1. ' The appellant has challenged in this appeal the order of eviction passed against her by the Rent Controller, Hyderabad, on the ground of subletting and confirmed in appeal by the Second Additional District Judge, Hyderabad. I have heard Mr. Kamaluddin and Mr. S. Masood Ali, the learned Advocates for the appellant and respondents respectively.
2. ' The learned counsel for the appellant contends that the findings of the two Courts below on the issue of subletting are based on misreading of evidence, while it is contended by the learned counsel for respondent that the finding by the Courts below on this issue relates to the determination of a pure question of fact and the two Courts below having found concurrently that the appellant had sublet the premises, the finding is binding on this Court, in the IInd Appeal. As the findings of two Courts below are impugned before me on grounds of misreading of evidence I have gone through the entire evidence recorded in the case with the assistance of the learned counsel for the parties and after careful examination of same have reached the conclusion that the two Courts below while holding that the appellant had sublet the premises misread the evidence in the case.
3. ' The admitted position in the case is that the shop which is subject matter of this appeal (I will hereafter refer it as 'the shop') was let out by respondents Nos. 1 and 2 to deceased Muhammad Yamin the husband of appellant under a written agreement of tenancy dated 9th June; 1975 (I will hereafter refer the said deceased Muhammad Yamin in this judgment as "the deceased"). The deceased used to run the busniess of Footwear in the shop under the name and style of Rainbow Footwear. The deceased died in March. 1977 and after his death the appellant who is an issueless widow was accepted by respondents 1 and 2 as the tenant of the shop. It is also admitted position that respondent No, 3 who is alleged to have been sublet the shop by the appellant is the real younger brother of the deceased. On 21st January, 1978 the respondent instituted rent Case No, 57 of 1978 against appellant and respondent 3 on the ground of subletting and default in payment of rent. The allegation with regard to subletting was made in paragraph 5 of the rent application as follows :- "5. That in the month of October, 1977 the opponent No, 1 without any consent, permission or authority of the applicants sublet the shop No, B/8-1, situated at Akrai Lane, Hyderabad, Sind to Opponent No, 2 Muhammad Sharif who himself is now carrying on the business in the shop."
4. ' The allegation of subletting was denied by the appellant and respondent 3 in their joint written statement and it was asserted that respondent 3 who is younger brother of the deceased is looking after the business of the appellant as a servant. The Rent Controller framed two issues in the case one regarding subletting of shop and the other with regard the default committed by the appellant in payment of rent. After recording evidence of the parties the Rent Controller rejected the plea of non-payment of rent but granted ejectment on ground of subletting of premises by appellant to respondent No,
3. On appeal which was filed by the appellant and respondent No, 3 jointly, the first appellate Court concurred with the order of Rent Controller. From the averments made in paragraph 5 of the rent application it is clear that according to respondents 1 and 2 the act of subletting took place in October, 1977. It is on record that before institution of rent case in January, 1978, on 10th October, 1977 the said respondents through their Advocate Abdul Haq & Co., served a notice on appellant calling upon her to vacate the premises as the same was allegedly required by them on ground of personal and bona fide need. It is pertinent to mention here that although the alleged subletting had taken place in October, 1977 as stated in para. 5 of rent application, no such allegation was made against the appellant in the notice sent on 10th November, 1977. On behalf of respondents 1 and 2 (Mansoor Khan, respondent 1 (Exh. 10) Muhammad Younus (Exh. 11) and Allauddin (Exh. 12) were examined as witnesses. While appellant and respon dent 3 examined themselve as their own witnesses. Respondent No, 1 in his evidence before the Controller stated that appellant without consent of respondents 1 and 2 had sublet the premises to respondent 3, who is running the shop independently. He, however, admitted in crose-examination that the shop is run under the same name and style in which it was run by the deceased. He denied the suggestion that respondent 3 is working in the shop as servant of the appellant. Witness Muhammad Younus stated in his evidence that since about last 6/7 months of the death of deceased he is seeing respondent 3 sitting on the shop in dispute and he runs the shop independently. This witness also admitted in his cross-examination that the name of the shop is the same as was during the lifetime of deceased Muhammad Yamin and that business is run by respondent No, 3 with the same stock which was in the shop at the time of death of the deceased.
5. Allauddin the last witness examined by respondents 1 and 2 stated that deceased died about 6/7 months back and now respondent 3 is running the business alongwith two salesmen for the last 6/7 months. In cross-examination he stated that the widow of the deceased is residing independently and respondent 3 is paying her nothing. He also stated that after the death of deceased, the stock of shoes which was lying in the shop was sold by respondent No, 3 and the shop is run under the same name and style as was run by the deceased. The appellant in her evidence stated that her late husband started the business of footwear in the shop under the name and style of Rainbow Footwear. She denied that she had sublet the shop to anybody after the death of her husband. She asserted that salesmen were working on her behalf in the shop. She gave the names of the persons who were running the shop on her behalf as Nizam, Umer and Muhammad Sharif (Respondent 3). She stated that daily transactions of the shop are reported to her by the salesmen. She further stated that salesmen are paid Rs, 300 each while her husband's brother (Respondent 3) is not paid any salary and is running the shop on her behalf as she cannot sit on the shop herself,. In cross-examination the appellant stated that she paid income-tax of the business run in the shop. She also stated that in the income-tax returns, the details of Nizam and Umer, salesmen are taken into consideration but the name of respondent 3 was not mentioned therein. She denied the suggestion that respondent 3 was employed on salary basis. She admitted that all the accounts of the shop were managed by respondent 3 and that she was not aware of the entire details. She also admitted that she was not aware of the actual income and expenses of the business run in the shop, but stated that the monthly income from the shop may be between 5 and 6 thousand while the investment may be Rs, 80,000. She also stated that there was no written agreement between her and respondent 3. She further stated that respondent 3 is giving her Rs, 300 per month towards household expenses. She denied the suggestion that after October, 1977, respondent 3 is running the business as owner of the shop and that she had no concern with the shop now. Respondent 3 in his evidence stated that appellant is his sister-in-law being the widow of his real elder brother, the deceased. He stated that after the death of the deceased he started managing the affairs of the shop. He also stated that appellant some time pays him about Rs, 100 and Rs, 150 as pocket expenses. He denied the suggestion that the shop is sublet to him by the appellant and that he is running the shop as owner thereof. In cross-examination he stated the monthly income of the shop to be about Rs, 1,400 per month and not between Rs, 5,000 and Rs, 6,000. He further stated that the daily total sale is paid by him to the appellant who pays the income-tax. He admitted that he did not remember the amount of income-tax paid last. He also admitted that he did not get the vouchers and registers of account signed by appellant daily or monthly. He denied that he takes away all the income of the shop and pays only Rs, 300 per month to the appellant. He also denied that he was running the shop as a servant. He stated that the investment in the shop was about Rs, 25,000 which belonged to the appellant. He denied that since October, 1977 he is running the shop as owner thereof. The Rent Controller on the basis of certain contradictions noticed by him in the evidence of the appellant held that subletting was proved against her. One of the facts noticed by the Rent Controller was an admission of the appellant in cross-examination that the daily transactions of the business run in the shop are reported to her in the evening by the salesmen while she had stated earlier that the shop is run by respondent 3 on her behalf. This was treated by the Rent Controller as a material contradiction in the 'evidence of appellant which should be construed against her. The other contradiction noticed by the Rent Controller in the evidence was, that while the appellant had stated in her evidence that she was getting Rs, 300 per month from respondent 3 towards household expenses, respondent 3 had denied in his cross-examination that he takes away all the income of the shop and was paying Rs, 300 only to the appellant. Similarly the statement of respondent 3 that the monthly income of the shop was about Rs, 1,400 per month was found contradictory to the statement of appellant who had stated the monthly income of the shop between 5 to 6 thousand. It was also found by the Rent Controller that while respondent 3 had stated that daily sales .Of the shop are paid to appellant, the appellant had completely denied the same. The above alleged contradictions in the evidence coupled with the fact that respondent 3 had admitted in his evidence that the appellant used to pay him Rs, 100 to Rs, 150 per month as pocket money led the Rent Controller to believe C that appellant had sublet the shop to respondent 3 without written consent of the respondents I and 2.
6. On appeal the first appellate Court though came to the conclusion that no proof in positive terms is available that any particular amount is being paid by respondent 3 to the appellant as rent, yet he found that the circumstances of the case were such that it led him to believe that respondent 3 was paying rent to appellant and was running D the shop in his own right. The circumstances which influenced the first appellate authority to believe subletting in the case were (i) that the appellant had stated in her evidence that she is not paying any salary to respondent 3 and she gets Rs, 300 per month towards her household expenses ; (ii) that respondent 3 had stated that appellant pays him some time Rs, 150 towards pocket money ; (iii) that respondent No, 3 had contradicted the appellant by denying in his evidence that he was paying Rs, 300 to appellant ; (iv) that the appellant had pleaded comp lete ignorance about the total income and quantum of investment in shop ; (v) that respondent No, 3 had stated in his evidence that he pays to appellant daily income of shop which the appellant had not stated in her evidence ; and (vi) that respondent 3 had stated that the income-tax is paid by appellant but the appellant did not state so. The above contradictions and circumstances led the first appellate Court to believe that subletting has taken place. The conclusions reached by the Courts below are based on a complete misreading of the evidence. Apart from it the Courts below while assessing the evidence on the issue of subletting completely ignored the existence of close relationship between the appellant and respondent 3 which had a very important bearing in the circumstances of the case. The appellant is a childless widow of the deceased who was the real elder brother of respondent 3. It is not at all unusual in the society to which the appellant and respondent 3 belonged that on the death of a brother E his childless widow is looked after and her affairs managed by the younger brother of the deceased. In fact in these circumstances the conduct of respondent 3 was not only natural but he was also an heir of the deceased entitled to succeed to the assets left by the deceased. The appellant in her evidence stated that she was not in a position to look after the business after the death of her husband and this statement was not disputed at all. In the circumstances the management of the business by the younger brother of the deceased was neither unusual nor unnatural. The first appellate Court though came to the conclusion that there was no positive proof available on the record to prove the subletting but was satisfied that the circumstances of the case supported the plea of subletting. The first appellate Court referred to the statement of the appellant that she gets Rs, 300 per month towards her household expenses from respondent 3 and the statement of the respondent 3 that he gets Rs, 100 to Rs, 150 as pocket money from appellant and then by referring to the following reply of respondent 3 in cross-examination : "It is incorrect that I take all the income and pay opponent No, 1 Rs, 300 per month only." reached the conclusion that respondent 3 denied that he pays Rs, 300 to appellant which in terms was considered as a contradiction to the assertion made by the appellant in his evidence that respondent 3 pays her Rs, 300 per month towards household expenses. The above conclusion of the first appellate Court is based on a complete misconceived view of the evidence. The denial made by respondent 3 in the above reply was to the suggestion that he takes away all the income and pays only Rs, 300 to appellant. There is no denial of fact in the above statement by respondent No, 3 that he does not pay Rs, 300 per month to appellant. Similarly the first appellate Court wrongly held that the appellant had pleaded complete ignorance about the affairs of business.
7. The appellant made categorical statement not only with regard to the monthly income of business but also with regard to the investment made in the shop. The fact that there was some discrepancies in this regard between the statement of appellant and respondent No, 3 was not enough to conclude subletting of shop. The first appellate Court also found that respondent 3 had stated in her evidence that he paid the daily amount of sale to the appellant but the latter had not said so in her evidence and that respondent 3 stated that the income-tax is paid by the appellant but the appellant did not say so in her evidence. The appellant was never asked any question with regard to payment of daily amount of sale to her by respondent and, therefore, no occasion arose for the appellant to state so in her evidence. Similarly the conclusion of first appellate Court that the appellant had not stated in her evidence that she paid the income-tax is incorrect and contrary to evidence on appellant in her cross-examination clearly stated that she paid income- tax. She also stated that the names of the salesmen Nizam and Umer are disclosed in the income- tax returns but the name of her husband's brother (respondent 3) is not mentioned therein. I have not been able to find any contradiction in the evidence of appellant as stated by the first appellate Court. In fact the first appellate Court completely misread this part of the evidence of the appellant. Similarly the Rent Controller also found that respondent 3 has stated in his statement that daily sales are paid to appellant whereas the appellant had denied the same. I have not been able to find any denial by the appellant in this regard in her evidence. Similarly the contradiction noticed by the Rent Controller in the statement of the appellant and that of respondent 3 regarding report of daily transactions of sale to appellant was of a very minor nature and was not sufficient to justify the conclusion regarding subletting of premises. The Court below also failed to take notice of the fact that before the institution of the rent application the respondents 1 and 2 served a notice on the appellant for vacating the premises and the grounds stated therein were that the agreement of tenancy has expired and that the premises is required by them for their personal and bona fide need. There was no allegation of subletting against the appellant in the aforesaid notice which should have been stated in the normal course in the circumstances- of the case.
8. After considering all the evidence in the case I am of the view that the two Courts below arrived at the conclusion of subletting against the appellant by misreading the evidence. I accordingly accept the appeal, set aside the orders of the Courts below and dismiss the application for ejectment. The appellant will be entitled to costs of this appeal against respondents Nos. 1 and 2.