1. ABDUL KADIR SHAIKH, J.--This appeal by leave is directed against the judgment of Sind High Court allowing a second appeal filed by the first respondent, and there by setting aside the judgment of the Additional District Judge, and in result upholding the order of the Rent Controller by which appellant was directed to handover the possession of demised premises to the respondent.
2. The case relates to property bearing No. F/67-1174, Ghari Khata, Hyderabad which was transferred to Khurshid Ali Khan, the first respondent herein, under P. T. D. Dated 12-6-1963. Admittedly, appellant-Bank is the statutory tenant of the property, on 13-11-1965 Khurshid Ali Khan applied for eviction of appellant-Bank on the ground that the Bank had unauthorisedly sublet the premises to the second respondent, namely, the Chamber of Agriculture of Hyderabad and Khairpur Region.
3. Appellant and second respondent denied the allegation, and it was stated on behalf of the Bank that Mr. Pir Bux who was the Chairman of Bank and also the Joint Secretary of the Chamber of Agriculture used to do some office-work, in view of his personal convenience in the demised premises, but this was only for a short period, and no portion of the demised premises was ever used or occupied by respondent No. 2 which has an office of its own in the District Council Shopping Centre.
4. The Rent Controller, Hyderabad after recording evidence of the parties, upheld the plea of the landlord and passed an order of eviction against the Bank: However, on appeal by the Bank learned Additional District Judge, Hyderabad reversed the finding of the Rent Controller, and by the judgment, dated 27-3-1967, set aside the order passed by him On a second appeal at the instance of the landlord, the High Court set aside the judgment of the first appellant Court and allowed the appeal by the judgment dated 8-5-1967. Letters Patent Appeal filed by the Bank on a question of law was dismissed by a Letters Patent Bench of the same High Court by the judgment dated 24-8- 1971.
5. Leave to appeal was, however, granted by this Court in order to consider the question whether the High Court has acted its breach of the provisions of section 201 of the Code of Civil Procedure by setting aside the judgment of the first appellate Court.
6. After hearing the learned counsel for the parties, we find that learned Additional District Judge as the first appellant Court held as al finding of fact that the landlord had failed to prove the assertion that appellant-Bank. This is what he observed in his judgment:- As regards the subletting of the premises in question, there is As no evidence at all to show that any rent passed from the Chamber to the Agricultural Development Bank. So far the contention with regard to the possession of the portion of the premises with the Chamber of Agriculture at present is concerned, there is only evidence of the respondent and his witness Abdul Waheed Khan in support of it. Abdul Waheed Khan also deposed mainly to the effect that he has seen the sign- board of Chamber of Agriculture on a portion of the premises in question. There is nothing to show that the actual possession of the portion of the premises is with the Chamber of Agriculture if at all.
7. There is only an interested oral word of the respondent in support of that contention. On the other hand, that of the Managing Director of the Agricultural Development Bank Mir Pir Bux and its Manager, Abdul Hameed Ansari has rebutted it. According to them, the pad with the same address of the Bank and Chamber and the same telephone number is being used because they were printed in plenty in the beginning and they are not able to dispense with them as the chamber cannot afford to do it. They have deposed that the premises have never been sublet to the Chamber at any the. I have already stated that there is no evidence at all that at any the rent passed from the Chamber of Agriculture to the Agricultural Development Bank, supporting the view of subletting of the portion of the premises in question. Even the present possession of Chamber of Agriculture of the portion of the premises has not been proved by sufficient and satisfactory evidence. In any case, there is only an interested word against a word, which cannot possibly prove a case of subletting in favour of the respondent. As already stated by me, burden of proof heavily lies on the respondent to prove the case of subletting. In my view, he has failed to discharge it satisfactorily. Accordingly, I find that the respondent has failed to prove satisfactorily that the Agricultural Development Bank sublet the premises in question to the Chamber of Agriculture, Hyderabad and Khairpur Region. In my view, therefore, the impugned order is liable to be set aside."
8. This finding has full support in evidence recorded in the case. However, the learned Judge in the High Court who heard the second appeal on taking a different view of facts set aside the judgment of the first appellate Court. There is, therefore, great force in the plea raised by appeal the learned counsel appearing for the appellant that interference by the High Court on a second appeal was wholly unjustified in law. This appeal must, therefore, succeed and is accordingly allowed with the exult that the impugned judgments and the one passed by the learned result District Judge dated 27-3-1967 allowing the appeal of the appellant and dismissing the ejectment application of the first respondent held. In the circumstances, however, the parties are left to bear is their own costs.