OM PARKASH Vs. JUGAL KISHORE ETC

JUDGEMENT

(1.) This is a petition for revision and is directed against the order of Appellate Authority, reversing on appeal the decision of the Rent Controller, granting the landlord's application for the eviction of the tenant on the ground of Sub-letting. The landlord is Om Parkash and the tenant is Jugal Kishore. The shop which is the subject-matter of dispute is situated in the town of Gurgaon. It has two doors, one door opens in the Agarwal Market and the other in the Sadar Bazar. The petition was filed by the landlord on the ground that Jugal Kishore had sublet the shop to his brother and his brother's son, respondents 2 and 3, and this has been done by dividing the shop. A local Commissioner was appointed and he testified that the two brothers were carrying on separate business but there was no division of these shop and that the entire shop was accessible from either side. The stand of the tenant that his business was joint with his brother was not accepted by the Rent Controller as well as by the Appellate Authority. However, on the basis of the fact that the brother of the tenant was carrying on separate business and there were two doors providing independent access to the two sides where the business was separately carried on, the Rent Controller recorded the finding that the Sub-letting was proved. On appeal by the tenant, the Appellate Authority took a different view of the matter. It came to the conclusion that on these facts, no Sub-letting could be proved because the tenant had not parted with the control of any part or whole of the premises to his brother. Therefore, the decision of the Rent Controller was set aside and the application of the landlord was dismissed. The landlord has come up in revision to this Court.

(2.) Mr. Anand Sarup with his usual vigour and force argued that on the facts proved and admitted, Sub-letting is proved. According to the learned counsel, the facts proved are that Jugal Kishore who took the stand that his business with his brother is joint had failed to substantiate it. Therefore, the brothers were carrying on separate and independent business; hat the shop had two doors and each brother locked his own side of the door and that there was wooden railing on the floor which the authority below have called a 'stick' dividing the shop at the floor level. On these facts, the learned counsel contends that the only irresistible conclusion is that there is Sub-letting. He further buttresses his argument on the plea that in the case of Sub-letting no direct evidence can be forthcoming. In this situation, it is all the more necessary to infer Sub-letting from these facts.

(3.) After hearing the learned counsel, I am of the view that two conclusions were possible on these facts. That there is Sub-letting and also that there is no Sub-letting. The Appellate Authority has come to the conclusion that there is no Sub-letting. This is a conclusion on a question of fact and is final so far as this Court is concerned. It is not open to this Court in revision to substitute its own conclusion on a question of fact. It would be a different matter if on these facts only one conclusion was possible. If the Appellate Authority had come to a conclusion not possible, this Court could have interfered in revision. But this is not so. The use of premises by a brother can be inconsistent with the theory of Sub-letting because a brother may out of love and affection and to help his brother allow him the use of the shop without any rent or without actually parting with the possession of the shop or any part thereof. It can also be a case of licence but unless there are circumstances which clearly show Sub-letting it Will be difficult to come to the conclusion that in fact there is Sub-letting. A definite case was set up in application that the shop had been partitioned for the purposes of Sub-letting. This part of the case has not been substantiated. As already stated, the Appellate Authority has found that the control of the entire shop is with Jugal Kishore. Thus in this situation I am unable to uphold the contention of the learned counsel that Sub-letting had been proved and the Appellate Authority was wrong in coming to a contrary conclusion.