R. A. MEHTA, J. ( 1 ) THIS Revisional Application by the original defendants is directed against the decree for possession of the rented premises on the ground of non-user under Section 13 (1) (k) of the Bombay Rent Act. The suit was filed on several grounds including the personal and bonafide requirement arrears of rent and non-user. All the other points have been negatived and only on the ground of non-user the decree has came to he passed. ( 2 ) THE claim of the plaintiff is that the suit property was let to the second defendant (petitioner No. 1) prior to 1950 and that suit premises have not been used at all from 1964 to 1971. The suit was filed on 2nd December 1971 Both the courts have held that the plaintiff is entitled to a decree for possession on the ground of non-user of the suit premises by the tenant. ( 3 ) THE learned counsel for the petitioners-original defendants (father and son) has submitted that the finding of the lower courts is illegal and contrary to evidence on record and the onus is on the plaintiff to prove non-user within the period of six months immediately prior to the filing of the suit. On the other hand the learned counsel for the respondent-original plaintiff has submitted that both the courts have given concurrent finding of fact on the question of non-user and come to the conclusion that the defendants have not used the suit premises from 1964 to 1971 and have rightly passed a decree for possession on that ground. It is further submitted that under Section 29 (3) of the Bombay Rent Act there is no ground ma de out for interference in Revision. It is submitted that the findings of the lower court are based on appreciation of evidence and the lower courts have not believed the evidence led by the defendants and therefore this finding of fact is not required to be disturbed. ( 4 ) THE lower appellate court has proceeded to consider the matter in para 7 of the judgment by straightway going to the evidence of the defendant without considering whether the plaintiffs have proved their case. ( 4 ) THE lower appellate court has proceeded to consider the matter in para 7 of the judgment by straightway going to the evidence of the defendant without considering whether the plaintiffs have proved their case. The reason given by the lower appellate court not to believe defendant No. 2 is that his say regarding user of the premises for scrap business is not supported by any reliable evidence and his word has not been believed because he has not produced bill boob account boob and other papers to show that he was doing the business of scrap in the suit premises His explanation that his accounts for the year 1964 to 1971 were destroyed by white ants has not been accepted. It is also found that the defendants had no registration under the Bombay Shops and Establishments Act for the period from 1964 of 1671 and the certificate of registration has been obtained subsequently. It is the that prior to 1972 he had no such certificate of registration and this finding is correct and is based on evidence However from that it would not be possible to come to the Conclusion that during that period the premises were not used for the scrap business Right from 1950 to 1971 there was no such certificate and there is no allegation that during 1950 to 1964 his scrap business was not done. Therefore the absence of certificate under the Shops Act is a neutral circumstance and on that basis on intence could have been regarding non-user. The lower appellate court has also held that the defendants have not examined any other person with whom they had business transaction from 1964 to 1971 and therefore adverse inference has been drawn against them. Witness Mangubhai Maneklal ex. 94 is disbelieved on the ground that he was not named as a witness at earlier sage and the this produced by him showing transactions between 1965 to 1971 were not believed. They are exhs. 96 to 110. The lower appellate court has observed that those bills are such which can be prepared any time. I had a look at those original bills; it is possible to take a contrary view that those bills may not have been subsequently prepared and they are genuine. They are exhs. 96 to 110. The lower appellate court has observed that those bills are such which can be prepared any time. I had a look at those original bills; it is possible to take a contrary view that those bills may not have been subsequently prepared and they are genuine. However the view of the lower appellate court cannot be said to be an impossible view and therefore in Revision this court cannot take a different dew can the one taken by the lower appellate court However that does not mean that the lower appellate court has come to a correct legal Ending. ( 5 ) THE onus to prove non-user is on the plaintiff and the plaintiff cannot succeed on the weakness of the defendant. The plaintiff has examined only one witness Niranjan Becharlal Kansara ex. 42. He has stated that he manages the property of her mother Dhanlaxmiben the plaintiff He has stated that both the defendant are serving and the suitpremises have remained closed since 8 to 10 years. Be has given his evidence in July 1977. In cross-examination he has stated that he did not know if the defendant was a tenant in the suit premises even prior to the purchase by the plaintiff; he has also stated that and his elder brother were managing the property since 4 to 5 years and he did not know that the defendant was a tenant since 22 years. He is residing at Dabhoi and not at Baroda where the suit premises is situate. He has no idea whether he went to the defendant for collecting rent. In para 13 on his deposition he has stated that he did not go to the suit premises and he has not study or experience of scrap business. There is another tenant on the first floor but the witness admits to be having no knowledge and was not able to say if the tenant on the first floor was inducted before 1 1/2 years. He did not know what was the rent; he did not know whether there was any tenant prior to 390 this tenant Indravadan on the first floor. Thus from his evidence it is clear that he does not reside in Baroda where the suit premises are situate. He did not know what was the rent; he did not know whether there was any tenant prior to 390 this tenant Indravadan on the first floor. Thus from his evidence it is clear that he does not reside in Baroda where the suit premises are situate. He does not even know who is the tenant on the first floor of the suit premises prior to Indravadan who had come only 1 1/2 years back. Thus he has no personal knowledge whatsoever regarding non-user by the defendant. Even though the plaintiff has come out with a case that the tenant defendant No. 2 the father is also serving. There is no evidence whatsoever that he has been serving. ( 6 ) ). On the other hand the evidence of defendant No. 2 is very categorical that this business is the only source of livelihood. In cross-examination it was suggested that he was serving with Kansara Panch. However he has denied the same. He has stated that he has been doing honorary work for that Kansara Panch without any remuneration. Thus the fact remains that there is no evidence that defendant No. 2 has been doing any other gainful work or service and it is impossible to believe that for a long period from 1964 to 1971 the defendant would not be doing any business. This circumstance lends support to his version that he had been using this premises for his scrap business. The lower courts have failed to appreciate the nature of this scrap business as a small trader. Witness Niranjanbhai has been managing the property since last 5 years as per his deposition recorded in 1977. Otherwise also he has no personal knowledge and is not residing at Baroda and does not visit the suit premises. Therefore his say regarding non-user is without any merit. Thus the plaintiff has utterly failed to lead any reliable evidence on the question of nonuser. On the other hand the defendants case regarding user is supported by the inherent strong circumstance that he is not shown to have been engaged in any other gainful activity He is a small trader; he does not have the income to pay the income-tax and admittedly there was no electricity in the suit premises till the suit was filed. On the other hand the defendants case regarding user is supported by the inherent strong circumstance that he is not shown to have been engaged in any other gainful activity He is a small trader; he does not have the income to pay the income-tax and admittedly there was no electricity in the suit premises till the suit was filed. In fact the suit premises are a sort of a godown (Vakhar) and he did not have any licence or certificate for doing this business right from 1950 to 1972. That shows that the business was of a very small scale. For such a business it is likely that he did not maintain accounts or did not maintain proper records. His explanation that the account books and bill books were eaten away by white ants may or may not be true and the bills produced by witness Mangubhai at Exhibit 66 to 110 may or may not be reliable. But the fact remains that this defendant is not shown to be engaged in any other business or gainful activity and that strong circumstance clearly lends support to his version that this scrap business in the suit premises is the only source of his livelihood. Compared with the evidence of witness Niranjanbhai for the plaintiff who has no personal knowledge whatsoever the evidence of this defendant at Exhibit 62 clearly proves that the allegation of the plaintiff regarding nonuser is not borne out by evidence on record and therefore the findings of the lower courts are clearly illegal and not according to law. ( 7 ) THE learned counsel for the respondent has relied on the judgment of the Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohmed Haji Latif and Others AIR 1968 SC 1413 and contended that party in possession of best evidence which would throw light on the issue in controversy if witholds it then the court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him and a party cannot rely on the abstract doctrine of onus of proof or on the fact that he was not called upon to 391 produce it. In this case the matter is not decided merely on the question of onus of proof. In this case the matter is not decided merely on the question of onus of proof. Onus of proof gives a proper and legal direction to the appreciation of evidence by the courts of facts ( 8 ) THE learned counsel for the respondent has also relied on the judgment of the Supreme Court in the case of Phiroze Bamanji Desai v. Chandrakant M. Patel and Others AIR 1974 SC 1059 . In that case the Supreme Court has held that the High Court can interfere with the decision of the lower court under Section 26 (3) only if there is miscarriage of justice due to a mistake of law and the High Court cannot reassess the value of the evidence and interfere with a finding of fact merely because it thinks that the appreciation of the evidence by the lower court is wrong and the court should have reached a different conclusion of fact from what it did. Me Supreme Court further observed that the view of the lower court regarding burden of proving greater hardship was on the tenant was not correct and the finding arrived at on the question of greater hardship was vitiated by mistake of law and therefore the High Court was justified in interfering with the finding and arriving at its own finding. In the present case also the appellate court has not discussed the evidence of the plaintiff and straightway proceeded to consider the evidence of the defendants as if the onus was on the defendants to prove the issue regarding non-user. In view of this discussion the decree for possession on the ground of non-user cannot be sustained and has to be reversed and the suit for possession is required to be dismissed. It is therefore not necessary to go into the question whether the suit filed by the present plaintiff alone was maintainable she being only one of the co-owners ( 9 ) IN the result the Revision Application succeeds and rule is made absolute by quashing and setting aside the decree for possession passed by the courts below. No order as to costs. Rule made absolute .