JUDGMENT - S.M. HAJARNAVIS, J.:---This is a petition under Article 227 of the Constitution against the decision given by the District Judge, Poona, dismissing the tenants appeal against the order passed by the Additional Judge, Small Causes Court, Poona, directing him to deliver possession of the suit premises to the respondent. It is not necessary for the purposes of this petition to enumerate all the facts in details. It is enough to state that the suit premises consisted of two rooms, one of which admeasures 9½ X 9 and the other admeasures 4½ X 9. The total area under the occupation of the tenant was 126 sq. feet. These premises are situated on the first floor of a house in Budhwar Peth, Poona. It is not disputed that the tenancy commenced in 1952 and that the premises were let out for the purposes of residence. It is also not disputed that the petitioner has constructed a pot mala in 1962 in the premises and he started preparing polythene bags from polythene sheets on the pot mala. It appears that in 1964, the petitioner also started a concern known as "Commercial Corporation" doing commission agency business. Initially when the board of the corporation was put up, the name of his brother-in-law Shri V.K. Vakharia was shown as a proprietor on the board but soon thereafter the name of Shri Vakharia was removed from the board. This Vakharia is the brother-in-law, viz., the brother of the wife of the petitioner. It is also not disputed that there are 8 members in the family of the petitioner. It is the contention of the petitioner that he still continues to live in the suit premises. The respondent terminated the tenancy of the petitioner and asked him to vacate the premises on various grounds, viz., (1) that the petitioner has wrongfully sub-let the suit premises; (2) that he had constructed a permanent structure on the suit premises without the written permission of the landlords. (3) that the petitioner has acquired vacant possession of suitable residence and (4) that the petitioner has effected the change of user viz., that he has been using the suit premises for commercial purpose, while the premises were let out for the residential purpose. The petitioner did not comply and the respondent thereafter filed a suit against the petitioner claiming possession on the four grounds enumerated above. The petitioner did not comply and the respondent thereafter filed a suit against the petitioner claiming possession on the four grounds enumerated above. The suit was resisted by the petitioner and the trial Court framed the necessary issues and the parties led evidence in their support. The trial Judge, after considering all the evidence, came to the conclusion that the respondent has filed to prove that the petitioner had unlawfully sub-let the suit premises and that he had erected any permanent structure or that he had acquired any alternate suitable accommodation for his residence. He, however, held that the suit premises were initially let out to the petitioner for the purpose of residence and they were being used for commercial purposes and, therefore, held that the respondent was entitled for a decree for possession under section 13(1)(a) read with section 108(o) of the Transfer of Property Act. He, therefore, decreed the plaintiffs suit on that ground. The petitioner filed an appeal in the District Court which was heard by the District Judge who affirmed the findings recorded by the trial Court and dismissed the petitioners appeal. It is against this judgment that the present petition has been filed. Mr. Gangal, the learned Counsel for the petitioner, urged that both the courts below have committed an error in decreeing the plaintiffs suit on the ground of change of user. He submitted that the petitioner still continues to reside in the premises. The District Judge has not recorded the finding that the petitioner is not living there. The District Judge has committed an error in holding that the front room was mainly used for business purposes. Mr. Gangal submitted that the learned Judge recorded the finding without discussing the evidence. He also submitted that the learned Judge has committed an error in placing the burden on the petitioner to prove that the preparation of polythene bags was an ancillary business and that be earned his livelihood by some other vocation and preparation of the bags was a pursuit in leisure to supplement the income. He, therefore, urged that the judgments and decrees passed by both the courts below deserve to be set aside. Mr. He, therefore, urged that the judgments and decrees passed by both the courts below deserve to be set aside. Mr. Agarwal, the learned Counsel for the respondent, urged that the findings recorded by the courts below regarding sub letting or on the issue of the tenant securing alternative accommodation should be set aside and the plaintiffs claim should be decreed also on the ground that the tenant had sub-let the suit premises and also on the ground that the tenant had acquired alternate suitable accommodation. It is not possible to accept the contention of Mr. Agarwal on both these grounds. So far as the acquisition of vacant possession of suitable residence by the petitioner is concerned, it is true that the tenant has acquired premises at Ganesh Peth, but the petitioner has stated that his eldest son who is married is staying there with his family and the other members of his family still continue to reside in the suit premises. It is not shown that the premises at Ganesh Peth were sufficient for the family of the petitioner. Both the courts below have recorded a finding that acquisition of the premises at Ganesh Peth cannot be said to be acquisition of vacant possession of suitable residence. So far as sub-letting is concerned, the only ground Mr. Agarwal urged in support of his argument for reversing that finding is the putting up of the board by the petitioner on which his brother-in-laws name has been shown as a proprietor. The petitioner has given explanation why the name of the brother-in-law is shown. Merely putting up of a board will not prove that the petitioner has sub-let the premises. It may be that the petitioner may have allowed his brother-in-law to do the business along with him or may have allowed him to conduct his business there, but that could not establish that the suit premises were sub-let by the petitioner. There is no evidence worth the name to show that the petitioner has left the suit premises and had handed over the possession of the suit premises to his brother-in-law. That being so, both the courts below were right in holding that the suit premises were not sub-let by the petitioner to his brother-in-law. That takes me to the main ground advanced by the petitioners Counsel. That being so, both the courts below were right in holding that the suit premises were not sub-let by the petitioner to his brother-in-law. That takes me to the main ground advanced by the petitioners Counsel. It is well-settled that it is for the plaintiff to prove that the tenant is not using the property for the purpose for which it was let out. The plaintiff has filed this suit on the ground that the premises were let out to the petitioner for the purpose of residence and that he has been using them for commercial purpose, viz., for preparing polythene bags and for doing his commission agency business. The petitioner has also admitted that the suit premises were let out, for his residence and that he had been using the premises also for preparing polythene bags and doing his commission agency business. He is using the premises mainly for the residential purpose and he still continues to use them as residence. The law on this point has been very well settled by a recent decision of the Supreme Court in (Babhutmal Raichand Oswal v. Laxmibai R. Tarte and another)1, A.I.R. 1975 S.C. 1297 where it is observed : "The burden was on the respondents to make out a case under Clause (a) or Clause (k) of sub-section (1) of section 13 by establishing that the dominant or primary user of the shop by the appellant was for residence and not business and there was therefore change of user of the shop for a purpose different from that for which it was let." In that case the premises were let out for shop and the allegations of the landlord were that the tenant was using the premises for residence and, therefore, there was a change of user. After making there observations, the Supreme Court observed that on failure of the landlord to discharge that burden, the suit should have been dismissed by the trial Court. They have also observed that in view of that fact that the courts below have decreed the plaintiffs claim inspite of the fact that the plaintiff has not discharged the burden, the petition under Article 227 of the Constitution ought to have been allowed by the High Court. This is exactly what was happened in this case. They have also observed that in view of that fact that the courts below have decreed the plaintiffs claim inspite of the fact that the plaintiff has not discharged the burden, the petition under Article 227 of the Constitution ought to have been allowed by the High Court. This is exactly what was happened in this case. Both the courts below have wrongly placed the burden on the petitioner to prove that he had not made any change in the user of the premises. The learned District Judge, after discussing the evidence, observed in paragraph 18 of the Judgment : "But it is worthy to note that in the instant case the tenant is utilising, to speak literally, the front room, which is a major part of the demised premises for carrying on his business. That business appears to be a means of earning his livelihood. The tenant has no where told the Court that this was something ancillary and the principal place of business being elsewhere, nor has he said that he earns his livelihood by some other vocation and preparation of plastic bags in a pursuit in leisure to supplement the income." In my view, these observations clearly show that the learned District Judge wanted the petitioner to prove what he was doing there was not a principal source of business. The learned Judge wanted the petitioner to show that his principal business was something else and that the preparation of polythene bags was his ancillary business. Asking the petitioner do what the learned Judge wants is totally unwarranted. As observed earlier, it was for the plaintiff to show that the tenant has effected a change in user of the premises and on his failure to do so his suit must fail. There is no evidence to show that the petitioner has discontinued to reside in the suit premises. It is his case that he has been staying there with his family and only his eldest married son has gone to Ganesh Peth to live separately. That being so, the learned Judge has committed an error, apparent on the face of record, in holding that the petitioner has effected a change of user. The learned District Judge should have also seen that the decision in (Laxman v. Balkrishan)2, A.I.R. 1935 Bom. 397 was applicable to the facts of the case. That being so, the learned Judge has committed an error, apparent on the face of record, in holding that the petitioner has effected a change of user. The learned District Judge should have also seen that the decision in (Laxman v. Balkrishan)2, A.I.R. 1935 Bom. 397 was applicable to the facts of the case. In that case the suit premises were let out for the purpose of residence, but the tenant started doing tailoring business also. The landlord sought to evict the tenant on the ground that he is using the premises for the purpose other than for which they were let out. The Division Bench of this Court in the above-mentioned case has observed : "If, then, as a matter of fact the defendant and his family had been residing on the premises, meaning thereby that they slept there and took their meals there, the mere fact that during the day time defendant worked as a tailor on the same premises, would not prevent it being said that the premises were being used as a dwelling house." The learned Judge ought to have followed the law laid down in the decision. The facts of that case are similar to the facts of this case. Mr. Agarwal, then, urged that these are proceedings under Article 227 of the Constitution and the High Court should not interfere in the findings recorded by the courts below. He relied on the decision of the Supreme Court cited above. It is true that the Supreme Court has observed that the High Court should not interfere with the findings of facts, but I am not interfering with the findings of facts after re-appreciating the evidence. In this case, both the courts below have not applied the law as laid down by the Supreme Court in that case and committed an error apparent on the face of record. The Supreme Court in that case itself has observed that on the basis of similar findings the petition should have been allowed by the High Court and the High Court should have quashed the judgments and decrees passed by the courts below and this is exactly what I am doing in the present case. In the result, the judgments and decrees of both the courts below are quashed and the suit of the respondent is dismissed with costs. In the result, the judgments and decrees of both the courts below are quashed and the suit of the respondent is dismissed with costs. The petition is allowed and the rule is made absolute with costs. -----