{"id":155492,"date":"2010-12-01T00:00:00","date_gmt":"2010-11-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sandhi-vs-heard-on-1-december-2010"},"modified":"2015-07-02T05:04:06","modified_gmt":"2015-07-01T23:34:06","slug":"sandhi-vs-heard-on-1-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sandhi-vs-heard-on-1-december-2010","title":{"rendered":"Sandhi vs Heard on 1 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sandhi vs Heard on 1 December, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCRA\/1645\/1999\t 17\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nREVISION APPLICATION No. 1645 of 1999\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 4315 of 2002\n \n\nIn\nCIVIL REVISION APPLICATION No. 1645 of 1999\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nSANDHI\nABU AHMAD - Applicant(s)\n \n\nVersus\n \n\nMEHBOOB\nHASINALI BADRUDDIN - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nNIRAV C THAKKAR for\nApplicant(s) : 1, \nNone for Opponent(s) : 1, \nMR MEHUL S SHAH for\nOpponent(s) : 1.2.1,1.2.3  \nMR SURESH M SHAH for Opponent(s) :\n1.2.1,1.2.3  \nSERVED BY AFFIX.(N) for Opponent(s) : 1.2.2  \nNOTICE\nSERVED for Opponent(s) : 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.3.1,\n1.3.2,1.3.3  \nUNSERVED-EXPIRED (N) for Opponent(s) : 1.2.8\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 01\/12\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned advocate Mr.N.C.Thakkar for petitioner – original
\ndefendant No.2 and learned advocate Mr.Suresh M. Shah  for
\nrespondents.\n<\/p>\n
2.
\nPresent Civil Revision Application is filed by tenant. The HRP suit
\nfiled by plaintiff for eviction on the ground of subletting and
\ntenant is in arrears of rent. The suit has been decreed in favour of
\nlandlord. Thereafter, appeal preferred by tenant which also
\ndismissed. The contention raised by petitioner is that he is a tenant
\nand not sub-tenant. The suit was decreed in favour of landlord on
\n30.4.1986 and appeal preferred by tenant has been dismissed on
\n31.7.1999.\n<\/p>\n
3.\tLearned
\nadvocate Mr.N.C.Thakkar has raised contention before this Court that
\nin fact, suit was filed by landlord on two grounds; one is subletting
\nand second is that tenant is in arrears of rent. He also submitted
\nthat in fact, there was no subletting and petitioner is not
\nsub-tenant but, petitioner is tenant. The respondent No.8 (orig.
\ndefendant No.1) – Hasanali Badruddin was original tenant. The
\nmother of defendant No.2 was working with defendant No.1, who stood
\nas guarantor of petitioner for payment of rent. The sale deed
\nexecuted between Pyarali Jesa and previous owner wherein it was not
\nmentioned about sitting tenant. The municipal record shows that
\npetitioner is tenant. The father of petitioner was working  in police
\ndepartment, who died in year 1972. Even in death certificate of
\nfather of petitioner produced on record before trial Court where
\nresidential address has been given of suit premises. The respondent
\nNo.8 (defendant No.1) was not examined before trial Court. He also
\nsubmitted that according to Section 13(1)(e) of Bombay Rent Act, if
\nsub-tenancy is to be proved, then exclusive possession of sub-tenant
\nand transfer of suit premises after receiving valuable consideration
\nis must have to be proved by plaintiff which has not been proved by
\nplaintiff before trial Court, even not pleaded by plaintiff. The rent
\nnote of 1961 has been wrongly considered at Exh.52 which was not
\nfound on the stamp, even though it believed say of plaintiff, then
\nsuit is filed after a period of 8 years from the knowledge of
\nplaintiff. Therefore, conduct of plaintiff not to immediately filed
\nsuit for possession from petitioner and meanwhile, accepting rent
\nfrom petitioner which amounts to accepting petitioner as a tenant by
\nplaintiff and no notice has been served to petitioner before filing
\nsuit by plaintiff against present petitioner.\n<\/p>\n
4.\tLearned
\nadvocate Mr.N.C.Thakkar has relied upon decision of this Court in the
\ncase of Bhagwati Spg. @ Wvg. Works v. Ahmedabad New Cotton Mills Co.
\nLtd., reported in 1979 GLR 932. Relevant Head Note of aforesaid
\ndecision is quoted as under :\n<\/p>\n
“Bombay
\nRents, Hotel and Lodging House Rates Control Act,1947 (LVII of 1947)\n<\/p>\n
– Sec.13(1)(e) – Evidence Act (1 of 1872) – Sec.59\n<\/p>\n
– Question of sub-tenancy – Valuable consideration has to
\nbe proved – Such facts about valuable consideration can be
\nproved expressly or can be inferred from other facts –
\nExtremely difficult for landlord to show that there was valuable
\nconsideration in case of sub-letting – Therefore, valuable
\nconsideration can be inferred from other circumstances – Tenant
\nsub-leasing to a stranger – Valuable consideration can be
\ninferred in such circumstances.”\n<\/p>\n
4.1\tLearned
\nadvocate Mr.Thakkar also relied upon a decision of this Court in the
\ncase of Dahiben Lakhabhai & Anr. v. The Administrative Officer
\nand Ors., reported in 1980 GLR 90. Relevant Head Note of aforesaid
\ndecision is quoted as under :\n<\/p>\n
“Bombay
\nRents, Hotel and Lodging House Rates Control Act,1947 (LVII of 1947)\n<\/p>\n
– Sec.13(1)(e) – In order to prove act of unlawful
\nsub-letting it must be proved that transfer was for valuable
\nconsideration – Transfer of premises by panchayat to
\nmunicipality not accompanied by valuable consideration – sec.
\n13(1)(e) therefore not applicable.”\n<\/p>\n
4.2\tLearned
\nadvocate Mr.Thakkar also relied upon a decision of this Court in the
\ncase of M\/S. Rameshchandra K. Patwa & Ors. v. Vithaldas Chimanlal
\n& Ors, reported in 1993 (1) GLR 193. Relevant Head Note of
\naforesaid decision is quoted as under :\n<\/p>\n
“Bombay
\nRents, Hotel and Lodging House Rates Control Act,1947 (LVII of 1947)\n<\/p>\n
– Sec.13(1)(e) – To constitute sub-letting, parting of
\npossession is a sine qua on or condition precedent – If
\npossession is not proved it is not open to draw any inference or make
\nany conjecture regarding nature of possession – If possession
\nis admitted, it is open to infer the nature of possession in absence
\nof any explanation from tenant or the party in possession –
\nFactum of possession is required to be established.\n<\/p>\n
Before
\nlandlord is entitled to a decree for possession on the ground of
\nsub-letting, he will have to satisfy the Court that the tenant has
\nparted with possession of the entire suit property or part thereof in
\nfavour of a third party who is in exclusive possession thereof and
\nthereof and there is monetary consideration.”\n<\/p>\n
4.3\tLearned
\nadvocate Mr.Thakkar relied upon aforesaid decisions to establish the
\nfact that while proving sub-tenancy, exclusive possession of
\nsub-tenancy is necessary to be proved and also transfer made by
\ntenant to sub-tenant on valuable consideration. These facts neither
\npleaded nor proved by plaintiff before trial Court. Therefore,
\njudgment and decree passed by trial Court as well as confirmed by
\nappellate Court is required to be set aside.\n<\/p>\n
5.\tLearned
\nadvocate Mr.S.M.Shah for respondent submitted that there is no need
\nto give notice to sub-tenant means present petitioner under Section
\n12(2) of Bombay Rent Act as well as Section 106 of Transfer of
\nProperties Act because sub-tenant is not a tenant. He further
\nsubmitted that rent note at Exh.52 is on stamp paper and also
\nexhibited before trial Court and now, such dispute cannot be allowed
\nto be raised by petitioner that Exh.52 is unstamped document. He also
\nsubmitted that delay in filing suit after a period of 8 years  which
\ncannot debar  landlord for filing suit for possession from
\nsub-tenant. In fact, according to him, there is no delay at all in
\nfiling civil suit against present petitioner. He also submitted that
\nmerely accepting rent from present petitioner, it cannot be
\nconsidered to be a tenant of landlord. The original tenant was
\nconsidered to be a surety and guarantor, even that contention was not
\nestablished by present petitioner before below Courts. He also
\nsubmitted that it is necessary under Section 13(1)(e) of Bombay Rent
\nAct that landlord must have to prove exclusive possession of
\nsub-tenant whole or part of premises was assigned or transferred in
\nany manner his interest but, valuable consideration in monetary terms
\nis not required to be proved by landlord. He submitted that exclusive
\npossession of suit premises has been proved by landlord before trial
\nCourt and tenant has transferred his interest of suit premises to
\npresent petitioner. Therefore, he submitted that ingredients of
\nSection 13(1)(e) of Bombay Rent Act has been fully established and
\nsatisfied by landlord before trial Court. Therefore, according to
\nhim, trial Court as well as appellate Court has not committed any
\nerror of law, therefore, this Court cannot interfere while exercising
\npower under Section 29(2) of Bombay Rent Act. He submitted that this
\nCourt is having very limited jurisdiction, cannot re-appreciate
\nevidence which are on record and according to him, unless finding is
\ngiven by both below  Courts if it is found to be perverse, then only
\nthis Court can interfere in such revision application. But he
\nsubmitted that petitioner has not established before this Court that
\nfinding given by Courts below is perverse in any manner.\n<\/p>\n
6.\tI
\nhave considered submissions made by both learned advocates appearing
\nfor respective parties and also perused judgment and decree passed by
\nboth below Courts.\n<\/p>\n
7.\tBrief
\nfacts of present Civil Revision Application are that the plaintiff is
\nlandlord of suit premises which was rented to defendant No.1 for his
\npersonal use by preparing rent note dated 29.11.1961 while fixing
\nrent at Rs.30\/- per month. Thereafter, on the basis of relation,
\nmonthly rent has been reduced from Rs.30\/- to Rs.22.50. This property
\nwas rented to defendant No.1 by Pyarali Jesa. But subsequently, the
\nsuit premises has been sublet or handed over to defendant No.2
\n(present petitioner) as a sub-tenant by defendant No.1. Therefore,
\nnotice has been served to defendant No.1 dated 23.2.1981 which was
\nreplied by defendant No.1. The arrears of rent due from defendant
\nNo.1. w.e.f. 1.7.1981 to 31.3.1983 which total amount comes to
\nRs.472.50 ps. Therefore, tenant was arrears in rent. The right of
\ntenancy has been transferred and assigned in favour of respondent
\nNo.2. Therefore, suit has been filed by landlord against defendant
\nNos.1 and 2. The defendant No.1 has filed written statement before
\ntrial Court vide Exh.9 and defendant No.2 has filed written statement
\nvide Exh.17. According to case of defendant No.2 – present
\npetitioner that defendant No.1 was never be a tenant and this suit
\nhas been filed by landlord with a collusion of defendant No.1.
\nTherefore, it was a specific case or defence of present petitioner
\nbefore trial Court that defendant No.1 was not at all tenant in suit
\npremises. Therefore, question of transferring or assigning rights of
\ntenancy in favour of present petitioner does not arise. According to
\ndefendant No.2 – present  petitioner, he was residing in the suit
\npremises since his father was residing in the year 1950-1951. At that
\noccasion, this suit premises was in the control and administration of
\ncustodian. The father of present petitioner – defendant No.2
\nwas working in police department and on that basis, he was residing
\nin suit premises and rent was deducted by landlord from salary of
\nfather of present petitioner. This suit premises was purchased by
\nChandumal from custodian. Therefore, present petitioner –
\ndefendant No.2 become legal tenant of landlord Chandumal. This suit
\npremises \/ property was sold to present plaintiff is father  Pyarali
\nJesa by Chandumal in the year 1960-1961. According to defendant No.2,
\ndefendant No.1 was a guarantor or surety for giving regular rent to
\nlandlord.\n<\/p>\n
8.\tThe
\nissues have been framed by trial Court vide Exh.18 where it has been
\nproved before trial Court that suit property has been given on rent
\nto defendant No.1 means defendant No.1 was tenant of suit premises.
\nThat fact has been proved by plaintiff before trial Court and
\ndefendant No.1 was tenant in arrears and rent has been found to be
\ndue of more than 6 months and after receiving notice from landlord,
\nthis due rent has not been paid by defendant No.1. The issue in
\nrespect of subletting has also been proved by plaintiff while leading
\nproper evidence on record as well as producing evidence on record.
\nThe finding given by trial Court that rent note was executed between
\nlandlord and defendant No1. Therefore, defendant No.1 is considered
\nto be legal tenant of suit premises. But at the time of filing suit,
\ndefendant No.2 is having exclusive possession of suit premises. The
\ntrial Court has considered rent note which was proved before trial
\nCourt at Exh.52 and on that basis, trial Court has come to conclusion
\nthat defendant No.1 is only tenant of suit premises. At the time when
\nproperty was purchased by plaintiff from earstwhile owner of the
\nproperty, there was no mention about tenant in suit premises.
\nThereafter, vide Exh.52 a rent note was executed between landlord and
\ndefendant No.1. Therefore, after appreciating evidence on record, the
\ntrial Court has come to conclusion that defendant No.1 is tenant of
\nsuit premises. The defendant No.2 – present petitioner has not
\nproved the fact before trial Court that he was a tenant of suit
\npremises. On the basis of record and evidence, it has been clearly
\nproved and established by plaintiff that suit premises is now in
\nexclusive possession of defendant No.2. The real reason is that
\nmother of defendant No.2 was working in the suit premises for serving
\nto defendant No.1. Therefore, suit premises was given for some
\naccommodation to mother of defendant No.2. But, thereafter mother of
\ndefendant No.2 has stopped working with defendant No.1. Therefore,
\npossession of suit premises of present petitioner – defendant
\nNo.2 is considered to be a subletting and not as a right of tenant.
\nThe plaintiff has proved his case on the basis of Exh.52 where rent
\nnote has been executed between plaintiff- defendant No.1 and there is
\nno document which has been executed by landlord in favour of
\ndefendant No.2. Therefore, exclusive possession of suit premises of
\ndefendant No.2 it amounts to transferring and assigning tenancy right
\nby defendant No.1 in favour of defendant No.2. Therefore, question of
\nvaluable consideration in terms of monetary does not arise in each
\ncase because transfer and assign must
\nbe based on some social obligation, relation and for any other
\nreasons which considered to be valuable consideration. The social
\nconsideration for accommodation for possession of suit premises to
\nthe mother of defendant No.2 has been established by plaintiff. The
\nmother of defendant No.2 was working in the house of tenant –
\ndefendant No.1. For that some time during that period, accommodation
\nhas been given to mother of defendant No.2 in suit premises.
\nTherefore, trial Court has rightly considered evidence on record and
\nrightly appreciated rent note at Exh.52
\nand tenant was remained  in arrears after receiving notice. No due
\nrent has been paid to landlord by defendant No.1. Therefore, trial
\nCourt has not committed any error of law or finding which has been
\ngiven by trial Court is not contrary to law and perverse.\n<\/p>\n
9.\tThe
\nappeal preferred by petitioner has been examined by appellate Court
\nand appellate Court has re-appreciated evidence on record and come to
\nconclusion that on the contrary, on the basis of evidence it goes to
\nshow that defendant No.2 was not residing in the suit premises as a
\ntenant of the plaintiff. If the defendant No.2 was residing in the
\nsuit premises since last 1950-1951, he would have in possession of
\nrent note or rent receipts but, nothing has been produced by him to
\nestablish his tenancy rights over the suit premises. Merely producing
\ndocumentary evidence to establish tenancy rights, assessment made by
\nMunicipality for the year 1980 at Exh.46 but, on that basis no
\ntenancy rights in favour of defendant No.2 can be created. From the
\nsale deed which  was produced by plaintiff vide Exh.26, it transpires
\nthat seller had handed over peaceful and vacant possession to the
\npurchaser – deceased plaintiff (Pyarali Jesa). Therefore, on
\n27.11.1961, there was no tenants in the suit premises. If the defence
\nof defendant No.2 is to be believed, then it must have been mentioned
\nin sale deed at Exh.26 the presence of defendant No.2, who was
\nresiding in suit premises on 27.11.1961. In sale deed at Exh.26, this
\nfact was not mentioned. Therefore, it falsified the claim of
\ndefendant No.2 as a tenant of the suit premises. In result, defendant
\nNo.2 is not able to establish his tenancy rights over the suit
\npremises. It is a clear finding of fact found from records
\nconsidering documentary evidence as well as admission of defendant
\nNo.1 himself that defendant No.1 was the tenant of plaintiff and he
\nhad hired the suit premises for the purpose of residence of mother of
\ndefendant No.2 because she was working with defendant No.1. Thus, it
\nis clearly proved that defendant No.1 was tenant of the suit
\npremises. Merely because defendant No.1 had hired the suit premises
\nfor the residence of mother of defendant No.2, it cannot be said that
\ndefendant No.2 becomes tenant of suit premises. Considering admission
\nmade by defendant No.1 that he has assigned possession of suit
\npremises to defendant No.2 without consent of plaintiff. The
\ndefendant no.1 has sublet or assigned or transferred the suit
\npremises to defendant No.2. Therefore, defendant No.1 has committed
\nbreach of terms of agreement and defendant No.2 has no tenancy rights
\nover suit premises.\n<\/p>\n
10.\tIn
\nview of aforesaid reasoning given by appellate Court after
\nre-appreciating oral as well as documentary evidence and admission
\nmade by defendant no.1, the finding of fact has been recorded by both
\nbelow Courts and entire matter has been examined by Courts below on
\nthe basis of facts. No question of law has arisen and involved while
\ndeciding suit by trial Court as well as appeal by appellate Court. No
\ncontention has been raised by defendant No.2 before trial Court that
\nvaluable consideration was not there while transferring or assigning
\nright of tenancy in favour of defendant No.2 by defendant No.1. The
\ningredients of Section 13(1)(e) of Bombay Rent Act has been fully
\nestablished and justified on the basis of records produced before
\ntrial Court by plaintiff. The decisions which have been relied upon
\nby learned advocate Mr.Thakkar are not applicable to peculiar
\nundisputed exclusive possession of present petitioner as facts of
\nthis case because facts have been found from record, is otherwise.
\nTherefore, contentions which have been raised by learned advocate
\nMr.Thakkar cannot be accepted. In this case, there is concurrent
\nfinding of facts from Courts below. After considering reasoning given
\nby Courts below as well as appreciation of evidence by both below
\nCourts, according to my opinion, both Courts below have not committed
\nany error of law or view taken by Courts below is not contrary to
\nlaw. This Court is having a limited jurisdiction under Section 29(2)
\nof Rent Act, cannot re-appreciate the evidence which was already
\nappreciated by Courts below. The concurrent finding of fact, this
\nCourt cannot disturb in revision application. Therefore, in such
\ncircumstances, the view taken by Apex Court in case of Patel Valmik
\nHimatlal and Others v. Patel Mohanlal Muljibhai, reported in (1998) 7
\nSCC 383 in Para.4, 5 and 6 are relevant, which is quoted as under :\n<\/p>\n
“4.\n<\/p>\n
Section 29(2) of the Bombay Rents Act as applicable to Gujarat
\namendment reads as follows :-\n<\/p>\n
“29(2).\n<\/p>\n
No further appeal shall lie against any decision in appeal under
\nsub-section (1) but the High Court may, for the purpose of satisfying
\nitself that any such decision in appeal was according to law, call
\nfor the case pass such order with respect thereto as it thinks fit.”\n<\/p>\n
5.
\nThe ambit and scope of the said section came up for consideration
\nbefore this Court in Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb
\nKadri and others: (1987) 3 SCC 538 and after referring to a catena of
\nauthorities, Sabyasachi Mukharji, J. drew a distinction between the
\nappellate and the revisional jurisdictions of the courts and opined
\nthat the distinction was a real one. It was held that the right to
\nappeal carries with it the right of rehearing both on questions of
\nlaw and fact, unless the statute conferring the right to appeal
\nitself limits the rehearing in some way, while the power to hear a
\nrevision is generally given to a particular case is decided according
\nto law. The Bench opined that although the High Court had wider
\npowers than that which could be exercised under Section 115 of the
\nCode of Civil Procedure, yet its revisional jurisdiction could only
\nbe exercised for a limited purpose with a view to satisfying itself
\nthat the decision under challenge before it is according to law. The
\nHigh Court cannot substitute its own findings on a question of fact
\nfor the findings recorded by the courts below on reappraisal of
\nevidence. Did the High Court exceed its jurisdiction ?\n<\/p>\n
6.
\nThe powers under section 29(2) are revisional powers with which the
\nHigh Court is clothed. It empowers the High Court to correct errors
\nwhich may make the decision contrary to law and which errors go to
\nthe root of the decision but it does not vest the High Court with the
\npower to re-hear the matter and re-appreciate the evidence. The mere
\nfact that a different view is possible on re-appreciation of evidence
\ncannot be a ground for exercise of the revisional jurisdiction.”\n<\/p>\n
10.1\tThis
\nCourt,  in the case of Manjibhai Shamjibhai, owner  of Maheshkumar &
\nCo. v. Natraj Theatre & Anr., reported in 1999 (1) GLH 749,
\nexamined aforesaid aspect. Relevant observations of aforesaid
\njudgment are in Para.8, 9, 12 and 13, which are quoted as under :\n<\/p>\n
8.\tThis
\n Court  in  Kusumben wd\/o Vasantlal & Others Vs.Shrenikbhai
\nKasturbhai & Others, 1998(2) GLH 426  also took similar  view.
\nIn view of the Apex Court’s verdict interference by the High
\nCourt in revision of this nature can be done only for  a  limited
\npurpose  of correcting errors  of  law in the judgments of the two
\nCourts below. It has therefore, to be seen whether  the  judgments
\nand decrees of the Courts below are in accordance with law or not.
\nFinding  of  fact  howsoever  erroneous cannot be corrected in
\nrevision of this nature.  At the same time, it  is  also  difficult
\nto accept the contention that the revisional Court is debarred from
\nperusing  the evidence adduced by  the  parties.    Perusal  of
\nevidence of the parties  is  permissible  for  a  limited   purpose
\nfor satisfying whether it is a case of misreading of evidence or that
\nthe finding is based on evidence which is totally inadmissible.   To
\nthis  extent  perusal  of evidence is possible.  Likewise perusal of
\nevidence  is  possible if conjectural findings have been recorded by
\nthe two Courts below,  otherwise,  normally  interference in revision
\non concurrent findings of fact and law is not permissible.\n<\/p>\n
9.\tSo
\n far  as  the  question  of arrears of rent is concerned, decree on
\nthis point has not  been challenged by the  learned  Counsel  for
\nthe  revisionist.   If the decree for eviction on this ground is  to
\nbe confirmed, more  particularly,  when  the  tenant  in  chief has
\nnot contested  this  revision  and  further   in   case the
\nrevisionist  is  found to be subtenant he has to go along with the
\ntenant  in  chief  and  his  independent rights cannot be entertained
\nat this stage.\n<\/p>\n
13.\tFor
\nestablishing subtenancy, the landlord has  to establish two things.
\nThe first is transfer of exclusive possession  to  the  alleged
\nsubtenant and the second is that such transfer should be for valuable
\nconsideration. Valuable  consideration  need  not  necessarily mean
\ncash consideration in the shape of rent.    Once  transfer of
\nexclusive possession is established the Court can, on the facts  and
\ncircumstances of the case, draw inference that such transfer was for
\nvaluable consideration. Reason for drawing such inference is that it
\nis  almost impossible for  the landlord to establish by direct
\nevidence payment of rent by subtenant to the tenant in chief in as
\nmuch as such contract is always secret and the  landlord remains
\nunaware of  such  contract.    However,  the question of establishing
\nvaluable consideration does not arise in the remaining two
\ncontingencies as contemplated in section 13 viz.  transfer or
\nassignment otherwise. But even in these contingencies  the  landlord
\nhas to prove that exclusive possession of the demised premises was
\ntransferred by the tenant in chief to the subtenant.\n<\/p>\n
13.\tMr.V.C.Desai
\n has  rightly  argued  that  in this case,  on  the  basis  of
\nevidence  on  record  and the circumstances  emerging from the
\nevidence on record it is established that it was a case of transfer
\nof exclusive possession and payment of rent by subtenant to the
\ntenant in chief  is  also  established.  As referred to above in the
\npursish, exhibit 20 filed by the tenant in  chief he admitted that
\nthe revisionist was his subtenant. Mr.Shah has argued that this is
\ncollusive transaction between the parties,  but  rightly the two
\nCourts below have repelled this contention.  The revisional Court
\nwill be reluctant in  substituting  its  own  findings abruptly
\nwithout any evidence that this transaction was collusive transaction.
\nAdmission of the tenant  in  chief  in  pursish  is best evidence
\nagainst  the maker viz.  the defendant no.1 that he had illegally
\nsublet the  suit  accommodation without consent or permission of the
\nlandlord to the revisionist. Admission is the best piece of evidence
\nagainst its maker unless  it  is  explained  to  be  erroneous or
\nmistaken. Since the tenant in chief did not contest  the  suit his
\noffering  any  explanation  that his admission was either erroneous
\nor mistaken did not arise.  In addition to this the  rent  receipts
\nwere  issued  in  the  name  of the defendant  no.1  who  was  said
\nto be paying rent to the landlord.  There is categorical finding
\nrecorded  by the two  Courts  below  that the relationship of
\nlandlord and tenant between the plaintiff and the  defendant no.1  is
\nestablished  and  the defendant no.1 committed default in payment of
\nsix months rent on  the  date  of  service of notice.   If this is
\nso, then the question of revisionist being licensee stands ruled
\nout.    If  the revisionist alleges  to  be in possession then it is
\nfor him not only to disclose but to establish by cogent evidence  in
\nwhat capacity he is in possession.  The payment of rent at the rate
\nof  Rs.250\/-  p.m.    by  the  defendant no.2 to the defendant no.1
\nis also  borne  out  from  the concurrent findings on  record.
\nThis,  therefore, establishes the second ingredient viz.  transfer or
\nexclusive possession for valuable  consideration.    There  is also
\nindication from the evidence on record that the revisionist admitted
\nthat he is carrying on exclusive business in the demised premises
\nand  that the tenant in chief had absolutely no interest in the
\nbusiness.  It therefore, implies that the tenant in chief had parted
\nwith exclusive possession  of the  demised  premises  and  he  had
\nno control over the business and  had  lost  his  interest  in  the
\ndisputed accommodation.    This   also   amounts  to  transfer of
\nexclusive possession in favour of the revisionist.”\n<\/p>\n
11.
\nIn view of above observations made by Apex Court as well as this
\nCourt and considering reasoning and finding given by Courts below
\nwhich found according to law and no error of law committed by Courts
\nbelow which requires interference by this Court while exercising
\npower under Section 29(2) of Rent Act. Therefore, there is no
\nsubstance in present Civil Revision Application. Accordingly, present
\nCivil Revision Application is dismissed. Rule is discharged. Interim
\nrelief, if any, granted earlier stands vacated. No order as to costs.
\nR & P to be sent back forthwith to Courts below.\n<\/p>\n
12.
\n   However, time is hereby granted in favour of petitioner for
\nvacating suit premises for a period of three months from date of
\nreceiving copy of present judgment and order.\n<\/p>\n
13.\tIn
\nview of aforesaid order, Civil Application 4315 of 2002 does not
\nsurvive and disposed of accordingly. Rule is discharged.\n<\/p>\n
[
\nH.K.RATHOD, J. ]<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Sandhi vs Heard on 1 December, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print CRA\/1645\/1999 17\/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1645 of 1999 With CIVIL APPLICATION No. 4315 of 2002 In CIVIL REVISION APPLICATION No. 1645 of 1999 For Approval […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-155492","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSandhi vs Heard on 1 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sandhi-vs-heard-on-1-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sandhi vs Heard on 1 December, 2010 - 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