JUDGMENT - G.N. VAIDYA, J.:---On June 1, 1962, the respondent, Babu Sukhdevsing, filed a suit against the petitioner, Raju Ramappa Shetty, in the Court of the Small Causes at Bombay, to recover possession of the shops bearing Nos. 3, 4 and 5 on the ground floor of the building known as Raghuraj Bhavan on Gokhale Road South, Dadar, Bombay 28, and for costs. The plaintiffs case as made out in the plaint was briefly as follows :--- The plaintiff is the owner of the suit building and he let out shops Nos. 3, 4 and 5 on the ground floor of the said building to the defendant with effect from March 1, 1960 on a monthly rental of Rs. 311/- under an agreement in writing, as per the terms and conditions of that agreement. The defendant was to pay the monthly rent in advance before the 10th of each month and he agreed to pay electric meter charges and the bill for electric energy consumed by him. He also undertook not to burn firewood in the premises and not to keep the animals thereon. He also agreed to pay for hire of water meter as also for the water charges charged by the Municipality without any deduction from the monthly rent payable by him. He undertook not to make any alterations or fixtures without the written consent of the landlord. One of the terms provided that the defendant would not sub-let or transfer the premises whole or in part to anyone else during his tenancy but hand over the same to the landlord, when the desired to vacate. The agreement was on a stamp paper of Rs. 1.50 Ps. The plaintiff alleged that the defendant failed and neglected to pay the rent in respect of the premises from August 1, 1961. The defendant was alleged to have contravened the provisions of the Bombay Rent Act as well as the express terms and conditions of the tenancy by sub-letting four portions of the said premises to a tailor, a Panshopwalla and a book-stallwala and a coirman. It was further alleged that the defendant in order to make out separate shops for the said four persons put up without the consent of the plaintiff partition walls and other fixtures in the nature of permanent structures. The coirman had vacated in or about February 1962. It was further alleged that the defendant in order to make out separate shops for the said four persons put up without the consent of the plaintiff partition walls and other fixtures in the nature of permanent structures. The coirman had vacated in or about February 1962. The plaintiff orally demanded the arrears of rent and called upon the defendant to remove the sub-tenants and the permanent fixtures. The defendant did not pay any heed, but in order to forestall the demand for arrears of rent addressed a letter dated March 7, 1962 through his Advocate alleging, firstly that the rent was being charged from him for the said premises was excessive and secondly that the plaintiff had assumed him at the time of letting out the said premises to him that he would reduce the rent. The plaintiff denied these allegations as false. The plaintiff then terminated the tenancy of the petitioner through his Advocate on March 12, 1962 by addressing a notice through his Advocate calling upon the defendant to pay all the arrears of rent from August 1, 1961 and alleging that the defendant had unlawfully sub-let four portions of the premises as stated above. The defendant neither vacated the suit premises nor paid the arrears of rent demanded. The defendant replied to the said letter of the plaintiff by his Advocates letter dated April 23, 1962 informing the plaintiff that he had filed an application for fixation of the standard rent, without even denying the allegation of sub-tenancy. The plaintiff submitted that having regard to the above facts the defendant had forfeited the protection of the Bombay Rents, Hotel and Lodging House Rents (Control) Act, 1947 on the ground of non-payment of arrears of rent, unlawful sub-letting and erection of permanent fixtures in the suit premises in breach of the terms of tenancy. The plaintiff thus claimed to be entitled to recover possession of the premises. The suit was resisted by the defendant by filing a written statement contending that although it was true that the suit premises were let out to him, the terms and conditions mentioned in the agreement were not known to him, as the defendant had only signed certain writing before its execution and put the plaintiff to the strict proof of the terms of tenancy. He also denied non-payment of rent and contended that as the contractual rent was excessive, he made an application for fixation of standard rent, which application No. 528/SR of 1962 was pending when the written statement was filed. The defendant denied having sub-let the premises. He stated that the tailor, book-seller and panshopwalla were his licensees. He denied having built partition walls or having put fixtures of permanent nature as alleged. He claimed to have refused the demand made by the landlord on the ground that the demand were unwarranted and unjustified and put the plaintiff to the strict proof of termination of the contractual tenancy. He denied that he was deprived of the protection of the Bombay Rent Act. In support of the plaintiffs case the plaintiff examined his architect, one K.T. Divecha, who had taken measurements after inspecting the premises on June 19, 1962 and prepared a plan which is produced in the case as Exhibit 8 showing portions marked No. 1 as having been sub-let from the shop area to the tailor and two stalls marked Nos. 2 and 3 of which area HATCHED is encroachment. The rest of the shop is shown to be Vishwa Bharati Lunch and Tea House. It is clear from the map that the area alleged to have been occupied by the bookstall-keeper, tailors shop and the pan-shop are just small portions which are usually to be found near many of the hotels particularly Hindu hotels in the city of Bombay. The only other evidence led by the plaintiff was that of Damji Dayal Motani, who claimed to be plaintiffs accountant for 11 years; managing the affairs of the building since the building work was commenced in 1959 and was completed in February 1960. He produced the Agreement dated February 26, 1960 at Exhibit A and the notices between the parties. In the examination-in-chief he stated that the defendant was doing hotel business in the premises when he gave evidence in January 1965; and he had given one portion, after partitioning; it to a panshop, one portion to a bookseller, one portion to a tailor and one to a person selling ropes. He further stated. "The tailor himself closes his shop. He himself looks the shop. The panwalla himself closes his shop by the night time. He further stated. "The tailor himself closes his shop. He himself looks the shop. The panwalla himself closes his shop by the night time. The book-seller himself was closing his shop : Beyond these partitions and stalls, no changes were made in the shop by the defendant." In the cross-examination, however, the witness admitted : "The wooden partition is fixed in the walls. The partition can be removed. I visit the building twice or thrice in a week in the morning at about 8 a.m. or between 6 and 9 p.m. In the evening I go to make inquiries. I do know to whom the tailor hands over the key. I have not seen whether the partition is fixed to the walls by any nails. I do not know whether there is an excess from the tailors shop to the defendants premises. There was no necessity for me to go inside the premises. What moneys the defendant recovers from those persons was only heard by me from others. As those persons are sitting I say that they are the sub-tenants. The defendant can use the lavatory. The tailors shop is in less than one-fourth of the entire premises in the suit. The defendant started the hotel business after taking the premises. It is not true that the defendant was prevented from using the lavatory and W.C. block. I do not know that the plaintiff Prohibited the defendant from entering the shop. The application for the fixation of standard rent is still pending. The agreement Ex. B does not bear the signature of the plaintiff but it bears the signature of his constituted attorney." At that stage the plaintiffs Advocate stated that the plaintiff was not pressing the ground of erection of permanent structures. The only person examined on behalf of the defendant was the defendant himself who stated on oath that he had not let out any portion of the premises to any one and that he had constructed a stall for a tailor with his own machine and also a panshop and had allowed the two persons to conduct the panshop and the tailoring shop; and there was also a book stall keeper, who had left. However, there appears to be some mistake in recording his evidence in the cross-examination, when he is recorded to have said "my hotel is closed since three and half years". However, there appears to be some mistake in recording his evidence in the cross-examination, when he is recorded to have said "my hotel is closed since three and half years". It was not even the plaintiffs case that he was not doing his hotel business in the premises. He said : "A portion of the premises was given to the tailor about 2 years back. I gave the premises to the tailor about one to one and a half years after the closure of my business. I am residing in the suit premises with my two sons. The rest of my family is at native place. There is an entrance to the tailors shop from the road also." "A partition was prepared for preparing the tailors shop. There is a plywood partition. That portion of the tailors shop is at one end of my shop. Two partitions at right angles to each other have been prepared. On one side there is a wall and there is a frontage from the road side. There is a collapsible door in front of the tailors shop. The tailor is in Bombay. But he is attending another shop and his servants attend the shop in the suit premises. He has got two servants. The articles in the tailors shop including the machine belong to me. There is no writing about it. The tailor pays the salary of his workmen. I again say that one sewing machine is mine and another one belongs to the tailor. There is my cupboard also. I do not know the make of the machine. It is an old machine. I do not know tailoring. I purchased the sewing machine from one Baniya whose name I do not remember. I purchased the same for Rs. 45/-. I have no receipt for that. There was an agreement with the tailor that I would supply him one machine. But there is no writing. There was an agreement in writing when the premises were first given to the tailor. I give in writing in his note book on receipt of amounts from the tailor. The tailor has a family. He lives in the opposite building. His servants reside in the suit premises. No amount is received for that purpose. I have no connection with the profit or loss of the tailors business. I give in writing in his note book on receipt of amounts from the tailor. The tailor has a family. He lives in the opposite building. His servants reside in the suit premises. No amount is received for that purpose. I have no connection with the profit or loss of the tailors business. At present I have not got the key of the tailors shop. All the implements and the clothes remain in the tailors shop. The name of the tailor is Venkataramanna. I do not know English, except for putting my signature. Before the premises were given to me the landlord allowed the Panwalla to have his shop. But the bill was in my name. The book-seller came there about one and half years after I took the premises. He conducted the book-stall for 5 to 6 months. I had not given any part of the premises to any Rassiwala. Mr. Deodhar was my Advocate at the stage of correspondence. I erected the panshop. The book-stall was also prepared by me. Originally the book-stall was outside the shop to the extent of 1 foot and the rest was inside the shop. "Now the portion which was outside has been closed. The book-seller had agreed to pay Rs. 30/- to me. But he had not paid any amount to me. There was an agreement in writing. But I have not got it now. The book-seller used to close the book-stall in the evening." In the re-examination the witness stated that he had not been doing the hotel business as the amenities of water and lavatory were stopped. Here again, Mr. Shetty, the learned Counsel appearing for the defendant says that there was some mistake in taking down the deposition as the defendant had to make a complaint in respect of non-supply of essential amenities and until they were restored, the hotel had to be closed, but at the time when the suit was filed and at the time when the plaintiffs witness gave evidence and the defendants gave evidence, actually the hotel business was in fact being run. Neither of the parties examined any other witness like a neighbour or a servant or anyone else to prove the trustworthiness of the said allegations. Neither of the parties examined any other witness like a neighbour or a servant or anyone else to prove the trustworthiness of the said allegations. The learned trial Judge by this judgment and decree dated January 20, 1965 decreed the plaintiffs suit, firstly on the ground that the defendant was not ready and willing to pay the standard rent and permitted increases, and secondly on the ground that the defendant had unlawfully sub-let the suit premises as alleged by the plaintiff; relying on what the learned Judge described as exclusive possession of the tailor and the Panshopwalla and also the absence of any denial of the defendant in the written statement that the coirman was not his sub-tenant. He held that the terms and conditions of the agreement were not properly proved. The judgment and decree dated January 20, 1965 were confirmed in appeal filed by the defendant on November 30, 1973. The Appellate Bench in the Small Cause Court, however, applied the provisions of section 12(3)(b) of the Rent Act and found that having regard to the application for fixation of standard rent which was pending while the suit was filed and also having regard to the deposits made by the defendant no decree for possession could be passed against the defendant on the ground of non-payment of rent. The said finding of the appellate Bench was not and could not be challenged before me. The defendant, however, by the Special Civil Application under Article 227 of the Constitution challenged the other findings of the two courts below about sub-letting. He stated in the petition filed in this Court on November 9, 1972 that the agreement between him and the tailoring shop keeper expired during the pendency of the appeal; and thereupon the tailor left the part of the premises occupied by him and this fact was not brought to the notice of the appeal Court, even though the petitioner had informed his Advocate about the same; and further said that the book stall-keeper was not in the premises at the hearing of the suit and there was no evidence at all on record to show that there was any sub-letting to the coirman. It is common ground that the plaintiff had given up the case of sub letting to the panshop vendor. It is common ground that the plaintiff had given up the case of sub letting to the panshop vendor. Though this petition was filed as far as back as in 1972 the landlord did not file any affidavit in reply till the matter was actually heard on September 3, 1976 and remained part-heard on that date. The affidavit in reply in tendered today but it was not even served on the petitioner, although under Chapter XVII Rule 11 of the High Court Appellate Side Rules, 1960 it is provided: "An answer to rule nisi showing cause against such application shall be made by filing at least two days before the returnable date of the rule an affidavit in the office of the Registrar, a copy whereof shall be served upon the applicant." When this was pointed out to Mr. Parikh, the learned Counsel for the respondent-landlord, he frankly stated that the affidavit in reply need not be taken into consideration. Mr. Shetty, the learned Counsel for the defendant-tenant has submitted that the very fact that when this petition was filed, the tailor had left the premises and the bookseller had also left the premises during the hearing of the appeal showed that the dominant intention behind the agreements between the defendant and those persons was a create a leave and licence and not a lease, as held by the two courts below. The contention deserves to be upheld having regard to the facts and circumstances of the case and particularly having regard to the small portions occupied by the former book-stall and the tailoring shop, the like of which are, more often that not, seen in or around Hindu restaurants almost all over Bombay, where even a little accommodation is difficult to obtain without paying heavy premiums of rents or compensations. The defendant-petitioner has stated on oath that the tailor had already left the premises and I have no reason to disbelieve it because he could not have made a statement on oath, unless the tailor had in fact left the premises in 1972; and it would have been very easy for the plaintiff to file at least an affidavit or two of the neighbours who would have seen the tailor working in the premises thereafter. The two courts below have held that there was subletting to the coirman, although the existence of the coirman was not proved by any independent evidence by the plaintiffs witnesses. The two courts have also taken a wrong view of the onus of proof, inasmuch as it is for plaintiff to establish sub-letting; and it cannot be said to be established merely because the tailor or the book-stall keeper is allowed to use some parts of the premises of the restaurant, when those parts are very small portions of the entire premises, which contained to be in possession of the tenant, all along a lunch home and a tea house in the premises. These circumstances have been completely ignored by the two courts below who relied merely on the admission of the defendant that the tailor was in the premises. There is nothing to show that any attempt was made by the plaintiffs or his Advocate during the hearing of the suit to call upon the defendant to produce any agreement between him and the tailor or the bookstall keeper. In the absence of any such attempt or in the absence of any other witness all that was before the two courts below was the evidence of the plaintiffs witness who knew nothing about the relation and the defendant who denied such thing. The evidence of the plaintiffs witness stated that he had inferred sub-tenancy from the mere presence of some persons, while all along the defendant was running his restaurant. The two courts below completely ignored the provisions of section 105 of the Transfer of Property Act which lays down : "A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised of or money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transfer or by the transferee, who accepts the transfer on such terms." There was nothing before the courts below to show that there was any intention to transfer any right to enjoy the property given to the tailor or to the book-stall vendor made for a certain time express or implied or in perpetuity. It may be that the bookstall vendor and the tailor were allowed to sit on payment of certain licence fees, as claimed by the defendant. It was for the plaintiff to establish by proper evidence that what was transferred to them was really a right to enjoy the property to the exclusion of the tenant. There was no evidence whatsoever on record to support the finding of the two courts that there was any sub-tenancy or that the intention of the defendant when he allowed the tailor and the bookstall keeper was to transfer the right to enjoy the premises without his control over the same. It was contended by Mr. Parikh that the burden of proof lay on the tenant to establish his relation with the tailor or the book shop keeper, as under section 106 of the Evidence Act when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him, but as the plaintiff himself had not proved anything to show sub-tenancy except the presence of those two persons, as admitted by the plaintiffs witnesses, there was no need for the defendant to establish his relations with the tailor and the shop-keeper by evidence more than his own evidence on oath denying sub-tenancy. It is, therefore, patent that the two courts below have arrived at a conclusion that the tenant had sub-let to the coirman without any evidence on record. The two courts have also wrongly held that there was subletting to the tailor, panshopwalla and the bookstall keeper without any evidence from which any reasonable person could infer an intention on the part of the defendant to let out the premises to them, as it is possible to believe that when the defendant was running a lunch home and a tea house in the premises and he claimed to have allowed them to conduct their shops, he would lose control over those premises. Much reliance was placed on the cross-examination of the defendant, in the course of which a statement has been loosely recorded that for the last three and half years this restaurant was closed. Much reliance was placed on the cross-examination of the defendant, in the course of which a statement has been loosely recorded that for the last three and half years this restaurant was closed. The two Courts have also relied on this aspect of the matter without realising that there was some mistake in recording of his statement, as can be seen from the admission of the plaintiffs witnesses that the defendant was running a restaurant since the time he took possession of the premises and also at the time the plaintiffs witnesses gave evidence in Court. It was only a grievance of the defendant that sometime before he gave evidence that water supply, W.C. and other amenities were not available to him and, therefore, he had closed his restaurant till they were restored. This explanation, which Mr. Shetty has tried to give, makes the defendants evidence understandable. I find this explanation reasonable, having regard to the plaintiffs evidence and also the totality of the evidence of the defendant himself. The two courts have totally misunderstood the evidence and have given undue importance to a patently mistaken statement or the record of the statement, which was not even relevant for considering whether the intention of the defendant when he allowed the tailor and the bookstall keeper to run their shops in the premises was to create a sub-lease or a lease. The very fact that the bookstall keeper and the tailor have left the premises shows that they had no interest in the premises as such and all that was done was to grant the licence to them to conduct the shop in the premises, while the defendant carried on his lunch home and tea house in the premises. The very fact that the bookstall keeper and the tailor have left the premises shows that they had no interest in the premises as such and all that was done was to grant the licence to them to conduct the shop in the premises, while the defendant carried on his lunch home and tea house in the premises. The two courts ought to have applied the provisions of section 52 of the Indian Easements Act, 1882, which lays down : "Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immoveable property of the grantor, something which would in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property the right is called a licence." The finding of the two courts that the facts and circumstances showed that the petitioner had unlawfully sub-let the premises must, therefore, be set aside on the ground that the two courts ignored the provisions of section 105 of the Transfer of Property Act and section 52 of the Indian Easements Act, 1882 and misread the deposition of the defendant and further paid no heed to the fact that the plaintiff had produced no evidence on record to prove that there was any intention to sub-let the premises, to the tailor, the both shop-keepers or the coirman. Mr. Parikh, the learned Counsel for the respondent-landlord very strongly relied on the decision of the Supreme Court in (Gajanan Dattatray v. Sherbanu Hasand Patel and others)1, A.I.R. 1975 S.C. 2156 and contended that the fast that the tailor had left the premises as stated in the petition was totally irrelevant for considering whether there was sub-letting or whether the two courts were right in relying on the presence of the tailor and the bookstall keeper and the evidence on record for concluding that there was sub-tenancy. It is true that in the case cited above, where the rooms were in fact sub-let and they were vacated by the tenant, it was laid down : "It cannot be contended that the sub-letting must continue at the date of the suit for passing the decree for eviction". It is true that in the case cited above, where the rooms were in fact sub-let and they were vacated by the tenant, it was laid down : "It cannot be contended that the sub-letting must continue at the date of the suit for passing the decree for eviction". The case, however, is distinguishable because in the present case there was no sub-letting at all and the finding recorded by the two courts are findings without any basis on record. It was then contended by Mr. Parikh that having regard to the decision in (Gopal Krishnaji Ketkar v. Mohammad Haji Latif and others)2, A.I.R. 1968 S.C. 1413 it was for the defendant to establish his exact relationship with the tailor and the bookstall keeper and for that purpose to produce the agreement, if any, which he claimed to have had with him; and if he had failed to produce the best evidence, it is the duty of the Court to draw an adverse inference against the defendant. As already stated above was not necessary for the defendant to produce any document as the plaintiff had failed to establish by leading evidence to show that the tailor and bookstall keeper where sub-tenants of the plaintiff. At the trial the only fact relied upon by the plaintiff for showing that they were in the premises was the fast that they left the premises during the pendency of suit. The very fact that the bookstall keeper and the tailor left the premises during the pendency of the litigation shows that their presence was temporary as licensees. Therefore, even the above cited case relied upon by Mr. Parikh cannot help the plaintiff in the facts and circumstances of the case. Mr. Parikh also contended that the question as to whether an occupier is a licensee or tenant is a question of fact depending upon the degree of control, which the licensor or lessor is able to establish. He relied in this connection on (Associated Hotel of India Ltd.v. S.B. Sardar Ranjit Singh)3, A.I.R. 1968 S.C. 933 and submitted that in that case it was laid down : "In a suit by the landlord for eviction of tenant from hotel building on the ground of sub-letting the landlord discharged the onus by leading evidence showing that occupants were in exclusive possession of apartments for valuable consideration. But the tenant chose not be rebut this prime facie evidence by proving and exhibiting relevant agreements on which apartments were occupied though these documents formed part of his case,.....that the tenants had no right to withhold these documents from scrutiny of Court....." Even this case is distinguishable because as the tailor and book-seller had already left the premises the only reasonable inference which one can draw was that they were the licensees and not sub-tenants. In view of what is stated above, it is unnecessary to refer to some other decisions of Kerala and Delhi High Courts reported in All India Rent Control Journal cited by Mr. Parikh relating to the burden of proof in such cases. Lastly, Mr. Parikh strenuously urged that in view of the decision of the Supreme Court in (Smt. Krishnavati v. Shri Hans Rai)4, A.I.R. 1974 S.C. 280; (Maruti Bala Raut v. Dasharath Babu Wathare)5, A.I.R. 1974 S.C. 2051 and (Babhutmal Raichand Oswal v. Laxmibai R. Tarte)6, A.I.R. 1975 S.C. 1295 it is not open to this Court to interfere with the finding of the two courts that what was intended by the defendant when allowing the tailor, bookstall keeper and the coirman was to create sub-tenancy. It is true that the extraordinary powers of this High Court under Article 227 are meant only for enforcing the rule of law and not for interfering with findings of facts recorded by the lower courts, whose decisions are made final under the statute, under which they record those findings, as under the Bombay Rent Act. However, as already stated above, the two courts below have ignored the provisions of the Transfer of Property Act and the Indian Easements Act. They have also ignored the facts and circumstances relating to the presence of the defendant and also the facts and circumstances, which clearly show that there was nothing by way of any intention to lease proved by the plaintiffs witnesses. In these circumstances, I find that this is one of those appropriate cases, where this Court should interfere under Article 227 and set aside the finding recorded by the two courts below and the decrees passed by them evicting the defendant tenant. In the result, the rule is made absolute. The amounts deposited by the tenants in the trial Court may be withdrawn by the plaintiff, subject to adjustments of the arrears of rent and costs. In the result, the rule is made absolute. The amounts deposited by the tenants in the trial Court may be withdrawn by the plaintiff, subject to adjustments of the arrears of rent and costs. I am told that the standard rent application field by the petitioner-defendant, was dismissed and the contractual rent was determined as the standard rent of the premises. In view of the facts and circumstances of the case, therefore, although the petitioner-defendant succeeds he must pay the costs of the respondent throughout. The judgement and decree passed by the Appellate Bench on November 30,72, and by the trial Judge on January 20,1965 are set aside and quashed and the respondent-plaintiffs suit for eviction is dismissed. -----