ORDER N.D. Ojha, J. - The petitioner is the landlord of a shop of which Sri Nanak Chand, respondent No. 3, is the tenant. A suit being Suit No. 443 of 1970 was instituted by the petitioner against respondent No. 3 for his ejectment from the said shop on the ground that he was a defaulter in the payment of rent as also on the ground that he had sublet portions of the shop in question to various persons. A decree for recovery of arrears of rent and mesne profits was also prayed for. The suit was contested by respondent No. 3, inter aiia, on the grounds that he was not a defaulter in payment of rent and that he had never sub-let any portion of the shop. According to the said respondent, the persons, who were alleged by the petitioner to be the sub-tenants, were indeed his partners in the business carried on by him. The Judge Small Cause Court, after hearing the parties and on the basis of the evidence produced by them, recorded a finding against the petitioner so far as his plea that respondent No. 3 was a defaulter in payment of rent is concerned. On the question of sub-tenancy, however, the Judge Small Cause Court, respondent No. 2, held in favour of the petitioner and on the finding that respondent No. 3 had sub-let portions of the shop in question to various persons, inter alia, decreed the suit for ejectment on 28th April, 1977. Aggrieved by the decree, respondent No. 3 preferred a revision before the District Judge under section 25 of the Provincial Small Cause Courts Act. This Revision was allowed by the Sixth Additional District Judge, Bulandshahr, respondent No. 1, on 9th February, 1979. It is this order of respondent No. 1 which is sought to be quashed in the present writ petition. 2. It was urged by counsel for the petitioner that the finding recorded by respondent No. 2, namely, Judge Small Cause Court. Bulandshahr. that respondent No. 3 had sub-let portions of the shop to various persons was essentially a finding of fact and could not be reversed by respondent No. 1 in a revision under section 25 of the Provincial Small Cause Courts Act. 3. Bulandshahr. that respondent No. 3 had sub-let portions of the shop to various persons was essentially a finding of fact and could not be reversed by respondent No. 1 in a revision under section 25 of the Provincial Small Cause Courts Act. 3. For respondent No. 3, on the other hand, it has been urged by his counsel that the finding of respondent No. 2 relied on by counsel for the petitioner was not a valid finding in the eye of law and consequently no exception can be taken to the procedure adopted by respondent No. 1. 4. Having heard counsel for the parties, I am of opinion that, in so far as respondent No. 1 had taken the view that the finding of respondent No. 2 on the question whether respondent No. 3 had sublet any portion of the shop in dispute, was not sustainable in law his view is correct. A perusal of the order of respondent No. 2, Judge Small Csuse Court, indicates that after referring to the evidence produced by the parties he held that there was a presumption that respondent No. 3 had sub let shop to the persons mentioned by the petitioner. He then proceeded to hold that the burden to rebut that presumption lay on respondent No. 3 and that he had failed to discharge that burden. After so holding he recorded a finding that in these circumstances it had, prima facie, been established that respondent No. 3 had sub let the shop in dispute. to Ram Swarup and another v. Ram Niwas, 1968 A.L.J. 289. it has been held that in a suit by the landlord to eject his tenant on the ground that he had sub-let the accommodation let out to him, the burden lies on the landlord to establish sub-tenancy. A decree for ejectment of respondent No. 3 could consequently be passed in favour of the petitioner only if a finding was recorded that the petitioner had succeeded in establishing that respondent No. 3 had sub-let the shop in dispute. The issue on this point could not be decided by raising a presumption or by holding that the petitioner had prima facie succeeded in proving sub-tenancy. Further, before holding that it was a case of sub- tenancy, a finding should have been recorded that ingredients for grant of a lease were established. The issue on this point could not be decided by raising a presumption or by holding that the petitioner had prima facie succeeded in proving sub-tenancy. Further, before holding that it was a case of sub- tenancy, a finding should have been recorded that ingredients for grant of a lease were established. As held in Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 Supreme Court 1263. the real test is the intention of the parties. If an interest in the property has been created, it is a lease. The question as to whether exclusive possession over any portion of the property after creation of an interest therein has been given to the person concerned is again a guiding factor. The Judge Small Cause Court does not appear to have adverted to these crucial matters. It is for these reasons that I am of opinion that the order of the Judge Small Cause Court cannot be sustained. 5. In so far as the order passed by the Additional District Judge, respondent No. 1 is concerned, it is true that he was justified in the circumstances stated above to record a finding that the finding of the Judge Small Cause court was not in accordance with law. Such a finding could be given even within the limited scope of section 25 of the Provincial Small Cause Courts Act. The crucial question, which, however, falls for consideration, is whether it was open to respondent No. 1 to have appraised the evidence himself and to record a finding of fact on the question about the shop in question having been sub-let by respondent No. 3. In Laxmi Kishore and another v. Har Prasad Shukla, 1979 A.W.C. 746, a Division Bench of this Court in paragraphs 19 and 20 of the report laid down the scope of section 25 of the Provincial Small Cause Courts Act as hereunder : "19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz., validity of notice, is sufficient for its decision. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz., validity of notice, is sufficient for its decision. 20. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of (the case requires but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact." 6. In my opinion none of the ingredients mentioned in paragraph 19 of the report referred to above is to be found in the instant case. Consequently, it was not open to respondent No. I to have recorded his own finding on the issue about sub-tenancy. The only course open to him was that, as laid down in paragraph 20 of the report, he ought to have sent the case back to the Judge Small Cause Court for deciding it afresh after laying down proper guidelines. In this view of the matter, even the order of respondent No. I cannot be sustained. 7. In the result, the writ petition succeeds and is allowed and the impugned orders dated 28th April, 1977 and 9th February, 1979 passed by the Judge Small Cause Court, Bulandshahr and the Sixth Additional District Judge, Bulandshahr respectively are quashed and the Judge Small Cause Court, Bulandshahr, is directed to decide the suit afresh in accordance with law keeping in mind the observations made above. In the circumstances of the case, parties shall, however, bear their own costs.