Sharad Manohar, J.
1. Both these writ petitions arise out of the same suit filed by the plaintiff, who is the contesting respondent before me. Hence they are being disposed off by this common judgment.
What follows is the chronological statement of fact. Wherever there is some dispute about the fact, but I find the same to be fairly established, I will give an indication in that behalf at the appropriate place.
2. For the sake of convenience, the fact will be stated with reference to Special Civil Application No. 102/73 and the parties will be referred to with reference to their description in the trial Court, that is to say, as plaintiff, defendant No. 1 etc.,
(a) The petition arises out of an eviction decree passed against the defendants under the Bombay Rent Act. The suit premises consist of an open plot of land, C.T.S. No. 454, Somwar Peth, Pune. The four sides of the plot of land are of different measurements. On the date of the suit one side was 130', second side was 138', the third side 50' & fourth side was 40' in length. It appears from the plaintiff's own contention that when the plot of land (which will be referred to as the suit premises) was originally let out to the tenant concerned, the area was much less than what it was on the date of the suit. Exactly how much area was let out initially was not stated by the plaintiff. But what is contended is that in the year 1938, a plot of land was let out by the plaintiff to defendant No. 1. The plaintiff's contention has been that the lease was for the purpose of storage of coal. The monthly rental agreed upon was Rs. 25/-. In fact, there is no document produced by the plaintiff either embodying or reflecting the condition of tenancy at all. If no evidence was produced on either side the only conclusion the Court could arrive at was that the open plot of land was leased by the plaintiff to defendant No. 1 to be used in accordance with the provisions of law as tenant. It may be mentioned here that defendant No. 1 is a partnership firm and the letting was to the said partnership firm in the year 1938. The name of the partnership firm was 'The Bengal Coal Supplying Firm.' At the most what could be, therefore, said by any Court by way of conclusion was that the suit premises were let out by the plaintiff to defendant No. 1 firm for the purpose of its business. It can hardly be disputed that a partnership concern can always changes its own business and if there was no evidence led to show the particular purpose of the lease, the conclusion would be irresistible that whatever business the partnership firm was carrying on, the suit premises could be used for that purpose.
(b) As will be presently pointed out, the plaintiff's contention is that there was a restrictive convenant which restrict the plaintiff's user of the leased premises to storage of charcoal only. I have to examine the question as to whether the plaintiff has succeeded in establishing this restrictive covenant.
(c) After taking the lease, defendant No. 1 constructed a shed admeasuring 110' x 20' upon the plot of land. Likewise, in the year 1940, he constructed two more sheds, admeasuring 50' x 30' & 80' x 20' respectively. In the year 1943, the defendant also constructed two small rooms on the open plot of land; one for office purpose and the other for the purpose of watchman.
For the sake of convenience, I will refer to the shed admeasuring 110' x 20' as shed 'A', the shed admeasuring 40' x 30' as shed 'B' and the third shed admeasuring 80' x 20' as shed 'C'. In the year 1952-53, shed 'A' was let out by the plaintiff to defendant No. 2 and defendant No. 2 started his own business of storing coal in the said shed.
(d) The most crucial question arising for my consideration in this petition is as to whether the plaintiff has succeeded in proving his allegation of change of user of the premises by defendant No. 1. Certain events which have taken place in the year 1947 and 1951 may, therefore, be referred to at this stage. Sometime in the year 1947, the plaintiff started entertaining the grievance against defendant No. 1 that he was encroaching upon the land adjacent to the plot of land let out to him. On 20-5-1947, therefore, a notice was given by the plaintiff through his learned Advocate Shri Chimbulkar to defendant No. 1. In the notice it was stated as follows :
'C.T.S. No. 454, Somwar Peth, Pune is of the ownership of my client. Out of the said C.T.S. No. 454, you have taken on lease a small portion of the open space for storing coal etc., on a monthly rent of Rs. 25/-.'It was further stated in the notice that defendant No. 1 had encroached upon the adjoining piece of land, on account of which defendant No. 1's tenancy was terminated by the plaintiff by the said notice and defendant No. 1 was called upon to hand over possession of the open plot of land in possession of defendant No. 1. To this notice, Exh. 60-D, a reply dated 30-5-1947 was given by defendant No. 1 through his Advocate Shri Kelkar. In the said reply it was specially mentioned by defendant No. 1 that the firm was the tenant of a very long standing and that the premises had been leased for the firm's various sorts of business. It would be thus seen that at the earliest opportunity the plaintiff's insinuation about the restrictive covenant met with an immediate denial from defendant No. 1. Thereafter on 31-8-1950 another notice was given by the plaintiff through his learned Advocate. In this notice the word 'etc.', was omitted and it was stated that the open plot of land had been leased to defendant No. 1 for coal business at the monthly rental of Rs. 25/-. It was further mentioned that there was an encroachment by defendant No. 1, upon the adjoining piece of land belonging to the plaintiff and it was also contended that defendant No. 1, had extended its shed and had been using it for other purposes. It was thus specifically alleged in the said notice that :
(a) the purpose of the lease was coal business;
(b) that defendant No. 1 had changed the user of the premises by using it for purposes other than coal business.
To this notice, a reply dated 15th September, 1950 was given by defendant No. 1. In the said reply it was reiterated that defendant No. 1 was entitled to use the premises not only for coal purposes but for other purposes as well. The other allegations were naturally denied.
(e) What is further noteworthy is that on 9-4-1951 a settlement was arrived at between the plaintiff on one had and defendant No. 1 on the other which settlement is evidenced by a writing signed by both the parties and is produced as Exh. 64 in these proceedings. In the said document, it was stated that defendant No. 1, was given larger area of land than what was originally given to him as per the lease of the year 1938. In consideration for that, it was stated in the document of settlement that defendant No. 1 had agreed to pay the enhanced rate in respect of the premises in his possession. The rent was enhanced from Rs. 25/- to Rs. 65/- per month. What is extremely significant is that this document which evidences the settlement clearly spells out the following facts :
(a) on the plaintiff's own showing, larger area was made available to the tenant-defendant No. 1 as a matter of right;
(b) for that purpose the tenant-defendant No. 1 was required to pay larger rent to the landlord;
(c) no statement was made by the plaintiff in the said document of settlement that there operated any restrictive covenant in respect of the suit premises in spite of the fact that the plaintiff's earlier assertion in that behalf had been emphatically denied by defendant No. 1.
(f) In the year 1952-53, Shed 'A; was sub-let by the plaintiff to defendant No. 2 and defendant No. 2 started carrying on his own coal depot in the said shed. In the year 1961, Shed 'B' & 'C' were let out by the plaintiff to defendant No. 3 and he started doing business of interior decorators, involving storage of various decorative windows and other pieces of furniture, in the said sheds.
I may state here that some dispute was raised on the question as to whether Sheds B & C were let out by defendant No. 1 before the year 1959 or after that year. However, Mr. Abhyankar, the learned Advocate for defendant No. 1 appearing before me fairly conceded that the finding recorded by both the courts below that the letting took place in the year 1961 could not be called in question. I must, therefore, proceed upon the assumption that Sheds B & C were let out by the plaintiff to defendant No. 3 in the year 1961 and not at any time earlier. The fact, however, remains that the plaintiff sat pretty about the entire matter for a full period of 7 years. On 5-3-1968, for the first time, he gave notice to defendant No. 1 making grievance about the following facts and terminating his tenancy on that account.
(a) The defendant had sub-let a portion of the suit premises to defendant Nos. 2 & 3.
(b) that he has been receiving larger rent from the sub-tenants and has been thus profiteering therefrom;
(c) that defendant No. 1 was guilty of having changed the user of the premises by allowing defendant No. 3 to do business other than coal business in sheds B & C;
(d) that defendant No. 1 had constructed permanent structures upon the suit premises without the plaintiff's consent and has thus made himself liable for eviction.
To above notice, reply dated 20th March, 1968 was given on behalf of defendant No. 1 denying all the allegations against him. Copies of the said notices had been sent by the plaintiff to defendant Nos. 2 and 3. But it is not clear from record as to what action was taken against defendants Nos. 2 & 3, as regards the same.
(g) On 2-12-1968, the present suit was filed by the plaintiff for recovery of possession of the suit premises on the ground mentioned above. The defendants, by their written statement, denied the allegations made against them and hence requisite issues were framed by the trial Court. The parties led the evidence on the basis of the said issues and upon examining the evidence, the trial Court recorded the following findings :
(a) that though there was a letting by defendant No. 1 in favour of defendant No. 2 as well as defendant No. 3 in respect of the various sheds, there was no letting in respect of the land upon which sheds were standing. Hence, defendant No. 1 was not guilty of unlawful sub-letting of any portion of the suit premises;
b) that the structures were not of permanent character;
c) that the purpose of lease was storage of coal only and that defendant No. 1 had changed the user of the said premises in that the premises had been used for purposes other than storage of coal.
The Court also held that defendant No. 1 had failed to use the suit premises for the purpose for which they were let out for period exceeding six months without any reasonable cause. The trial Court, therefore, passed an eviction decree in favour of the plaintiff on the last two grounds, namely, unlawful change of user and unjustified non-user of the suit premises.
h) Against the said eviction decree, the three different appeals were filed by the three defendants separately. All the three appeals were heard together. The learned Asstt. Judge concurred with the trial Court that what was sub-let by defendant No. 1 to defendant No. 2 were the structures and not the land below the structures. It was also held that the structures were constructed by defendant No. 1 with the plaintiff's express or implied consent. However, the learned Judge confirmed the trial Court's view that the purpose of the original letting of the year 1938 was storage of coal only and that there had been an unlawful change of user of the premises and further that the change of user also spelt out the non-user of the premises of the plaintiff for a period exceeding six months without any justification. The decree for eviction was, therefore, confirmed by him.
Against the said decree passed by the learned Asstt. Judge, all the three defendants have filed writ petition separately in this Court. The writ petition filed by defendant No. 1 is Special Civil Application No. 327/1973. The writ petition filed by defendant No. 3 is Special Civil Application No. 102/1973.
3. There is no dispute before me that even defendant No. 2 had filed writ petition in Special Civil Application No. 2235/1972 in this Court and it appears that writ petition was earlier in time. The said writ petition was summarily rejected by this Court on 13-11-1972. Thereafter the present two writ petitions were filed and rule was issued by this Court in respect of the same and the execution of the decree passed by the courts below was stayed. It was stated before me by the learned Advocate that against the order passed by this Court on 13-11-1972 dismissing defendant No. 2's writ petition summarily, a special leave petition was filed by him in the Supreme Court and Special Leave has been granted by the Supreme Court, to file an appeal against the said order of summary dismissal. I am informed that the appeal in question has not yet been decided by the Supreme Court. I may, however, state here that none of the parties have any objections to these petitions being heard and to decide by me in spite of the pendency of the appeal is the Supreme Court filed by defendant No. 2.
4. The only question that falls for my consideration is this petition is as to whether---
a) the lower courts were right in coming to the conclusion that the purpose of the original lease was restricted to storage of coal only;
b) whether the lower courts were right in holding that the subject matter of the lease in favour of defendant Nos. 2 & 3 was the sheds and not the land in question.
If it is found that the purpose of the lease was not restricted to coal storage as alleged by the plaintiff, it would follow that the allegation of change of user would be devoid of any basis. Likewise, it would follow that if the subject matter of the lease in favour of defendant No. 3 was only the structure and not the land under the structure, the allegation that a portion of the land was sub-let by defendant No. 1 to defendant No. 3 would be devoid of any basis.
The former question is agitated before me by Mr. Abhyankar, the learned Advocate for defendant No. 3, whereas the latter question is agitated by Mr. Naik, the learned Advocate for the original plaintiff.
5. Coming to the first question, agitated by Mr. Abhyankar, prima facie the question appears to be one of fact and of appreciation of evidence; but after going through the judgment of both the courts below as also through the documentary evidence including the part of it referred to above, I have come to the conclusion that not only that the judgment of both the courts below involve an error, but that the error is a legal error and that it stems from complete non-application of mind to certain cogent pieces of evidence on record.
6. In this connection, I will first refer to the evidence relied upon by the lower Appellate Court for coming to the conclusion that there existed a restrictive covenant prohibiting the tenant-defendant No. 1 from using the suit premises for any purpose other than that of the coal storage business.
I may make it clear here that the plaintiff himself is not sure whether the purpose was one of coal storage or whether it was a wider purpose of coal business of which coal storage was just a part. The fact that the plaintiff himself is unsure about the correct position in this behalf itself gives some indication about the real position, namely, that there existed no such restrictive covenant at all. But this by itself may not be enough to outweigh the conclusion arrived at by the lower Appellate Court. The lower Court's reasoning in this behalf is to be found in paras 18 and 19 of its judgment. The said reasoning could be best set out in the learned Judge's own words. This is what the learned Judge states in para 18 of the judgment setting out five circumstances in support of the restrictive covenant.
'I will now refer to various circumstances which strongly support the case of the plaintiff. In this connection, the first circumstance is this. The very name of the defendant No. 1 company viz. 'The Bengal Coal Supplying Firm', in whose favour the lease was taken, very significantly suggests that the purpose for which the lease was taken by that firm must be for the self same business of that firm, viz. for doing business in charcoal and coke. Secondly, both Narsing and Vyankatesh have admitted in their evidence that when they took the premises on lease they were not doing any business other than coal business. Naturally, therefore, when they asked for the premises from the plaintiff they must have asked it for doing their own business. Thirdly, they have further admitted that along with bricks and grain they were also storing coal in those sheds. What was the extent of the bricks and grains they used to store has not come on record. In the absence of any evidence to that effect, it would be reasonable to hold that defendant No. 1 must have made use of the sheds predominantly for their coal business. Fourthly, as far back as in 1947 and 1950, the plaintiff by two notices at Exhs. 60-D and 62-D, protected for making use of shed for the purpose other than the one for which they were let. Fifthly, assuming for a moment that defendant No. 1 had stored bricks, foodgrains and tyres as true, still as the period of storage of these goods was for very short duration, it would be more reasonable to infer that they must have stored these goods merely as a matter of convenience rather than as and by way of right to make the use of the premises as a storage for these goods.'
The last circumstance which according to the learned Judge is the clinching circumstance is referred to in para 19. Para 19 of the judgment as follows :
'Then there is another clinching circumstance. It is of significance to note that defendant No. 1 had chosen to sublet the sheds to defendant No. 2 who could carry on the business in the same commodity charcoal. Why should he have chosen defendant No. 2 for that The simple answer is that defendant No. 1 wanted to blanket his act of subletting, and they did blanket it by representing to the plaintiff that Janata Charcoal Depot is the branch of their business, let plaintiff may not seek possession from them on the ground of unlawful subletting.'
7. To my mind, each one of the circumstances mentioned by him is either equivocal or irrelevant. But I must hasten to add that if these were the only circumstances available for the Court's consideration perhaps it could be said that the conclusion arrived at by him was a question of appreciation of evidence, pure and simple and that the conclusion which appears to be merely erroneous is not necessarily irrational or illegal conclusion. But what the learned Judge has done is that the most important circumstances are just overlooked by him and if these circumstances are taken into account, the conclusion arrived at by him cannot be held to be a rational conclusion at all. I will, therefore, firstly deal with each of the circumstances mentioned by the learned Judge and point out the equivocal or irrelevant character of the same.
i) It is true that the very name of defendant No. 1 firm is 'The Bengal Coal Supplying Firm' and the rent receipts have been passed in favour of that firm. Normally this would mean that the lease was given to the firm for the purpose of carrying its own lawful business, whatever it might be. The fact that the tenant was carrying on a particular business at the time of the inception of the lease would not mean that the lease was given particularly for that business. In this connection there would be no particular difference in principle by virtue of the fact that the tenant was a firm and not an individual. Even a firm can lawfully switch over to some other business after following the procedure under the Partnership Act. My attention was not invited to any provision of the Partnership Act by virtue of which the firm which is a tenant has to satisfy the Registrar of firm that it has obtained it landlord's consent before switching over to another business. I called upon Mr. Naik to satisfy me that the said firm could not change its business. He was not able to make any statement that it was not open for the partners of the firm to change its business. A firm may start a particular business under a particular name and by just making a modification in the objects of the partnership, with the permission of the Registrar of the firm, change the nature of business. The name could be suitably amended for the purpose of Indicating the change of the business. In the very instant case the name suggests coal business, but the learned Judge has observed that even coke business was carried on. A reference to section 6 of the Rent Act would show that, within the contemplation of Rent Act, the purpose of business and purpose of storage are independent purpose. In the instant case the name of defendant No. 1 firm suggests that its business is of supplying coal which denotes sale of coal. Supposing defendant No. 1 started using the suit premises exclusively for the purpose of storage of coal and the work of selling coal was done in some other premises, could it be said that he had changed the nature of his business and, hence, has made himself liable for eviction? It may be that answer to this question may be given by saying that the business of selling coal and storing are allied businesses. They may be so; but they are distinct businesses spelling distinct purposes of letting.
Even assuming that the two purposes are alike and hence dealing in coal and storing coal were within the contemplation of the parties at the time of the original lease, is there anything on record to show, excepting the bare word of the plaintiff, uttered after more than 7 years that was the exclusive purpose of the lease? As stated above, it is equally possible to hold that the lease was to the firm and the fact that the firm was carrying on business of coal was a fortuitous circumstance not related to the lease at all. The plaintiff had not stated anywhere that if, instead of carrying on the firm's business, the firm was carrying on the business of grocers or business of dealer in paints, he would not have given lease to the firm at all. I will deal with this aspect of the matter from another stand point in the later part of this judgment. Here I may state that the above mentioned first circumstance mentioned by the learned Judge is not at all an unequivocal circumstance.
(ii) The second circumstance relied upon by him is that both Narsing and Vyankatesh have admitted in their evidence that when they took the premises on lease they were not doing any business other than coal business. The learned Judge, therefore, concluded that they must have asked for the lease of the plot of land for their coal business. To my mind, event his conclusion is not the one which necessarily follows. It is on record that these two persons have been carrying on various businesses till the year 1938 when they started this coal business. The Court can readily visualise the working of their mind when they come to the plaintiff asking for lease of the land, they were asked by the plaintiff as to what business they were carrying on and they might as well have stated at that time that they were carrying on coal business. This might have been just one of the questions totally unrelated to the purpose of the lease. After the conversation involving such question and answer, lease must have been given. But that does not mean that the lease was restricted to coal business only. The conclusion could be even the one which I referred to above, namely, that the lease was given to the partnership firm for business purpose, the nature of business having remained unspecified. The only restriction which could be conceived of, in the absence of evidence on either side, would be that a lawful business would be carried on by the tenant in the premises and further that the business should not be of a hazardous character resulting in any damages to the plaintiff or to his property or perhaps even to the occupants in the neighbourhood. What I am at pains to point out is the learned Judge's somewhat irrational approach to the question. What the learned Judge has done is that he has tried to visualise as to what must have happened in the year 1938 when defendant No. 1 asked for the lease from the plaintiff and when the plaintiff gave the lease of the plot of land to the firm. It is not as if that any evidence has been led and from that evidence the impugned conclusion is arrived at by the learned Judge. The learned Judge is, more or less, speculating a conjecture. If he was to conjecture, he should also see the other possible conjectures.
Moreover, the conjecture made by him also does not help the plaintiff. His conjecture is that the two partners, Narsing & Vyankatesh, must have asked for the premises for doing their own business. Assuming that this conclusion is correct, it does not follow that only understanding was arrived at between the parties at the time of the lease by virtue of which those two persons were restrained from doing any other business. Assuming that they mentioned at that time to the plaintiff, as observed by the learned Judge, that they were carrying on coal business, it cannot be inferred that they gave any warranty or guarantee or assurance to the plaintiff landlord that at no time in the future they would switch over to any other business. If that was so, the second circumstance relied upon by the learned Judge is wholly irrelevant and the conclusion arrived at by him is quite irrational.
(iii) The third circumstance referred to by the learned Judge is that defendant No. 1 themselves have made the use of the shed predominately for their coal business. I fail to see how from this circumstance the result follows that the original intendment of the lease was for coal business exclusively. The circumstance is thus, entirely irrelevant.
(iv) The learned Judge also referred to the two notices given by the plaintiff in the year 1947 and in the year 1950 (Exh. 60 & Exh. 62 respectively). I have already referred to the above notices. In the first notice the plaintiff has stated that the purpose of the lease was business of coal etc. In the second notice it is stated that the purpose of the lease was coal business exclusively and that the defendant had been using the property for some other purposes. The learned Judge stated that these notices have been given as far back in 1947-50 and, therefore, the statement made therein must be correct. The conclusion is not only misleading but is one which is the result of abstention from application of mind to the circumstance which more than counter-balances this inference. No doubt in the year 1947, the plaintiff stated in the notice that the purpose of the lease was of storing coal etc., but as will be presently pointed out, in the instant case the significance of the word 'etc.' has been ignored by the learned Judge in a somewhat unhappy manner. But I will come to that part a little later. It is also true that in the next notice of the year 1950, the plaintiff has again asserted that the purpose of the lease was restricted to business of coal only and that defendant No. 1 had been using it for other purposes. But what is significant is that the tenant defendant No. 1 has given replies to both the notices stating that the purpose of the lease was not limited to the coal business at all. If the learned Judge wanted to take into account the effect of these notices, it was necessary for him to consider the effect of these replies also. The Court cannot be said to be acting judicially and cannot be said to be exercising its jurisdiction in a judicial manner if the statements made by the plaintiff are not taken into account and those made by the defendant are totally ignored. The learned Judge has committed this serious mistake in a two-fold manner. Firstly, the learned Judge has referred to, as piece of evidence, the plaintiff's statement in his oral evidence. The learned Judge states that the plaintiff has categorically deposed in his evidence that the lease was given for the purpose of coal business only and this statement of the plaintiff has been relied upon by the learned Judge as if it is the statement coming from the oracle and as if it is something beyond reproach. What the learned Judge has lost sight of is that witnesses for defendant No. 1 made a similarly categorical statement that the purpose of the lease was not restricted to coal business at all. The learned Judge made no mention of this evidence given by the defendants. Likewise, he has referred to the notice given by the plaintiff asserting the restrictive covenant, but has just overlooked the tenant's deposition stating in no uncertain terms that there existed no such restrictive covenant at all. The matter is thus at large. I can appreciate that if the learned Judge had taken into account this circumstance and had still come to the conclusion that the evidence of the plaintiff inspired better confidence, the position might have been different. But it appears that he has not applied his mind to this part of the defendant's evidence at all. Such appreciation of evidence is certainly very much vitiated.
(v) The fifth circumstance that the learned Judge refers to is, in fact, no circumstance indicative of the restrictive covenant at all. While referring to the said circumstance, the learned Judge implicitly holds that defendants No. 1 used to store not only coal but bricks and foodgrains also on the plot of land. But his inference is that these articles must have been stored by the defendants only for a short period. The fact that it was stored for a short period, according to the learned Judge, is the circumstance showing that the purpose of the lease was coal business exclusively. I fail to see how such conclusion could ever be arrived at. The fact that the plaintiff used to store articles other than coal in the suit premises, would, if at all, give rise to the conclusion that storage of other articles was not taboos; the conclusion cannot be that the shortness of the period of such storage emphasize the exclusive character of the purpose. The conclusion is, therefore, plainly irrational.
(vi) The last circumstance relied upon by the learned Judge is even less justified and is, as a matter of fact, devoid of any basis whatsoever in evidence. The circumstance is that in the year 1952-53 shed 'A' was let out by the plaintiff to defendant No. 2 and that defendant No. 2 was carrying on coal business in the shed. It is not brought on record that defendant No. 1 had restricted the second defendant's user of the shed to business in coal only. Significantly enough, my attention is not invited to anything on record showing that any condition was put by defendant No. 1 upon defendant No. 2 enjoining upon him that he could not use said shed 'A' for any purpose other than coal business. The mere fact that defendant No. 2 was also carrying on coal business would not mean that defendant No. 1's original lease was restricted to the purpose of coal business only.
But what is more serious is that an inference is drawn by the learned Judge to the effect that there was a sub-letting done by defendant No. 1 to defendant No. 2 and the fact that shed 'A' was given to defendant No. 2 for coal business was an effort to blanket the act of sub-letting.
In the first place it is impossible to find any factual or evidential justification for such an inference. The learned Judge has himself held that there was no sub-letting of the plot of land by defendant No. 1 to defendant No. 2 at all. Secondly, there is no suggestion made to defendant No. 1 or defendant No. 2 that this entire transaction was of any collusive or fraudulent character. There is neither any pleading nor any evidence led by the plaintiff nor my attention has been invited to any suggestion having been made either to defendant No. 1 or defendant No. 2 that Janata Charcoal of defendant No. 2 was a camouflage for concealing the transaction of sub-letting. The only circumstance that the learned Judge has noticed is that defendant No. 1 carried on the business of coal till 1950 and defendant No. 2 also carried on the business of coal from 1952-55. From this the learned Judge wants to rush to the conclusion that there was a camouflage intended by the parties. Such an inference raised in the absence of any suggestion to that effect to defendant No. 1 or defendant No. 2 or their witness is quite unwarranted and is something which vitiates the ultimate conclusion. It is, thus, clear that there is nothing in the reasoning of the Appellate Court which can be said to be incontrovertible, to put it at its mildest.
8. Moreover, it can be said that the above circumstances have been taken into account by the learned Judge cumulatively. The impugned judgment does not give an indication that any one of the circumstances by itself would have been sufficient for holding the restrictive covenant set up by the plaintiff-landlord to be proved. It is the total effect of all the so-called indicative circumstances that has led him to the conclusion to which he has arrived. I find that some of the circumstances are wholly of equivocal character and at least two of them are totally irrelevant and one of them is based on no evidence whatsoever. It cannot be said that the learned Judge himself would have arrived at the same finding if he was to examine the effect of only the two equivocal circumstances namely, the first and the second. The argument is, therefore, possible that even if there existed no positive circumstance in favour of the tenant, still the above finding was not binding upon me in my writ jurisdiction.
9. But the position is even worse than that. I find that there are certain circumstances which have just been ignored by the learned Judge.
(a) The first such circumstance is that immediately when the landlord made an assertion of certain restrictive covenant relating to the purpose of the lease, immediately the tenant came out with the reply that there existed no such covenant. In spite of this assertion by the tenant by the tenant-defendant No. 1 and in spite of the fact that according to the plaintiff-landlord defendant No. 1 changed the user of the premises by using them for purpose other than the purpose for which, according to the landlord, the premises were let out, the landlord did not move his small finger for a full period of 18 years in connection with the change of user.
(b) Secondly, there was a settlement arrived at between the parties in the year 1951 which is evidenced by the document (Exh. 64) dated 9-4-1951. It is already pointed out above that the terms of the original lease were not evidence by any document as such. But it is to be noted that by the settlement dated 9-4-1951 almost a new tenancy is created in favour of defendant No. 1. It is stated above that it was the landlord's contention that much smaller area was given on lease to defendant No. 1 in the year 1938. His notice dated 31-8-1950 discloses his grievance that defendant No. 1 had encroached upon the adjoining and belonging to the plaintiff so that defendant No. 1 was in illegal possession of a larger area than was originally leased to him. By the settlement dated 9-4-1951 (Exh. 64) the tenant was allowed to retain the said larger area and the rent of the original area plus the larger area was enhanced from the original rent of Rs. 25/- to the amount of Rs. 65/- per month. It is well-known and it was no disputed before me by Mr. Naik that if the standard rent of the premises in the present suit premises and the original premises let out in the year 1938 the same, it would be Rs. 25/- and not Rs. 65/- per month and if the landlord had enhanced the rent without giving additional space to the tenant, he would be committing an offence under the Rent Act. It is nobody's case that he has committed any offence. May we take the way we like, there is no escape from the conclusion that a new tenancy was created by the plaintiff in favour of defendant No. 1 by the settlement dated 9-4-1951 giving additional area to the tenant and charging more rent to him on that account. The fact that such a tenancy has been created is evidenced by the document (Exh. 64). But significantly enough the said document does not give any indication about any restrictive convenant. It is one thing to have an oral tenancy and to contend that restrictive covenant would required to be proved by oral evidence and quite another thing to state that there existed a document for bringing about a fresh tenancy and still to contend that the absence of any reference to the restrictive covenant in the document could be plugged in by the oral evidence. If there ever existed any restrictive covenant there is every reason to expect the landlord to make it clear to the tenant that he was insisting upon the restrictive covenant which he has asserted in his notice. In the absence of any such assertion, it is impossible for the Court to hold that notwithstanding the absence of any such reference in the settlement to the restrictive covenant, the restrictive convenant still exists between the parties.
(c) The third circumstance is that according to plaintiff-landlord, the suit premises sheds B & C were let out by the plaintiff to defendant No. 3 in the year 1961. It is his further contention that defendant No. 3 took those sheds not for the coal business but for the purpose of his business of furniture and of interior decoration in the said sheds. It is common ground that right from the inception, that is to say, at least from the year 1961, defendant No. 3 has been carrying on the business not of coal but of furniture and interior decoration in the said sheds. It is not the plaintiff's contention that this was done by defendant Nos. 1 and 3 by any clandestine process. This fact was known or must have been known to the plaintiff immediately and still the plaintiff has not moved his small finger from the year 1961 till the year 1968 uttering any reproaches as regard such a change of user.
To my mind all these circumstances are extremely eloquent and quite of a tell-tale character. It is well-known that if the Court gives its decision without applying its mind to important pieces of evidence, the ultimate finding cannot be said to be a judicial finding in the true sense of the term and if a judicial finding is wanting, this Court certainly has jurisdiction under Article 227 of the constitution to quash the findings of the learned Judge as also to quash the ultimate decisions of the Court based upon the said finding.
10. At this stage I may refer to two objections coming forth from Mr. Naik to my above mentioned approach. His first contention was that so far as the plea of a new tenancy was concerned, the point was being taken by the petitioner-defendant No. 3 for the first time in this Court and that it was never raised at any time in the lower Court. He also complained that there was no pleading in that behalf and hence he contended that I should not allow the point being raised in this Court.
11. I am afraid that this contention cannot be accepted. The plaint is not being raised by either of the defendants No. 2 or 3 as a new statement of fact. The conclusion that the tenancy was a new tenancy is the result of the plaintiff's own evidence. It is common ground that the area given to defendant No. 1 in the year 1950 was much larger than the area given to him in the year 1938. It is common ground that the rent charged in the year 1950 is much larger than the rent charged in the year 1938. It is common ground that this was done by way of a settlement and a settlement is nothing but a contract between the parties. By the contract arrived at in the form of a settlement, the previous rights of the parties were put to an end and new rights were created, the starting point of which is to be found in the settlement. All these are the admitted facts. It is not as if that the tenants are trying to defeat the plaintiff's contention by stating that a new tenancy was created rescinding the or restrictive covenant. Their contention is that the said new contract served as a piece of evidence to show that no such restrictive covenant ever existed because if it did exist previously, a reference to the same would have been made in the settlement since there was a dispute about its existence. It is, therefore, a futile contention to state that such a point ought to be raised in special pleadings and sought to be proved by any particular evidence and by way of any particular argument. The point arises inescapably just as the admitted facts unfold themselves before the Court.
Moreover, the plea of new tenancy unconditioned by such restrictive covenant is only an additional point. It is an unanswerable point, but the defendants must succeed even irrespective of it. Mr. Naik's objection on this point cannot, therefore, be sustained.
12. The second objection taken by Mr. Naik is that what is recorded by the lower Appellate Court is a finding of facts and his ultimate decision rests exclusively upon appreciation of evidence. Contention is that in my writ jurisdiction I have no power to interfere with the said finding.
I have already indicated that this could be a possible exception to my exercise of the jurisdiction in this case and I have already indicated my reasons for rejecting such a plea. I have pointed out that some of the reasons that found favour with the learned Judge did not give rise to the inference raised by him at all, others were totally equivocal and at least one of them was based on no evidence whatsoever. Such a finding cannot be said to be a finding of fact at all. Moreover, some most important pieces of oral, documentary and circumstantial evidence have not been taken into consideration by the learned Judge. The plaintiff's evidence is given the status of the voice of the oracle whereas the defendant's evidence is totally ignored. Such appreciation of evidence results in nothing but in its own vitiation.
13. There is another aspect of the error in the matter of appreciation of evidence which error is of a legal character. In the instant case, what the plaintiff has pleaded in substance is the restrictive covenant. When a tenancy is given by a landlord to the tenant, normal rule is that it is not subject to the restrictive covenant at all. A lease is a transfer of property and no transfer can be made subject to any restriction; exception to this is to be found only in the case of leases. The landlord for his own benefit can provide for certain restrictions on the user of the leased property. But such restrictive convenants are, from the very nature of things, exceptions to the general rule. If the landlords pleaded such an exception and such a restrictive covenant, it is he who himself must prove it positively. The existence of the restrictive covenant in the matter of user of the property is not to be inferred from the fact that the property was not used for any other purposes. What must be shown by the evidence is that not only that it was not used but that it could not be used. In the instant case, beyond the bald, interested statement of the plaintiff, there exists no positive unequivocal evidence to prove the restrictive covenant.
I am alive to the fact the even if the plaintiff had stated in his evidence that the premises were given by him exclusively for coal business, that would be evidence. But likewise there is the defendant's evidence to the contrary. It is, therefore, a question of word against word. The learned Judge gives no legitimate indication why he chose the plaintiff's word over the defendant's word. The reasons given by him are totally irrelevant and there are circumstances which are pointers to the contrary which have been just ignored by him. In these circumstances the finding recorded by him, cannot be said to be so invulnerable as to beyond this Court's corrective jurisdiction under Article 227 of the constitution.
14. This takes me to the second plea raised by Mr. Naik. By this plea he wants to call in question the finding recorded by both the courts below to the effect that there was no sub-tenancy so far as the suit premises were concerned. Both the lower courts have recorded concurrent finding that what was let out by the plaintiff to defendant No. 1 was an open plot of land. Upon that plot of land, defendant No. 1 constructed sheds and what he let out to defendant No. 3 was not the land but the sheds. The subject matter of the leases were, therefore, different and hence the concept of sub-tenancy could not be imported in this transaction.
Mr. Naik tried to find fault with this reasoning and finding. I am afraid that his contention cannot be accepted. This entire question has been exhaustively considered by this Court in its judgment reported in Dinkar S. Vaidya v. Ganpat S. Govre, : AIR1981Bom190 . There this Court has followed the judgment of a Division Bench of this Court and has held that having regard to the recognition of the doctrine of dual ownership in India, a tenant of a structure is not necessarily a sub-tenant of the land upon which the structure stands. It has been held there that it would be a question of fact in each case. It may be that the tenant might let out the land as well as his structure to his own tenant which would mean that his tenant becomes the sub-tenant in respect of the land and the tenant in respect of the structure. But in the absence of any such sub-tenancy of the land, the presumption would be that the tenant to whom the structure has been let out has only an irrevocable licence in respect of the land on which the structure stands. If there is no letting of the land at all to the tenant of the structure, no question arises of any unlawful sub-letting by the tenant to the so-called sub-tenant. This is the precise view taken by both the courts below and I cannot find any fault with the same. As a matter of fact, the finding that there was no unlawful sub-tenancy because the tenancy by defendant No. 1 to defendant No. 3 was not in respect of the land is the only finding possible. Defendant No. 3 was never given tenancy in respect of the land upon which sheds B & C stands. If he was never given a tenancy the question whether there was a sub-tenancy or not and whether the sub-tenancy was unlawful or not would not arise at all.
15. It was sought to be contended nextly that even though it was held that defendant No. 1 was not guilty of change of user, at least he was guilty of not using the premises for a period exceeding 6 months for the purpose for which they were let out. In support of this contention, Mr. Naik relied upon the reasoning adopted by the learned Judge in para 20 of his judgment. After referring to the various provisions of law, the learned Judge has observed in the said para as follows :
'In this case there is no dispute that last number of years defendant No. 1 firm has not been using the premises for the purpose for which they were let. Narsing has categorically admitted in his cross-examination that since 1950 they are not using any of the sheds for their own business of storing coal etc., and since then they are not in actual possession of the suit premises.'
To my mind, the reasoning reveals some confusion of thought. Once it is held that there was no particular purpose mentioned as a condition of tenancy, the question of not using the premises for any particular purposes does not arise at all. If it is held that defendant No. 1 could use the premises for any business purpose it is futile to contend that for a period of more than 6 months, the defendant did not use the premises for the purpose for which they were let out. This part of the reasoning is, therefore, basically erroneous.
But the above mentioned observation made by the learned Judge disclose another confusion of thought. In the instant case, defendant No. 1 has not used the premises for coal business, probably from the year 1950. But admittedly defendant No. 2 has been used shed 'A' for coal business right from the year 1952-53 till the date of the suit and presumably even thereafter. The area occupied by shed 'A' is 2203 sq. ft. whereas the total area of the land is 7900 sq. ft. Therefore, it can be said that a substantial portion of the suit premises are being used for coal business only. The fault that the learned Judge finds in this position is that the premises are being used for the purpose of coal business, not by defendant No. 1 but by his sub-tenant defendant No. 2. The Court is required to examine whether the tenant has exposed himself to the liability of eviction by virtue of any of the provisions of section 13(1) of the Rent Act. Each of the grounds in the said section 13(1) has to be considered disjunctively, that is to say, independent of each other, not in conjunction with each other. One ground is not to be confused with the other grounds. It may be that in given circumstances defendant No. 1 will be liable for eviction on the ground of unlawful sub-tenancy. But if he has unlawfully sub-let the premises, he would not be exposed to the liability of eviction also on the ground that it was not he but the sub-tenant who was using the premises. When we are considering application of ground mentioned in Clause (k) of section 13(1) of the Act, we have to consider the user by the sub-tenant to be of as same legal efficacy as the user by the tenant and not by the sub-tenant himself. The fact that the user is by sub-tenant and not by the tenant would not invite the application of Clause (k) of said section 13(1) of the Act. The reasoning of the learned Judge based on the said provisions of section 13(1)(k) of the Rent Act and his ultimate decree based on the same cannot, therefore, be sustained.
It need not be stated here specially that if the petition of defendant No. 3 succeeds, the petition filed by defendant No. 1 also must succeed. Once it is held that there was no sub-letting by defendant No. 1 to defendant No. 3 and once it is further held that the ground mentioned in section 13(1)(k) of the Act is not available to the landlord for eviction, it will be seen that no other ground is made out against defendant No. 1, the real tenant of the suit premises.
Both the petitions, therefore, succeed. The decree for eviction passed by the learned trial Judge against defendants Nos. 1 and 3 for eviction as confirmed by the learned Asstt. Judge in appeal stands hereby quashed and set aside and the plaintiff's suit for possession of the said premises against defendant Nos. 1 and 3 stands dismissed. However, in the circumstances of the case, there shall be no order as to costs throughout.