1. The only question that arises in this appeal is, whether the appellant No.1 has sublet, transferred or assigned his interest in the suit premises to appellant No.2 unlawfully and, therefore, liable to be evicted? The question arises in the following circumstances.
2. The appellant No.1 was a tenant of a portion of the residential house known as 'Krishna-Nivas' situated in Limda land belonging to the respondent-plaintiff in the city of Jamnagar and it consisted of two blocks for which he had agreed to pay a monthly rent of Rs.70/- only. The appellant No.1 is a partner in the firm carrying on business of stewarding and lending Agent under the name and style of P.L. Pandya and Co., consisting of five partners and having its offices at Bombay, Bhavnagar, Otha, Veravar, Gandhi-dham, Kandla and Porbandar. The appellant No.1 was looking after the office at Jamnagar and he was required to go to the office at Bombay in about the month of July, 1963. Therefore, he shifted to Bombay with his family consisting of his wife and five children out of which one was a college going son and other four were school going children. The appellant No.1 occupied the block of his son-in-law at Bombay for which he was paying the rent in person. After his stay for about a period of five months in Bombay, he was required to go to Gandhidham, where the aforesaid firm has its office. Before leaving for Bombay he placed appellant No.2 in the possession of the suit premises. The respondent-plaintiff having come to know that appellant has inducted some tenant on the premises and as he was in bona fide and reasonable requirement of the suit premises for his personal use, he filed a suit in the Court of Joint Civil Judge (Junior Division) at Jamnagar, being Civil Suit No.464 of 1963 for the possession of the suit premises joining both the appellants as parties, to the suit as defendants. The appellants who were defendants before the trial Judge filed their written statement contending inter alia, that the appellant No.1 had gone to Bombay temporarily for his business purposes and that appellant No.2 who happened to be his nephew has been put in possession of the suit house and business at Jamnagar for purposes of looking thereafter. The appellants also denied that the respondent-plaintiff required the suit premises bona fide and reasonably for his personal use; and that by passing a decree, they would be put to a greater hardship. The appellants-defendants further denied that any unlawful subletting, transfer or assignment in the suit premises has been made by the appellant No.1 in favour of appellant No.2. On these pleadings, the learned trial Judge raised issues and except the issue of sub-letting he found in favour of the appellant. On the issue of subletting the learned trial Judge found from the facts after appreciation of evidence of both the appellants and certain admitted position therein that the appellant No.1 had illegally transferred the suit property by subletting to the appellant No.2. The learned Judge, therefore, granted a decree for eviction of the suit premises and granted vacant possession thereof as prayed for by the respondent-plaintiff. Being aggrieved with the judgment and decree of the learned trial Judge the appellants went in appeal before the Assistant Judge, Jamnagar by their Regular Civil Appeal No.155 of 1964. The learned Assistant Judge also after consideration of the evidence in details, found against the appellants and held that the appellant No.1 had illegally transferred the suit premises by subletting the same to the appellant No.2 and, therefore, affirmed the judgment and decree of the learned Civil Judge and dismissed the appeal. The appellants, therefore, being aggrieved with the said judgment and decree of the learned Assistant Judge, Jamnagar, have approached this Court by way of second appeal.
3. At the time of hearing of this appeal. Mr. J.P.Joshi the learned advocate, appearing on behalf of the appellants has taken me through the evidence of appellants Nos. 1 and 2 as well as the evidence of the respondent-plaintiff and submitted that the learned Assistant Judge was clearly in error in affirming the judgment of the learned Civil Judge (J.D) inasmuch as, there was no intention on the part of the appellant No.1 of settling in Bombay or at Gandhidham permanently with no intention to return to Jamnagar and the exclusive possession of the suit premises was not handed over to appellant No.2 by the appellant No.1. It was, therefore, urged that considering the circumstances, which have been brought out in the evidence of the appellants-defendants Nos.1 and 2, it has been established that the appellant No1 had not abandoned his intention to return to Jamnagar, but it was on account of the exigencies of the business of his firm that he was required to go to Bombay or to Gandhidham temporarily. It was further urged by Mr. Joshi that the appellant No.1 had left his son by name Kishor who was aged 26 years and was studying in College in charge of the goods and articles left on the suit premises; and that appellant No.2 was put in possession thereof for purposes of taking care of the same and, therefore, this is a case of licence by appellant No.1 in favour of appellant No.2 and for all intends and purposes this is not a case of sub-lease. It was, therefore, urged that reading the evidence of both the parties by both the Courts below was completely erroneous and, therefore, this Court should interfere with the findings of the learned Assistant Judge. On behalf of the respondent-plaintiff if was urged by Mr. Suresh A. Shah the learned advocate that this is the concurrent finding of fact and it has been done after careful appreciation of the evidence from the facts, which have been either established by evidence or which have been admitted by the parties and, therefore, this Court has no jurisdiction to interfere with the said findings. In my opinion, the contention of Mr. Shah for the respondent-plaintiff is well founded. Apart from the concurrent findings. I have also tried to satisfy myself, whether the findings made by both the courts below are justified. It has been found by both the Courts that the appellant No.1 shifted to Bombay with his family and, therefore, his school going children were admitted in the Schools at Bombay. Though within a period of five months, the appellant No.1 was required to go to Gandhidham, there is no evidence on the record adduced by appellant No.1 or appellant No.2 to show that the appellant No.1 had an intention to return to Jamnagar, and that his going either to Bombay or to Gandhidham was for a short period with a specified purpose. The case of the appellant No.1 was, that the appellant No.2 was entrusted with the work of looking after the business at Jamnagar as well as the goods and articles that were left behind by the appellant No.1 in the suit premises, and this was found by both the Courts below, according to Mr. Shah, as not established. Mr. Joshi the learned advocate for the appellants has made a grievance that the appreciation of the case of the appellant No.1 was not proper by both the Courts below. In my opinion, the real question is, whether the act of putting appellant No.2 in possession of the suit premises was relay a transaction of lease or by way of leave and licence is to be gathered from the conduct and circumstances of the parties, established in the evidence. No doubt, the fact of exclusive possession is not conclusive on the question to be determined, whether the transaction is a lease or a licence, but it is always a fact of importance, which the Court has to take into consideration and, prima facie raises a presumption that the transaction was a transaction of lease, unless that position is rebutted by cogent and reliable evidence by the tenant to show that the transaction intended was merely a licence. In my opinion, the learned Assistant Judge was right in affirming the finding of the learned trial Judge that the transaction was a transaction of a lease between appellant No.1 and appellant No.2, inasmuch as, the appellant No.1 had shifted to Bombay with his family and that his son Kishor who continued to stay in Jamnagar had also left the suit premises in exclusive possession of the appellant No.2, as it has been found by both the Courts below that Kishor was stayed with one of his friends. The learned Assistant Judge was right in finding that the explanation of the appellant No.2 that Kishor had gone to stay with his friend on account of the harassment by the landlord is an afterthought and not proved because no effective steps had been taken by either appellant No.1 or appellant No.2 against the respondent-landlord for the alleged acts of harassment. On the contrary, the evidence of the appellant No.1 shows that his son Kishor went to stay with one of his friends because it was convenient for him for purposes for his studies. One more fact which has been considered to be significant by both the Courts below is, an admission of appellant No.2 that he was paying an amount of Rs.100/- to Rs.150/- every month to Kishor. The first explanation of appellant No.2 in this connection was that this amount was being debited to the account of appellant No.1, but thereafter he denied the story and has deposed that a debit was made in the Khata in the books of accounts in the office at Jamnagar. Both the courts below were right in finding that as the best evidence of the relevant entries from the books of account of the office at Jamnagar were not placed on record, an adverse inference should be drawn against the appellants Nos. 1 and 2 and it must be held that this amount was paid by way of rent to the appellant No.1. The learned Assistant Judge was further right in finding that there was no satisfactory evidence to show how and why the appellant No.2 was placed ion the charge of business of M/s. P.L. Pandya and Co., to look after at Jamnagar office. The appellant No.1 though in the written statement contended that the appellant No.2 was required by him to look after the business of Jamnagar, the evidence of both the appellants Nos.1 and 2 shows that appellant No2 has joined the firm of M/s. P.L. Pandya and Co., in June, 1963, and there was no regular appointment order, nor any material placed on the record either by the appellant No.1 or by the appellant No.2 to show that he was required by one of the partners of the firm to take over the charge of the office at Jamnagar. The admission of appellant No.2 that he had left his service at Bhilai permanently and that his coming over to Jamnagar, in absence of satisfactory evidence to show how he joined the office at Jamnagar and on what terms, were considered for purposes of inference that he was not placed in charge of Jamnagar office by appellant No.1. In my opinion, therefore, the admission of appellant No.1 that he shifted along with his family to Bombay, and that his children were admitted in the Schools there; the absence of satisfactory evidence to show, how and on what terms the appellant No.2 joined the firm of M/s. P.L. Pandya and Co., and took over the charge of Jamnagar, if at all he had; and the admission of appellant No. 2 about the monthly payment of Rs.100/- to Rs.150/- to Kishor without producing the best evidence to show the nature of payments as debited to the accounts of appellant No.1. and the fact of Kishor living with one of his friends though he was capable enough to look after the goods and articles of his father, are sufficient for making a finding that the appellant No.1 had transferred his interest in the suit premises by way of subletting to the appellant No.2. In my opinion, therefore, both the Courts below were right in passing a decree for eviction against the appellants Nos.1 and 2 in favour of the respondent-plaintiff.
4. Mr. Joshi the learned advocate for the appellants has filed a Civil Application for recording additional evidence, in view of the fact that the appellant No.1 has returned to Jamnagar in 1968, and that he is enrolled as a member of Chamber of Commerce at Jamnagar. Therefore, if the appellants are given this opportunity to establish the facts averred in the affidavit in support of the application, it would show that the appellant had never abandoned his intention to return to Jamnagar. It was, therefore prayed that the appellants should be given an opportunity to lead additional evidence in this Court.
5. In my opinion, the application is misconceived and should be rejected for the simple reason that the facts were to be found about the subletting on the date of the suit and the cause of action had arisen in 1963 and both the Courts below have found that the appellant No.1 had sublet the suit premises to appellant No.2. even if it is assumed that the appellant No.1 had returned to Jamnagar in the year 1968, in my opinion, it would not have any bearing on the question on which the Courts below were called upon the determine. The application on behalf of the appellant No.1 also deserves to be rejected because it does not come within the terms of Order 41, Rule 27 of the Code of Civil Procedure as the Court from whose decree this appeal is preferred had not refused to admit any evidence which ought to have been admitted, nor there are any circumstances or grounds on the basis of which the Appellate Court may require any documents to be produced or witness to be examined so as to pronounce judgment or any other substantial cause. The result is, therefore, that this appeal fails and is dismissed with costs.
6. Appeal dismissed.