- (1.) S. U. Khan, J. This is tenant's writ petition arising out of suit for eviction instituted by landlord-respondent No. 2, Noor Mohd. against him on the ground of sub-letting in the form of SCC Suit No. 221 of 1988. Property in dispute is a shop, rent for which is Rs. 15/- per month. In the plaint, it was alleged that shop in dispute had been sub-let to Chaman Milk Vendor.
(2.) PRIOR to filing of the suit giving rise to the instant writ petition, landlord-respondent No. 2 had instituted another suit on the same ground being Suit No. 560 of 1979, which had been dismissed. Thereafter, release application under Section 21 of U. P. Act No. 13 of 1972 on the ground of bona fide need was filed by the landlord, which was also dismissed. The suit giving rise to the instant writ petition (S. C. C. Suit No. 221 of 1988) was dismissed by J. S. C. C. , Aligarh on 20-7-1990 holding that there was no sub-letting and that in the earlier suit it had been decided that there was no sub-letting hence the said finding operated as res judicata. Against judgment and decree dated 20-7-1990, landlord-respondent No. 2 filed S. C. C. Revision No. 41 of 1990. District Judge, Aligarh through judgment and order dated 8-2-1991, allowed the revision, set aside the judgment and decree passed by the J. S. C. C. and decreed the suit of landlord-respondent No. 2 for ejectment. Through this writ petition, tenant has challenged the aforesaid judgment of the Revisional Court dated 8-2-1991. The Revisional Court held that the finding that there was no sub-letting in the earlier suit did not operate as res judicata as it was quite possible that after the decision of the earlier suit, sub-letting might have been taken place. In the earlier suit also same person who alleged to be sub-tenant. In the plaint of the suit giving rise to the instant writ petition, no date of alleged sub-tenancy was mentioned. Normally, it is not necessary to mention the exact date on which sub-tenancy is alleged to have taken place. However, in view of the fact that in the earlier litigation it had specifically been held that there was no sub-tenancy, in the subsequent suit on the ground of alleged sub-tenancy it was necessary to mention the date or at least the period when sub-tenancy came into existence.
(3.) THE Revisional Court held the sub-tenancy proved only on the ground that in the Commissioner's report it was mentioned that at the time of inspection Kullarhs were found in the shop and tenant could not explain the reason for their presence. This is no ground to hold the sub-tenancy proved. Advocate Commissioner did not mention in his report that at the time of inspection he found the alleged sub- tenant or any other person in possession or part possession of the shop in dispute. It is correct that in order to prove sub-tenancy, it is not necessary to prove actual agreement of sub-tenancy and by exclusive possession of sub-tenant, sub- tenancy can be presumed. However, Revisional Court did not record any finding in respect of possession of alleged sub-tenant. By mere presence of Kullarhs, sub- tenancy of Chaman Milk Vendor could not be presumed (tenant petitioner is carrying on the business of General Merchant from the shop in dispute ). Accordingly, I hold that the finding of sub-letting recorded by the Revisional Court is erroneous in law and liable to be set aside.;