Rahmat Elahi v. Mazharul Haq Mutawalli of Waqf — 1987 DIGILAW 955 (ALL)

JUDGMENT V.K. Mehrotra, J. - Rahmat Elahi, who has approached this Court in the present Revision under Section 25 of the Small Causes Court Act for relief, was the first defendant in Small Causes Court Suit No. 75 of 1977 instituted by Mazharul Haq, Mutwalli of Waqf Sheikh Abdul Haq, as plaintiff. He is the first opposite party in this Court while S.M. Kalim, who was the second defendant in the suit, is the second opposite party. 2. Waqf Sheikh Abdul Haq is the owner of premises no 40/170, Makhania Bazar, Kanpur. Rahmat Elahi is a tenant of these premises at a monthly rent of Rs. 175/-. The case of plaintiff Mazharul Haq is that Rahmat Elahi defaulted in payment of rent. Huge amount became due as arrears of rent from him since 1976. A composite notice of demand and ejectment dated July 18, 1976 was sent to him under registered cover and was personally served upon him on July 20, 1976. The notice bore no fruit. Consequently the suit, out of which arises the present Revision, was filed claiming substantial sum from him as arrears of rent and water tax and as damages. The suit sought ejectment of Rahmat Elahi on some other grounds as well. It has been asserted that the accommodation has been sub-let by Rahmat Elahi, to S.M. Kalim, the second opposite party, who had been doing pairvi on behalf of Mazharul Haq in an earlier suit No. 131 of 1976 in the court of the First Addl. Munzif, Kanpur. It has further been asserted that in the reply that he gave to the combined notice of demand and termination of tenancy served upon him. Rahmat Elahi had denied the title of plaintiff Mazharul Haq as the Mutwalli of the Waqf and has thus rendered himself liable for ejectment on this ground also. The plaintiff, after an amendment, said that after the service of the aforesaid notice of demand and termination of tenancy, Rahmat Elahi admitted some outsiders as partners in the business run under the name and style of M/s. Standard Chappal in the premises in dispute. These partners were not members of the family of Rahmat Elahi. The plaintiff, after an amendment, said that after the service of the aforesaid notice of demand and termination of tenancy, Rahmat Elahi admitted some outsiders as partners in the business run under the name and style of M/s. Standard Chappal in the premises in dispute. These partners were not members of the family of Rahmat Elahi. This amounted to sub-letting of the accommodation in contravention of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (Act No. 13 of 1972) (hereafter, the Act) which were admittedly applicable to the premises in dispute. The defendants, therefore, deserve to be ejected on this ground too. 3. Rahmat Elahi contested the suit. He filed a written statement. While admitting that he was a tenant of the Waqf, he pleaded that Mazharul Haq was not the Mutwalli of the Waqf and that till such time that it is established that Mazlarul Haq was the Mutwalli of the Waqf, the suit would not be maintainable at his instance. The claim of the plaintiff that he was in arrears of rent etc. had been denied So also the fact that he had sub-let the accommodation to any one. The plea is the written statement is that Smt. Salamat-bi was the Mutwalli of the Waqf and since, after her death, it was not clear as to who was the Mutwalli, the proof of Mutwalliship was demanded by Rahmat Elahi from plaintiff Mazharul Haq so as to avoid payment to an unauthorised person. It has also been said that one Smt. Saahira Khatoon was the sister's daughter of Rahmat Elahi and She had been admitted as a partner in M/S Standard Chappal with effect from February 3, 1971 and continues as such. She is merely a sleeping partner and the entire business was being conducted by Rahmat Elahi himself, who was in actual, physical and exclusive possession of accommodation in dispute. Benefit of section 20(4) of toe Act has also been sought by Rahmat Elahi on the basis of the deposit made by him at the first hearing. 4. The suit was tried by the 4th Addl. District Judge, Kanpur. It has been decreed substantially. The decree is for recovery of the amount claimed as arrears of rent and of accrued damages as well as for the pendente lite and future damages at the rate of Rs. 4. The suit was tried by the 4th Addl. District Judge, Kanpur. It has been decreed substantially. The decree is for recovery of the amount claimed as arrears of rent and of accrued damages as well as for the pendente lite and future damages at the rate of Rs. 175/- per month till the date that the plaintiff obtains possession of the accommodation, after ejectment of defendants, for which relief also, the suit has been decreed. The suit has not been decreed for the relief of recovery of certain amount claimed as arrears of water tax by the plaintiff. 5. The trial Judge felt that on the pleadings of the parties, the following points arose for determination in the case ; 1. Whether the plaintiff is entitle) to sue as Mutwalli of the Waqf. If not, its effect ?. 2. Whether the defendant denied the title of the plaintiff and whether bar of suit for eviction has been removed under clause (f) of section .20(2) of U.P. Act XIII of 19727. 3. Whether the defendant committed default in payment of rent ?. 4. Whether the defendant sub-let the tenanted accommodation to defendant No. 27. if so its effect ?. 5. Whether the defendant admitted other partners in the firm under the name and style of M/s. Standard Chappals ? If so its effect ?. 6. Whether the defendant has made due deposit under section 20(4) of the Act and is relieved of eviction on the ground of default ?. 7. Whether the plaintiff is entitled to water tax. If so, to what amount?. 8. Whether a valid notice of termination was served upon the defendant?. 9. To what relief, if any, is the plaintiff entitled ?. Scanning the original deed of waqf, which is Ext.2 on the record of the suit and the other documents to show that he was elected as Mutwalli by the beneficiaries the learned Judge concluded that Mazharul Haq was the Mutwalli of the Waqf and was entitled to maintain the suit on its behalf. He also found that the name of Mazharul Haq was entered in the assessment list of the Mahaplika in respect of the property in question. He also found that the name of Mazharul Haq was entered in the assessment list of the Mahaplika in respect of the property in question. The finding recorded by the learned Judge in respect of the second point is that, inasmuch as, Rahmat Elahi had admitted in unequivocal terms in the reply sent to the notice of demand and termination of tenancy, that he was tenant of the Waqf and had not done any- thing more than demanding proof from Mazharul Haq about his right to act as the Mutwalli of the Waqf, it could not be said that he disclaimed the title of the landlord and rendered himself for forfeiture of the disputed tenancy so as to attract section 24 (2) (f) of the Act. The finding of the learned Judge also is that Rahmat Elahi never set up any title in himself or in any third person. 6. The conclusion recorded by the trial Judge in respect of the third point is that within the stipulated period of one month, the arrears of rent was tendered or paid by Rahmat Elahi to the landlord or that the amount of arrears of rent was deposited under section 30 of the Act. Rahmat Elahi had therefore, committed default in payment of rent and was in arrears thereof since January 1, 1976. The trial Judge refused to extend the protection of section 20(4) of the Act to Rahmat Elahi on the ground that the deposit which he had made could not be said to be unconditional. The suit was instituted on November 19, 1977. Summons fixing January 12, 1978 was issued by the court. The entire amount due up to date with interest and costs was deposited by Rahmat Elahi on January 4, 1978. The written statement in the suit was filed after January 4, 1978. The trial Judge has said that ".........In the instant case, the deposit was made on 4.1.78. It was only subsequent thereto that the defendant no. 1 filed his written statement in the suit wherein he disputed the plaintiff's right to realise rent from him. He also disputed the existence of arrears of rent. Even at the stage of evidence, defendant no. 1 stuck to the said stand and disputed the rights of the plaintiff and claimed that he had no right to realise rent. 1 filed his written statement in the suit wherein he disputed the plaintiff's right to realise rent from him. He also disputed the existence of arrears of rent. Even at the stage of evidence, defendant no. 1 stuck to the said stand and disputed the rights of the plaintiff and claimed that he had no right to realise rent. In these circumstances, the deposit made by defendant No. 1 cannot be said to be unconditional............". The 6th point was, thus, decided against the tenant. In regard to the 4th point, the conclusion recorded by the trial Judge is that Rahmat Elahi had sub-let the accommodation to S.M. Kalim. He was, therefore, liable for ejectment under section 20\2)(e) of the Act as well. About the 5th point, the learned Judge found that the partnership deed showed that Smt. Shahira Khatoon was admitted as a partner in the firm M/s. Standard Chappal on February 3, 1971 and that there is no evidence to show anything to the contrary. Since the provisions of Section 12(2) of the Act were not retrospective in their operation, the sub-letting, on this ground, could not be said to have been made after the commencement of the Act so as to furnish a basis for the ejectment of the tenant. The point was, thus, decided in favour of the defendants. So also, the 7th point regulating to the claim for recovery of some amount by way of arrears of water tax. The 8th point was answered in favour of the plaintiff on the finding that the notice of demand and termination of tenancy had admittedly been personally served on the first defendant and was in conformity to the requirements of law. The learned counsel for the defendants could not point out any defect or invalidity in the notice. 7. Sri S.N. Misra, who argued the case on behalf of the defendant- applicant, assailed the view taken by the trial Judge both about the deposit made by Rahmat Elahi on January 4, 1978 not being unconditional so as to entitle him to the protection under section 20(4) of the Act and about applicant Rahmat Elahi having sublet the accommodation to S.M. Kalim, and, therefore, having rendered himself for ejectment under section 20(2)(e) of the Act. Sri R.H. Zaidi, who appeared on behalf of plaintiff Mazharul Haq, not only supported the view taken by the learned trial Judge on these aspects of the case but also assailed the conclusion of the learned Judge that Rahmat Elahi had not rendered himself liable to ejectment under clause (f) of section 20(2) of the Act by denying the title of the landlord recorded while deciding the second point formulated by him for determination in the case. 8. The question whether the deposit made by Rahmat Elahi on January 4, 1978 was unconditional or not for purposes of section 20(4) may first be examined. The trial Judge referred to the decision of the Supreme Court in Mangal Sen v. Kanchhid Mal, AIR 1981 Supreme Court 1726. for taking the view that the tenant after making the deposit having filed a written statement in which the right of the landlord to realise rent from him had been disputed and so also the existence of arrears of rent, it could not be said that the deposit made by the tenant was unconditional. The decision in the case of Mangal Sen turned on its own facts as is clear from a later decision of the Supreme Court in Smt. Vijai Laxmi Gangal v. Mahendra Pratap Garg, AIR 1986 Supreme Court 753. In this case, their Lordships of the Supreme Court said that the principle of Mangal Sen's case was not attracted in the case before them because it was not clear in the case of Mangal Sen whether the deposit of correct amount had been made by the tenant within the time fixed in section 20(4) of the Act whereas in the case before them it had been found by the learned District Judge that the arrears of rent at the rate claimed in the plaint together with interest and cost, had been deposited within the time mentioned in section 20(4) of the Act. It is clear from the observations in Smt. Vijai Laxmi's case that the crucial aspect of the matter was the deposit within the permissible time of the correct amount apart from the deposit being made on the first date of hearing when the question of grant or otherwise of the protection of section 20(4) of the Act was being considered. Vijai Laxmi's case had gone to the Supreme Court from this Court. Vijai Laxmi's case had gone to the Supreme Court from this Court. In the decision of this Court Mahendra Pratap Garg v. Smt. Vijai Laxmi, 1983 (1) Alld. Rent cases 74. the decree had been partially reversed by dismissing the suit for the relief of ejectment of the tenant. Before the Division Bench, which decided Vijai Laxmi's case of this Court, reliance had been placed on behalf of the landlord on the decision of Supreme Court in Mangal Sen's case. The Division Bench also distinguished it, interalia, by saying that the Supreme Court had recorded a definite conclusion that there was no material to show that the deposit had been made on the first date of hearing itself and of the correct amount and was made by way of unconditional tender for payment to the landlord and then made, according to this Court, a passing observation that even if it was made on the first date of hearing the deposit was not an unconditional tender because in the written statement the tenant had denied that he had defaulted or that any arrears existed. In Laxmi Narain Sharma v. Arjun Deo Dhawan and others, 1981 Alld rent Cases 672. N. D. Ojha, J. (as he then was) upheld the refusal of the benefit of section 20 (4) of the Act to the tenant by saying that the tenant had attached a pre-condition to the deposit made by him that the amount may be kept in deposit till the suit was decided which meant that the condition that he had attached was that the amount be not paid to the landlord which was contrary to the intent of section 20 (4) of the Act read with sub-section (6) of section 2l, of the Act. This sub- section says that the amount deposited by a tenant under sub-section (4) shall be paid to the landlord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suit. The view taken by N. D. Ojha, J. was approved by the Division Bench in Mahendra Pratap Garg v. Smt. Vijai Laxmi (supra). The view taken by N. D. Ojha, J. was approved by the Division Bench in Mahendra Pratap Garg v. Smt. Vijai Laxmi (supra). The Division Bench, however, made it clear that irrespective of the deposit by the tenant, pleadings of both the pasties remain intact and the suit is to go on if the pleadings raise triable issue and the fact that divergent pleas are taken in the written statement would not make the deposit conditional. This is the clear intention of sub-section (6) of section 20 which expressly says that the amount is to be paid to the landlord "without prejudice to the parties' pleadings and subject to the ultimate decision in the suit". 9. In the present case there is no finding that when the correct amount was deposited Rahmat Elahi on the first date of bearing of the suit, he had imposed any condition which could be treated to be an impediment in the way of the landlord in the withdrawal of the amount. 10. Sri Zaidi urged that subsequent to the deposit, the tenant objected to the withdrawal of the amount by the plaintiff so that the deposit made by him could not be said to be an unconditional one. He sought assistance from the observations made in the two decisions of this Court mentioned above. The findings recorded by the trial Judge do not indicate that any such objection was raised by the tenant. The submission is not legitimately open to Sri Zaidi for the first time in this Revision, particularly, when the only basis upon which the trial Judge has treated the deposit to be unconditional is the plea taken by the tenant in the written statement. 11. In Devi Prasad v. Ram Kumar Maheshwari, 1983 A.L.J. 481, it was observed by this . 11. In Devi Prasad v. Ram Kumar Maheshwari, 1983 A.L.J. 481, it was observed by this . Court (in paragraph 7 of the report) that "unconditional deposit as contemplated by section 20(4) of the Act refers to that stage of the proceedings in court when on the first date of hearing the amount due is actually deposited by the defendant (tenant) If on that date along with the deposit, an application had been filed to the effect that the amount be not paid over to the landlord till the decision of the suit, or some such other condition had been attached to the deposit, it can be argued that such deposit was not unconditional, but if no such strings are attached to the deposit at the time when it was made, then in my opinion, it cannot be urged that such a deposit was not unconditional...... 12. The view of the trial Judge that the deposit in the present case was not an unconditional one so as to make the benefit of section 2014) of the Act available to the tenant, is not sound in law. 13. The trial Judge his held that the tenant was liable to be ejected as be had sub-let the accommodation. This finding has been recorded by the learned Judge by holding on his appreciation of the evidence on record, that applicant 'Rahmat Elahi had not paid any rent to the landlord since January 1, 1976, which was about he time since when the premises in dispute (40/170 Makhania Bazar) had been in the exclusive possession of the second defendant S.M. Kalim. Also, no business transaction of Rahmat Elahi was found to have been carried on from these premises since then. The documents on record' according to the learned Judge, showed that in suit no. 131 of 1976, which had been filed by Rahmat Elahi against the Waqf, S. M. Kalim was doing pairvi behalf of Rahmat Elahi. Further, notices as well as summons of the present suit (out of which this Revision arises) were served on S. M. Kalim at premises No. 40/170 Makhania Bazar by refusal. The statement of Rahmat Elahi itself showed that S, M. Kalim had settled permanently at Kanpur in the year 1975. These circumstances lend support to the fact that the disputed premises no. 40/170 Makhania Bazar were in exclusive possession of S. M. Kalim. 14. The statement of Rahmat Elahi itself showed that S, M. Kalim had settled permanently at Kanpur in the year 1975. These circumstances lend support to the fact that the disputed premises no. 40/170 Makhania Bazar were in exclusive possession of S. M. Kalim. 14. From the fact of exclusive possession of S. M. Kalim (the second defendants the learned trial Judge has drawn an inference that the disputed premises had been sublet to him by Rahmat Elahi (the first defendant). The learned Judge his taken the view that it is so on account on the provisions contained in the Explanation (i) to section 25(2) read with section 12( 1)(b) of the Act. The relevant portion of these provisions are :- "25. Prohibition of sub-letting - (1) ..................... (2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sublet a part of the building. Explanation -For the purpose of this section (i) Where the tenant ceases, within the meaning of clause (b) of sub-section (1) or sub-section (2) of section 12, to occupy the building or any part thereof he shall he deemed to have sub-let that building or part; (ii) .......................". "12. Deemed vacancy of building in certain case, - (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if - a) He has substantially removed his effects therefrom, or (b) .................. (c) .................... 15. In Smt. Krishnawati v. Bans Raj, AIR 1974 Supreme Court 280. the Supreme court observed that whenever eviction is sought on the ground of sub-letting, it was settled law that the onus to prove sub-letting was on the landlord and that if the landlord prima facie showed that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would be, for the tenant to rebut the evidence". Relying on this decision, I held in Peshwari Lal and others v. Surendra Kumar and another, 1979 U.P. R.C.C. 175. that the essential ingredients for the finding that the person who is in occupation is as a sub-tenant are, firstly, that he is in exclusive possession of the premises and, secondly, that be is there for some valuable consideration. Relying on this decision, I held in Peshwari Lal and others v. Surendra Kumar and another, 1979 U.P. R.C.C. 175. that the essential ingredients for the finding that the person who is in occupation is as a sub-tenant are, firstly, that he is in exclusive possession of the premises and, secondly, that be is there for some valuable consideration. Further, that the second ingredient could be established by circumstances from which the relationship of lessor and lessee between the tenant and the alleged sub-tenant found to be in exclusive possession, might be inferred Reiterating this view, I observed in Ajit Singh v. Naresh Chand Gupta and others, 1981 A.R.C. 332. that a finding on the question of sub letting based only on the basis of exclusive possession could not be said to be a finding of sub-letting in accordance with law and that the twin requirements i.e. exclusive possession and that too for consideration of a person other than the tenant had to be established before a person could be treated to be a sub-tenant." 16. Sri S. N. Misra, appearing for the tenant-applicant in this Court, leaned heavily on these observations for his submission that the finding of sub- letting in the present case only on the basis of exclusive possession of the shop in dispute being of the second defendant S M. Kalim, could not be sustained. He urged that there being no further finding that S. M. Kalim was in exclusive possession over the shop for some valuable consideration, the decree of ejectment against the first defendant Rahmat Elahi on the ground of having sub-let the shop, could not be upheld. 17. In the two decisions rendered by me and the decision of the Supreme Court in Smt. Krishnawati. Section 25, of the Act had not been invoked by the landlord nor had its effect been considered by the court. Those decisions would not be a proper guide to determine the question of sub-letting of a premises where section 25 of the Act is attracted. This provision is not retrospective in its operation It applies only to those cases where sub-letting takes place after the enforcement of U.P. Act 13 of 1972. In the present case, the plaintiff has averred in paragraph 10 of the plaint that the subletting took place in the year 1976. This provision is not retrospective in its operation It applies only to those cases where sub-letting takes place after the enforcement of U.P. Act 13 of 1972. In the present case, the plaintiff has averred in paragraph 10 of the plaint that the subletting took place in the year 1976. The trial Judge has come to the conclusion that it was around January, 1976 when Rahmat Elahi, the tenant, stopped paying rent to the plaintiff- landlord that the shop was sub-let S. M. Kalim, who had settled permanently at Kanpur in the year 19%5. The tenant Rahmat Elahi has been found to be carrying on business in a different premises (40/421 ', Naya Chowk, Kanpur) and the second defendant S. M. Kalim has been found to be in exclusive possession of disputed shop no. 40/170 Makhania Bazar, Kanpur. It is not in dispute that S. M. Kalim is not a member of the family of Rahmat Elahi. It is also not in dispute that Rahmat Elahi has claimed his own possession over the disputed . premises in the written statement filed by him. He has not accepted the possess- ion of S. M. Kalim over the premises at all. Obviously, no explanation has been offered by Rahmat Elahi about the exclusive possession of S. M. Kalim over the disputed shop as found by the trial Judge on appreciation of the evidence on record. 18. Explanation (i) to section 25(2) is couched in an imperative term when it says that where a tenant ceases to occupy the building within the meaning of section 12 (l)(b), be shall be deemed to have sub-let that building. Section 12 (1) is also equally imperative in its language when it says that a tenant of a building shall be deemed to have ceased to occupy the building if he allows it to be occupied by a person who is not a member of his family. 19. Both these provisions, which contain a deeming clause, create a legal friction ; the effect whereof is that where a tenant permits a person who is not a member of his family to occupy the premises demised to him, be shall be deemed to have sub-let that building. 19. Both these provisions, which contain a deeming clause, create a legal friction ; the effect whereof is that where a tenant permits a person who is not a member of his family to occupy the premises demised to him, be shall be deemed to have sub-let that building. The intendment of section 12 (1)(b) of the Act, as said by the Supreme Court in Harbans Lal v. Jagmohan Saran, 1986 Lucknow Rent Journal 32, is not to include possession of a person as an agent of the tenant. For in that case it would be the occupation of the tenant himself. This provision contemplates his occupation otherwise than as an agent of a tenant. In the event of such occupation the Legislature mandates that the transaction, as far as the tenant is concerned, will be treated to be one of sub-letting by him for the purpose of the Act. The inevitable corollary would be that the tenant would render himself liable for eviction under section 20(2) (e) of the Act. 20. The rule about the legal friction is well known. Lord Asquith stated it in East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1952) A.C. 109, in the following words ; "If you are bidden to treat an imaginary state of affairs as really you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the put native state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." The Supreme Court notices with approval another principle in State of Bombay v. Pandurang Vinayak, AIR 1953 Supreme Court 244. by saying that : When a statute enacts that some thing shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and is bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion". In Smt. Samundri Devi and etc. v. Nand Kishore Marwah and others etc. 1987 A.L.J. 255. In Smt. Samundri Devi and etc. v. Nand Kishore Marwah and others etc. 1987 A.L.J. 255. I had occasion to consider the deeming clause, which also creates a legal friction contained in explanation.0) to Section 2(2) of the Act. I said in paragraph 14 of the report) that : "The mere fact that the deeming provision is expressed to be an explanation will not alter its basic character nor limit it to a mere explanation of substantive provision. A substantive provision may be given the non-menclature of an explanation. The Legislature has its own way of describing a provision". This decision has been affirmed by the Supreme Court in Nand Kishore Marwah and another v. Smt. Samundri Devi, Civil Appeal No. 3909 of 1986; decided on 17.9.1987. 21. Where, as in the present case the situation contemplated by explanation (i) to section 25(2) is found to exist on facts, there is no escape from the conclusion that sub-letting of the premises on the part of the tenant will have to be assumed. This view finds support from the observations of H. N. Seth, J (as he then was) in Amarjeet Singh v. Addl. District Judge, Moradabad and Ors. 1980 A.R.C. 428. A. N. Verma. J in Habibur Rahman v. Smt. Shakuntala Devi and others, 1983 (1) A.R.C. 226. and V.N. Khare, J in T. R. Vishwanathan and another v. Ist Addl. District Judge, Varanasi and others, 1985 (1) A.R.C. 410. 22. In Jagdish Prasad v. Smt. Angoori Devi, AIR 1984 Supreme Court 1447. it was observed (in paragraph 2 of the report that : "Merely from the presence of a person other than the tenant in the shop sub-letting cannot be presumed. There may be several situations in which a person other than a tenant may be found sitting in the shop...... As long as the control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the court to assume a sub-tenancy merely from the fact of presence of an outsider.........". This decision, upon which great emphasis was placed by Sri Misra, hardly helps his client. The Act does not require the court to assume a sub-tenancy merely from the fact of presence of an outsider.........". This decision, upon which great emphasis was placed by Sri Misra, hardly helps his client. The dictum of the Supreme Court is that so long as the control over the premises of the tenant and the business run there is of the tenant, no sub- letting can be assumed merely from the presence of a person other than the tenant in the shop. The situation in the instant case has not been found to be so. In Sri Triloki Nath Sah v. II Addl. District Judge, Nainital and others, 1986 U.P. R.C.C. 324. N. D. Ojha, J (as he then was) was considering a case where, according to the conclusion of the trial court, as found by this Court, the accommodation had been let out to the tenant for running a lodging house. The view taken by this Court was that lodging persons in that accommodation did not amount to sub letting of the accommodation by the tenant. 23. Sri Misra also urged that the question whether S. M. Kalim was in exclusive possession over the disputed shop needed fresh inquiry. He was, however, unable to point out any legal infirmity in the approach of the trial Judge while considering this question so as to persuade this Court that the matter required re-examination Merely because some circumstances relied upon by the learned trial Judge should not have been given such weight, according to the submission of Sri Misra, as was given to them will not render the conclusion of the trial Judge erroneous in law. Discussing elaborately the material on record while considering the 4th point (whether the defendant sub-let the tenanted accommodation to defendant No. 27. If so, its effect ?) formulated by him for determination, the learned Judge arrived at a conclusion against the tenant which cannot be said to be such to which no reasonable person would arrive at on that material. I am unable to persuade myself to take the view that the matter requires reconsideration. 24. If so, its effect ?) formulated by him for determination, the learned Judge arrived at a conclusion against the tenant which cannot be said to be such to which no reasonable person would arrive at on that material. I am unable to persuade myself to take the view that the matter requires reconsideration. 24. In the view that I have taken about the sustenance of the finding that the applicant tenant had sub-let the premises and the consequential upholding of the decree passed by the trial Judge, it is unnecessary to go into the question whether the tenant deserves to be evicted on the ground that he bad denied the title of the landlord within the meaning of clause (f) of section 20(2) of the Act. The decree for the ejectment of the applicant deserves to be upheld. 25. The Revision fails and is dismissed but, in the circumstances of the case, I would leave the parties to bear their own costs in this court.