the shop in dispute.
7. Mr. K.S. Thapar, the learned counsel for the tenant-respondents, on the otherhand, maintained that this court on the revisional side cannot reappraise the evidence besides stressing that it was for the landlord to prove that the tenant had parted with the exclusive possession of the property in dispute and for valuable consideration.
8. The law is well settled on the point that revisional powers of the High Court under Section 15(5) of the Act are wider than the one under Section 115 of the Civil P.C. The decision of the Supreme Court in Moti Ram v. Suraj Shan, AIR 1960 SC 655, can be referred in this regard. In that case it was held that the High Court had jurisdiction to examine the legality or propriety of the order under revision in order to ascertain the requirement of the landlord to occupy the premises in dispute under S. 13(3)(a)(iii). This view was again reiterated by the Supreme Court in Mrs. Mohini Suraj Bhan v. Vinod Kumar Mittal, AIR 1986 SC 706. In that case, the view of the High Court that it cannot reappraise the evidence was dealt with in para 5 of the judgment as under :
'It cannot be disputed that the powers of the High Court under Section 15(5) of the Act are wide and not confined merely to examining the legality of the appellate authority's order nor are those powers akin to the revisional powers of the High Court under Section 115 of the C.P.C. Sub-section (5) of Section 15 of the Act in so far as is material states: 'The High Court may..... on the application of any aggrieved party or on its own motion call for and examine the records relating to any order..... for the purpose of satisfying itself as to the legality or propriety of such order..... and may pass such order in relation thereto as it may deem fit.' We find that it at two places in its judgment the High Court has categorically observed that it wasnot open to it to reappraise the evidence unless the finding recorded by the Appellate Authority suffered from some legal infirmity and further that even if it were to come to a different conculsion -- of course properly and reasonably -- it would not be open to it to interfere with the finding of fact recorded by the Appellate Authority on reappraisal of the evidence. It is true as was fairly pointed out by counsel for the appellant that High Court has even after making these observations itself gone into the evidence and appreciated it in a particular manner but on reading the entire judgment as a whole we feel that the approach to the main issue arising in the case and the evidence led by the parties thereon has been considerably influenced or coloured by the unwarranted inhibition which the High Court put upon the exercise of its revisional powers as aforesaid and therefore, it becomes necessary to consider the other submissions made by counsel for the appellant before us.'
9. Under these circumstances, the Supreme Court in the above referred case reappraised the evidence in coming to the conclusion that the landlady bona fide required the premises in dispute for her use and occupation and thus set aside thejudgment of the High Court and the Appellate Authority and restored the order of the Rent Controller ejecting the tenant from the premises in dispute. Thus there is absolutely no doubt that the High Court can reappraise the evidence on the point of subletting if the Appellate Authority or Rent Controller had wrongly appraised the same because the conclusion whether certain facts proved by the parties do amount to subletting the premises in dispute or transfer his rights in the lease as envisaged by Section 13(2)(ii)(a) of the Act. is a mixed question of fact and law as held by the Supreme Court in Smt. Krishnawanti v. Hans Raj, 1975 Rent CJ 164 : (AIR 1974 SC 280). This matter was dealt with in para 8 of the judgment as under :
'As to the first question whether the appellant was legally married, that was a question on which no finding was necessary in an eviction suit. It was sufficient for the Rent Court to proceed on the finding that theappellant and Sohan Singh were living as husband and wife, whether they were legally married or not. This was specifically pointed out by the Additional Rent Controller in his judgment. As regards the second question, one does not see how it is a mixed question of law and fact. In the determination of a question of fact no application of any principle of law is required in finding either the basic facts or arriving at the ultimate conclusion; is a mixed question of law and fact the ultimate conclusion has to be drawn by applying principles of law to basic findings. See Meenakshi Mills, Madurai v. Commr. of Income-tax, Madras, 1956 SCR 691 : (AIR 1957 SC 49) basic facts in the present case were (1) the appellant and Sohan Singh were living as husband and wife to the knowledge of the respondent; (2) the appellant took the lease of the shop premises from the respondent in 1959; (3) from the time of the letting a Chemist's business was carried on in the shop by Sohan Singh with the occasional help of the appellant. The question to be determined was whether in the above circumstances'it was likely that the appellant had sublet the premises to Sohan Singh. The negative answer given to it by the Rent Courts is merely the factual common sense interference which did not call for the application of any principle of law. In our view no question of law -much less a substantial question of law -- was involved in the second appeal and the learned Judge was in error in disturbing the concurrent finding of fact of the Rent Control Authorities.'
10. The question then arises whether the onus lies on the landlord to prove that the tenant had parted with the exclusive possession of the shop in dispute for a valuable consideration to the alleged sub-tenant. In this regard it is noteworthy that in cases where the tenant and alleged sub-tenant happens to be close relation or brother inter se, as in the case in hand, it is very difficult for the landlord to prove the secretive arrangement. between the brothers regarding the valuable consideration. Thus there is found logic in the argument of Mr. Sarin that once the landlord establishes the parting of exclusive possession of the premises by the tenant, the onus shiftsupon the tenant to prove the arrangement between the tenant and alleged sub-tenant as to in which capacity the sub-tenants were occupying the premises i.e. whether they were occupying as licenesees under the tenant or in the capacity of a member of the partnership concern formed by them with the tenants or simply helping their relation i.e. the tenant in running the business etc. A Division Bench of this High Court in Dr. Ram Sarup v. Smt. Savitri Devi, 1969 Rent CJ 97, has held that the onus to prove subletting shifts on the tenant if the landlord proves that the tenant had parted with the possession and actual control of the property in dispute. In para 5 of the judgment it was held as under :
'Held that, a mere use of the premises by a person alleged to be a sub-tenant would not by itself prove subletting. The crux of subletting lies in this as to who is in actual control of the premises. If the sub-tenant is in actual possession of the premises, there would be sub-letting unless an arrangement is proved whereby the sub-tenant is merely a care-taker on behalf of the tenant during the period of the absence of the tenant. Whenever a landlord proves that there has been complete parting with possession, then it is for the tenant to establish that, that parting with the possession has been under some arrangement negativing the passing of complete control of the premises to the so-called sub-tenant. If such an arrangement is alleged and is not proved, the finding must be returned in favour of the landlord.'
11. A single Bench of this Court in Dharam Chand v. Kasturi Lal, (1977) 2 Ren CJ 276, again took a similar view that the onus shifts to the tenant or sub-tenant to establish as to in what capacity the sub-tenant is in possession of the property. The landlord had discharged the onus that the tenant had exclusively parted with the possession of the rented premises.
12. Mr. Thapar, learned counsel for the tenants, relying on the decision of the Supreme Cour in Smt. Krishan Wanti's case (AIR 1974 SC 280) (supra) contended that the landlord must prove that the sub-tenant was occupying the premises for valuable consi-deration in order to make out a case of subletting. The Supreme Court in the above referred judgment had nowhere laid down that the landlord must prove that the tenant had parted with the exclusive possession of the property in dispute for valuable consideration to the sub-tenants. On the other hand while discussing that Sohan Singh alleged sub-tenant being the husband of the tenant and that they were living together and carrying on business in the shop in dispute and that Sohan Singh used to help his wife occasionally, it was held to be a case of licensee at the most. The Supreme Court referred to the decision of Associated Hotels of India Ltd., Delhi v. S. B. Sardar Ranjit Singh, (1968) 2 SCR 548 : (AIR 1968 SC 933), wherein it was held that where the landlord discharged the onus by leading evidence that the occupants were in exclusive possession of the premises for valuable consideration, it would then be for the tenant to lead the evidence. In the above referred two cases, the Supreme Court was dealing with the plea of the tenant that the sub-tenants were simply occupying the premises as licensees and not as sub-tenants. Thus the above referred observations of the Supreme Court are not attracted to the case in hand as herein the tenant has not set up a case of their two brothers being occupying the premises in dispute as licensees. On the other hand, Banarsi Dass, tenant, appearing as his own witness (RW 3) as well as other witnesses had stated that only the tenants were in possession of the property in dispute and carrying on the business there while the sub-tenants were carrying on business in front of the shop in dispute after taking some land from the Municipal Committee on Teh Bazari. Thus it can be well said that the tenants and sub-tenants who happen to be brothers inter se had not set up a case of Kasturi Lal and Roop Lal, alleged subtenants, being helping their brothers Banarsi Dass and Chaman Lal in running the business in the shop in dispute being members of the joint Hind family. The tenants failed to disclose or establish the arrangement inter se between them and the sub-tenants as to in which capacity the sub-tenants were occupying the shop in dispute and running theKaryana business therein. It is noteworthy that in their written reply, the tenants and sub-tenants had tried to set up a case that all of them are members of the joint Hindu family and that Shri Roop Lal is the Karta of the joint Hindu family. For the sake of ready reference, para No. 2 of the amended written-statement requires reproduction :
'Para No. 2(b) of the application is wrong and specifically denied. The respondents Nos. 1 and 2 never transferred this right to respondents 3 and 4, as alleged in this para of the petition. The respondents are real brothers, and Shri Rup Lal is the Karta of the joint Hindu family, and cannot be a case of subletting. The family of the respondents is also joint. The actual control of the premises is with the respondents Nos. 1 and 2. The business of the shop is run by respondents Nos. 1 and 2. The respondents 1, 2, 3 and 4 constitute joint Hindu family'.
The perusal of the above-referred averments reveals that all the respondents are silent whether respondents Nos. 3 and 4 are running business along with respondents Nos. 1 and 2 jointly in the shop in dispute and that they have not set up a specific case that the business was run in the shop in dispute by the members of the joint Hindu family including the tenants, although it is the specific case of the landlord in the application for ejectment that the business was being carried on in the shop in dispute by respondents Nos. 3 and 4 in the name of M/s. Roop Lal Kasturi Lal while respondents Nos. 1 and 2 are indulging in other business outside the shop in dispute. Under these circumstances, there is no escape but to conclude that if the evidence led by both the parties establishes that the subtenants are running the business in the shop in dispute, then it will be presumed that the tenants had parted with the exclusive possession of the shop which in turn will shift the onus on the tenants to explain as under what arrangement respondents Nos. 3 and 4, subtenants, are occupying the shop in dispute i.e. whether they are in possession of the shop as licensees under the tenant or simply running the business with the permission of the tenants. As already discussed, the tenants orsub-tenants had failed to explain or even set up a specific case in the pleadings as to in which capacity sub-tenants are occupying the shop in dispute.
13. In view of the above referred state of pleadings as well as evidence, it transpires that the Appellate Authority had not appraised the evidence of the witnesses in the right context in concluding that the landlord had failed to prove that the sub-tenants were occupying the shop in dispute for valuable consideration.
14. Now referring to the evidence led by both the parties, it transpires that the version of the landlord that the tenants have parted with the exclusive possession of the shop in dispute to sub-tenants is corroborated by the documentary evidence of unimpeachable character. Labh Singh, Shop Inspector, (AW 2) on the basis of the official record deposed that the disputed shop was registered on 9-7-1969 in the name and style of M/s. Roop Lal Kasturi Lal, Karyana merchants, Sadar Bazar, Gurdaspur, at the instance of Roop Lal, respondent No. 4. He further stated that this position continued till 27-1-1977 but on 28-1-1977, an application was received on the basis of which the name of the business concern was changed to Chaman Lal Banarsi Dass. It is noteworthy that the ejectment application was filed on 31-1-1977 i.e. after three days of the change of the name of the business concern at the instance of the tenants. The tenants must have become aware of the landlord having thought of filing an ejectment petition against them when the landlord asked them to vacate the shop in dispute as alleged in para 3 of the ejectment petition. The Appellate Authority discarded this evidence simply with the remarks that it leads us nowhere without discussing the import of entire evidence led by the landlord. Thus discarding the evidence of a witness in isolation on the ground that it is not sufficient to prove parting with the exclusive possession of the shop in dispute by the tenant is not acceptable being erroneous because this evidence coupled with the evidence of the landlord would certainly show that not only respondents Nos. 1 and 2 had parted with thepossession of the shop in dispute to respondents No. 3 and 4 but the latter also started the business in their own names and style and got in so registered with the Shop Insptector under the provisions of' the Shop Act. The conduct of the respondents in getting the name of the firm changed in the register of the Shop Inspector in the name of original tenants only three days prior to the institution of the ejectment proceedings further shows that they had become aware of the factum that carrying on business in the name and style of respondents Nos. 3 and 4 exclusively may entail their ejectment from the shop in dispute on the ground of subletting.
15. The matter does not rest here as according to Gurdarshan Singh, Record Keeper of the Municipal Committee (AW 3) in the Municipal records, Chaman Lal, respondent No. 2 (one of the tenants) had taken a licence from the Municipal Committee on 6-6-1975 for a period of one year for plying a hand cart which clearly supports the contention of Kishan Chand, landlord, that Chaman Lal was not running any business in the shop in dispute but used to sell fruits on a push cart in the open market. Kasturi Lal, respondent No. 3, obtained licence, copy Exhibit A-6, from the Municipal Committee to sell ghee on 30-5-1970. The certified copy of the licence Exhibit A-7 reveals that Roop Lal, respondent No. 4, obtained a licence for running the business of sale of ghee from the Municipal Committee on 12-3-1968. This documentary evidence in isolation is not of much consequence but when read in the context of the other evidence, it is one of the chain in the circumstantial evidence leading to the conclusion that the tenants had parted with the exclusive possession of the shop in dispute to Kasturi Lal and Roop Lal, respondents Nos. 3 and 4, especially when there is no evidence on the file that Chaman Lal Banarsi Dass, the tenants, had ever taken any licence from the Municipal Committee for running this business.
16. The evidence of Bishan Dass Gupta (AW 8) further shows that in the income-tax record, firm M/s. Roop Lal Kasturi Lal has been shown as running the business in theshop in dispute. He has produced the copy of the survey record Exhibit A-12 on the file. This witness was also examined by the respondents as R W 4 that on 6-6-1978, notice Exhibit R-2 was issued to Chamman Lal Banarsi Dass i.e. respondents Nos. 1 and 2 depicting them as members of the Hindu undivided family. During cross-examination he conceded that prior thereto, no notice was ever issued to the said firm and that the return was filed by Banarsi Dass Chamman Lal aforesaid on 31-7-1978 showing that their income was only Rs. 10,050/-. Admittedly, this notice was issued on the basis of survey conducted on 7-2-197S i.e. after the filing of the present petition on 31-1-1977. Thus there is no force in the contention of Mr. Thapar that Chamman Lal and Banarsi Dass, respondents Nos. 1 and 2, were carrying on the business in the shop in dispute as members of the joint Hindu family because once the tenant became aware of their fault, they must be so depicting before the concerned authorities.
17. In view of the above referred circumstances, the factum that Kasturi Lal, respondent No. 3 had taken some land in front of the shop in dispute on teh bazari licence Exhibit A-4 while Roop Lal, respondent No. 4, took this very land on teh bazari vide licence Exhibit A-5 would assume importance and lead to the necessary inference that only an occupant of the shop will take the space for construction of platform just in front of it and not a person having no connection with the shop in dispute. In view of the totality of the circumstances, it is not acceptable that respondents Nos. 1 and 2 were running business in the shop in dispute while respondents Nos. 3 and 4 were running business just in front of that very shop on the municipal land after taking it on teh bazari as deposed by Banarsi Dass, respondent No. 1, while appearing as R.W. 3. It is noteworthy that Kasturi Lal and Roop Lal, respondents Nos. 3 and 4, alleged sub-tenants, had not even dared to appear as witnesses in support of their case obviously for the reason that they themselves were not convinced of the truthfulness of their stand.
18. The evidence of Kashmir Singh(AW 4), clerk of the Civil Hospital, Gurdas-pur, further shows that on 9-8-1975, 24-10-1975 and 18-6-1976 samples of food were taken from Kasturi Lal, respondent No. 3. from the shop in dispute. This witness was also examined by the respondents as RW 6. He deposed that on 17-7-!974 a sample of Toria oil was taken by Dr. Prem Singh from Chamman Lal C/o Kasturi Lal Chamman Lal. Karyana merchants. This stray incident is not of much consequence as Chamman Lal can otherwise be happen to be present on the shop in dispute even though there is no evidence on the file that the karyna business was being run in the name and style of Kasturi Lal Chaman Lal. On the other hand, it would have been understandable if the concern was being run in the name of Roop Lai, karta of the family but that would have also been of no consequence as the respondents had not set up any such specific case in the written-statement. On the other hand, in the evidence led by the respondents, they had set up a case that respondents Nos. 3 and 4 had never run any business in the shop in dispute.
19. The evidence of Devki Nandan (AW 6) that the shop in dispute is occupied by the firm M s. Roop Lal Kasturi Lal and that they used to purchase goods from him from 16-4-1971 to 30-3-1972 as per entries in the cash books, copy whereof is Exhibit A-11, would also assume importance in concluding that only respondents Nos. 3 and 4 were running the business in the shop in dispute as this witness had no grouse to depose falsely against the respondents and there was no question of creating these entries in the year 1971-72. Similarly, the evidence of Lalit Kishore (AW 10), an employee of M / s. Kamal Soap Factory, Amritsar, on the basis of record that the firm M/s. Roop Lal Kasturi Lal has been purchasing soap from their firm from the year 1968-69 to 1976-77 as per entries in the account books, copies whereof are Exhibits A-13 to A-21, further support the above referred conclusion that respondents Nos. 3 and 4 were running karyana business in their own name and style. The damaging admission by Hira Lal (RW 1) and Kewal Krishan (RW 2) as well as by respondent Banarsi Dass (RW 3) during their cross-examination that Roop Lal and Kasturi Lal, respondents Nos. 3 and 4 have no other separate shop of their own further supports the above referred evidence of the landlord that as a matter of fact, respondents Nos. 3 and 4 were running business in the shop in dispute exclusively as it is not the case of respondents Nos. 1 and 2 at the evidence stage that they along with respondents Nos. 3 and 4 used to run the shop jointly.
20. The factum that Banarsi Dass, respondent No. 1, had sought appointment as salesman in the Shekhupur Co-operative Society in the year 1973 as deposed by Chandan Kumar (AW 9) on the basis of the record further shows that he was not running any business in the shop in dispute because otherwise he would not seek his appointment as salesman in the Co-operative Society, which appears to be a whole time job.
21. The factum that all these respondents had taken separate ration cards as per the evidence of Harbans Lal (AW 7) and that Roop Lal resides in a separate house while the other three respondents reside in house No. 371 although not sufficient to disprove that they were members of the joint Hindu family but all the same shows that all these respondents-brothers were not residing jointly as alleged by them in the written-statement . It also belies the version of Banarsi Dass (RW 3) when during cross-examination he denied that Roop Lal was not residing in a separate house. Thus there is clear attempt on the part of this respondent to suppress truth. If that is so, then there is every possibility that these brothers were not doing any business jointly. Banarsi Dass (RW 3) has gone to the extent of alleging that his brothers Roop Lal and Kasturi Lal have never done any karyana business. He further asserted that the shop was registered with the Shop Inspector in the names of Banarsi Dass and Chaman Lal about 15-16 years back which is false as the documentary evidence reveals that the shop was got registered in the name of M/s. Banarsi Dass Chaman Lal only three days prior to the institution of the application.
22. The evidence of Dharam Pal (RW 5) that on 26-1-1977 vide bill No. 5164, his firm had sold some articles to M/s. Chaman LalBanarsi Dass, counterfoil whereof is Exhibit R 2; A is of no consequence as by then, the tenants had become aware of the factum that the landlord was out to file ejectment proceedings against them and thereafter this evidence was created. It is noteworthy that the registration name of the firm from the name of respondents Nos. 3 and 4 was got changed in the name of respondents Nos. 1 and 2 on the basis of application dated 28-1-1977 filed before the Shop Inspector. Moreover, this witness failed to contradict during cross-examination whether Kasturi Lal, respondent No. 3, had come to purchase goods from his shops vide memo Exhibit R2/A. The testimony of Kishan Lal (RW 7), Salesman of the Brooke Bond Tea of India, that vide bill Exhibit R2/B Chaman Lal and Banarsi Dass had purchased some tea is of no consequence as during cross-examination he admitted that the customers were not known to him and he simple writs the name of the firm at the asking of the customer.
23. In view of the above referred state of evidence and the stand of Banarsi Dass, tenant, during his testimony, there is no escape but to affirm the findings of the Rent Controller to the effect that the tenants have parted with the exclusive possession of the shop in dispute to respondents Nos. 3 and 4. If that is so, than the tenants having failed to explain their arrangement with the subtenants inter se as to in which capacity the latters were occupying the shop in dispute, there is no option but to conclude that the tenants had sublet the shop in dispute to respondents Nos. 3 and 4 without the written consent of the landlord. As a result thereof, the impugned order of the Appellate Authority is set aside while that of the Rent Controller restored by accepting this petition. The parties are, however, left to bear their own costs in view of the peculiar circumstances of the case.
24. Petition allowed.