S.P.Srivastava - (1.) THIS petition by the landlady is directed against the judgment and decree passed by the respondent no. 1 whereunder allowing the revision filed by the tenant under section 25 of the Provincial Small Cause Courts Act. the decree of eviction passed by the Judge Small Causes Court Against the tenant-respondent was set aside and the suit for recovery of possession was dismissed.
(2.) THE facts shown of details and necessary for the disposal of the present case are that the petitioner-landlady had filed the suit claiming a decree for the eviction of the respondents nos. 3 and 4 from the premises in dispute and for recovery of arrears of rent and damages on the allegations, inter-alia, that the premises In dispute had been let out to the respondent no. 3 at the rate of Rs. 30/- per month but since he had not paid the rent due with effect from 1-3-78 he was a defaulter within the meaning of section 20 (2) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972 (U. P. Act no. 13 of 1972); that he had created an illegal subtenancy in favour of the respondent no 4 and that the tenant had without the permission in writing of the landlady made unauthorised construction and structural alteration in the building in dispute and since respite of the service of the notice he had neither cleared of the arrears nor vacated the premises, hence the suit. The aforesaid suit was contested by respondents nos. 3 and 4 denying the plaint allegations asserting that neither any default had been committed In the payment of rent nor any illegal sub-tenancy had been created. The defendant-tenant also claimed benefits available under section 20 (4) of the U. P. Act no. 13 of 1972. "In the joint written statement filed in the suit, it was asserted is para 22 thereof that the defendant second set-present respondent no. 2-was the real younger brother of present respondent no. 3 and not a sub-tenant in the accommodation in question and he had simply been coming to defendant no. 1 time to time who is his elder brother and the defendant no, 2 did not reside in the disputed accommodation. After appraising the evidence on record, the (rial court on cogent grounds came to the conclusion that the case of the defendant no. 2,-present respondent no 4-to the effect that he used to reside in the village and not in the accommodation in dispute was cot acceptable. Being of the view that it was not necessary for the plaintiff to prove that defendant no. 2 was in exclusive occupation of a portion of the accommodation in dispute and was residing therein separately and was also paying rent to the chief tenant, the trial Judge came to the conclusion that the plaintiff had been successful In establishing that the defendant second set was residing in the accommodation in dispute along with defendant no. 1 and that was sufficient for determining the status of the defendant second set to be that of a subtenant. The trial court raised a presumption relating to coming into existence of a sub-tenancy available to a landlord under the explanation to section 25 of the U. P. Act no 13 of 1972 and held the status of the defendant no. 2 to be that of a sub-tenant. The case of the plaintiff about (he accommodation in dispute having been materially altered within the meaning of section 20 (2) (c) of U. P. Act no. 13 of 1972 was However, accepted. The trial court further held the defendant-tenant to be entitled to the benefits available under section 20 (4) of U. P. Act no. 13 of 1972. In the above circumstances, in view of the finding on the question of illegal sub-tenancy and unauthorised structural alterations the suit was decreed as prayed.
(3.) BEING aggrieved by the aforesaid decree the respondents nos. 3 and 4 filed a revision under section 25 of the Provincial Small Cause Courts Act. The revisional court came to the conclusion that the defendant no. 1- the present respondent no. 3-was continuously residing in the accommodation in dispute since it was not the case of he plaintiff that the said accommodation had been split up into two portions, the revisional court concluded that the tenant was to be deemed to be in actual occupation of every Inch of the house with the result that the defendant no. 2 present-respondent no. 4 could not be held to be in occupation of the disputed house st all The revisional court further observed that in the facts and circumstances, it was a case of mere residence which might be as a guest or in some other capacity but the main ingredient of sub-tenancy was not satisfied because the complete possession could not be established with the defendant no. 2 the alleged sub-tenant. The revisional court, therefore, reversed the finding of the trial court and the question of the coming into existence of the alleged sub-tenancy. The revisional court further reversed the finding of the trial court on issue no. 2 and in view of the reversal of the finding on the question of sub-tenancy and unauthorised material alterations envisaged under section 20 (2) (c) and (e) of the Act, the revision was allowed and the suit for recovery of possession was dismissed The landlady has now approached this Court for redress seeking the quashing of the judgment and decree passed by the revisional court dated 17-2-81.;