RAEES KHAN Vs. IVTH ADDITIONAL DISTRICT JUDGE RAMPUR

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed against the order of the trial court whereby the trial court has decreed the suit filed by the landlord on the ground of sub-letting and the revisional court confirmed the order of the trial court.

(2.) The landlord plaintiff filed the suit on the ground that Races Khan defendant No. 1 was a tenant and he sub-let the shop in dispute to Ameer Khan who is his own brother. Admittedly, the tenancy was in the name of Races Khan. The parties led the evidence before the trial court. The trial court arrived at the finding that from the evidence available on record, it !s clear that Races Khan has sub-let the shop in dispute in favour of defendant No. 2, Ameer Khan. The aforesaid order and decree of the trial court has been confirmed by the revisional court. A suit with regard to arrears of rent has been dismissed.

(3.) Learned counsel for the petitioners has argued that from the evidence on record, the findings arrived at by the trial court is wholly erroneous and it has been argued to demonstrate before the revisional court and revisional court erroneously rejected. The revisional court has dealt with the argument raised by the learned counsel for petitioners that it has been admitted by Races Khan, who was examined, that he is selling the betels in a tokra for past two years at the distance of 4/5 paces from the shop in dispute which is run by defendant No. 2 who is his own real brother and defendant No. 2 is only helping him in business and he has no concern with profit and loss. Learned counsel for the petitioners further submitted that the plaintiff has not discharged the burden relying upon a decision referred by the revisional court wherein the law as stated is that once the plaintiff has discharged his burden, the burden is shifted on the defendant to prove the case in his favour. Thus, in the present case the burden was on defendant No. 1 to prove that he is running the business in the shop in dispute and the defendant No. 1 has given his oral evidence in discharge of that burden wherein he has stated that he is running and maintaining the business but no evidence to this effect has been filed either before the trial court or the revisional court. In the absence of the aforesaid material, it cannot be presumed that defendant No. 1 is controlling the business, where admittedly the defendant No. 2 is regularly sitting and managing the business. The defendants led the evidence that the business of betels is being carried out in a different locality whereas it is admitted case of the defendants that the defendant No. 1 is carrying business of selling betels at 4/5 paces away from the shop in dispute, where the tea stall is run by defendant No. 2.