G.K. Misra, C.J.
1. The only point on which the writ application has been pressed is that the tenant-opposite party No. 1 defaulted in payment of rent from April 1967 till March, 1968. The application for eviction was filed in April, 1968.
2. Facts, material to this question may be stated in brief:
The petitioner's case was that the rent payable for the house was at the rate of Rs. 65/- Per month, and the opposite party (No. 11 did not pay the rent from April, 1967. The case of opposite party No. 1 is that the rent agreed upon was Rs. 41 per month and as the landlord did not acceptthe rent despite tender the tenant is not a wilful defaulter.
3. Both the authorities below have concurrently found that the rent agreed upon was Rs. 41/- per month, and the nonpayment of rent was not wilful. The first finding is a pure finding of fact. It is based on some evidence. In exercise of jurisdiction under Articles 226 and 227 of the Constitution this Court does not constitute itself an appellate authority.
Mr. Dev brought to our notice one important fact that though the petitioner asserted in evidence that the agreement to pay rent at the rate of Rs. 65/- per month was from July, 1966, the tenant did not produce rent-receipts from July, 1966, till March, 1967 and as such, adverse inference should have been drawn. Doubtless, this feature ought to have been taken into consideration by the authorities below, but that, in our opinion, does not make the finding any less a finding of fact. It was the bounden duty of the landlord, in the first instance to plead and prove the agreement that in July, 1966, the rent was payable at the rate of Rs. 65/-per month, Except his own testimony no other evidence was adduced and it was open to the tribunals of fact to come to their own conclusion on the evidence available. The finding, that the tenant was to pay rent at the rate of Rs. 41/-, cannot, therefore, be disturbed.
4. The next question for consideration is whether the tenant fell into arrears of rent from April, 1967 till March, 1968, and was a wilful defaulter. It is not disputed that the tenant fell into arrears of rent from April. 1967 till February, 1968.
The only other question for consideration is whether the tenant was a wilful defaulter. The Positive assertion of opposite party No. 1 in the written statement was that the landlord did not accept the rent despite tender. This part of the case was not attempted to be proved by any evidence. Both the tribunals below recorded a finding, that the tenant was not a wilful defaulter, merely on surmises that as the rent was claimed at Rs. 65/- per month, the landlord was likely to have refused the tender. Such a finding is contrary to law as it is based on no evidence. The onus was heavy on the tenant to establish that the tender had been made. If some tender had been proved, it might have been contended in the facts and circumstances of a particular case, that the tenant did not make further tenders as the landord was unwilling to accept the admitted rent. There is no such Case here. The entire finding is based on no evidence, and is an error of law apparent on the face of record. Such a finding must, therefore, be quashed. Theresult of our aforesaid discussion is that the tenant was in arrears and was a wilful defaulter.
5. In the result, the order of the House Rent Controller, Cuttack annexure 3, dated 5-11-1969, and the order of the appellate authority, annexure-4, dated 30-5-1970 are Quashed. The application for eviction is allowed. The writ application is allowed with costs against opposite party No. 1. Hearing fee Rs. one hundred.
No costs against opposite party No. 2.
6. I agree.