Sudhir Narain Agarwal, J. - (1.) THIS writ petition is directed against the judgment dated 18th April, 1985 whereby the Judge Small Causes Court, Shahjahanpur decreed the suit for recovery of arrears of rent, ejectment and damages and the order of the revisional court dated 29.10.1986 dismissing the revision against the aforesaid judgment. Briefly stated that facts are that Shyam Kumar, plaintiff -respondent No. 3, filed suit No. 29 of 1976 against Prabhu Singh Rathor and Bhajan Lal with the allegations that the petitioner was tenant of the disputed premises at the monthly rent of Rs. 44/ -. He illegally sub -let it to Bhajan Lal, defendant No. 2 without his consent and therefore he was liable for eviction under Section 20(2)(e) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act). The trial court decreed the suit on the finding that the petitioner had permitted the defendant No. 2 to live in the house in question and that amounted to sub -letting. The tenant, defendant No. 1 preferred a revision. The revision has been dismissed by the impugned order.
(2.) I have heard Sri P.K. Jain learned counsel for the petitioner and Sri Janardan Sahai learned counsel for the respondent. The version of the defendant No. 1 was that defendant No. 2 was related to him an uncle (Mausa) and was jointly living with him. The trial court recorded a finding that the defendant No. 2 was living jointly with defendant No. 1. It was necessary for the plaintiff to prove that the tenant had parted possession of the disputed premises and delivered it to another person. In absence of transfer of possession it cannot be held that there was any subletting. There is no finding that defendant No. 2 was in exclusive possession of the disputed accommodation. If the guest, servant or relative of tenant lives with him, certainly the accommodation cannot be treated as vacant but if some of his relations live jointly for certain reasons where the tenant has not given exclusive possession to him, the court has to consider that in those circumstances the accommodation should be treated as vacant.
(3.) IN Associated Hotels of India Ltd. v. R.N. Kapoor : AIR 1959 SC 1262, while examining the difference between the words lease and licence it was pointed out that if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The Court quoted with approval the following observation of Lord Denning reflected in Errington v. Errington, 1952 -1 All ER 149. The result of all these cases is that, although a person who is let into exclusive possession is 'prima facie' to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.;