MOHD FIROZ Vs. DISTRICT JUDGE ALIGARH

JUDGEMENT

(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.

(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 ).