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PETITIONER: SMT. RAJBIR KAUR & ANR.

       Vs.

RESPONDENT: S. CHOKESIRI & CO.

DATE OF JUDGMENT09/08/1988

BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) PATHAK, R.S. (CJ)

CITATION:  1988 AIR 1845            1988 SCR  Supl. (2) 310  1989 SCC  (1)  19        JT 1988 (3)   593  1988 SCALE  (2)461  CITATOR INFO :  R          1989 SC1141  (18)  E&D        1989 SC1416  (9)  RF         1992 SC1696  (5)

ACT:     Civil  Procedure Code, 1908: Order 26 rule 9,  Order  39 rule 7 and section 115-Commissioner appointment of-By Court- Notice  to parties not necessary if purpose  of  appointment would  be  defeated  or frustrated-Revisional  Court  to  be reluctant to embark on independent reassessment of  evidence and supplant its own conclusion.    East  Punjab Urban Rent Restriction Act, 1949:  Sections 13 an 15 (5)- Tenant-Eviction on ground of sub-letting-Right to enjoyment of property to be for  consideration-Concurrent finding   with  regard  to  exclusive  possession-   Whether amenable to reversal in revision.     Transfer of’ Property Act,  1882: Section 105-Lease  and licence-Distinction between-Determined by the law and not by the  label parties choose to put upon it-Right to  exclusive possession Determination of’ from acts done by grantee.

HEADNOTE:     The  appellants  had  granted  a  lease  of   commercial premises in favour of the respondent-company, who carried on the  business  in  clothing  and  textiles  in  the  demised premises.  Later, the appellants moved an application  under section  13 of the East Punjab Urban Rent  Restriction  Act, I94Y  seeking eviction of the respondent inter alia  on  the ground that it had unauthoirsdly and without the consent  of the  appel-  lant inducted two sub-tenants-a tailor  and  an ice-cream  vendor-in  two  portions  of  the  premises.  The defence of the respondent in the written statement was  that the  maintenance  of  such booths  had  become  a  necessary adjunct  of  all big shops in modern shopping  centres,  and that the respondent remained in the exclusive possession  of the demised  premises.     The  appellants  relied particularly on the  Report  and evidence  of  the  Court-Commissioner  who  in  his   report substantially   corroborated  appellants’  charge  of   sub- letting.  On the other hand, the respondent relied upon  the agreements  entered into by it with the alleged  sub-tenants

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which, according to it, clearly excluded any possibility  of sub-letting. The respondent also examined M.L. Sharma, (R.W. 3)  a  senior  architect in  Chandigarh  Administration  who                                                   PG NO 310                                                   PG NO 311 produced   the  Plans  (Ext.  R.  4)  relating  to   certain alterations in the demised premises.     The Rent Controller, on an appreciation of the evidence, was persuaded to the view that while the allegations of sub- letting  in favour of the tailor had not  been  established, the case of sub-letting so far as the Ice-cream parlour  was concerned  had  clearly  been  established.The          Rent Controller  held that the evidence on record  indicated  the exclusive  possession  of M S Kwality Ice  Cream.  The  Rent Controller  further  held that in the circumstances  of  the case it was also legitimate to draw an inference, and  raise a presumption that monetary consideration alone had prompted the respondent into the transactions.     The  respondent  filed  an appeal  before  the  District Judge,  and the Appellate Authority affirmed the finding  of the Rent Controller on the question of sub-letting in so far as  the  Ice Cream Parlour was con-  cerned.  The  Appellate Authority  also  found that even in the case of  the  tailor there was sub-letting.     In Civil Revision, the High Court upon a re-appreciation of  the  evidence set aside the concurrent  finding  of  the Courts   below  in  regard  to  the  element  of   exclusive possession and set-aside the order of eviction passed by the Courts  below.  The  High Court  relied  on  the  agreements between the respondent and the sub-tenants and held that the conditions   prescribed in these documents did  prima  facie indicate  that  it was a case of licensees and not  of  sub- letting.  The  High  Court  took  note  of  the   procedural objection in regard to the appointment of the local Commis-- sioner without notice to the respondent, and was of the view that  there were circumstances to show that his  report  was not factually correct.     On  behalf of the appellants it was contended  that  (i) the  High Court was in error in interfering, in exercise  of its  revisional jurisdic- tion, with the concurrent  finding of fact recorded by the courts below; ; (ii) the reliance on the High Court on the evidence of R.W. 3 and Plans  (Exhibit R.4)  on  the  point  of  exclusive  possession  was  wholly misplaced   (iii)  a finding of fact which  was  the  result purely  of appreciation of oral evidence by the trial  court could  not be interfered with by  an Appellate-Court and  a- fortiorari in Revision; and (iv) the view of the High  Court as  to  the alleged infirmity  of  the  Court-Commissioner’s report was erroneous.     On  behalf of the respondent it was contended  that  (i] where  a  finding of fact was shown to  have  been  rendered infirm  and  vitiated  by  a  misreading  of  evidence,  the                                                   PG NO 312 Revisional jurisdiction under the Act, which was wider  than that  under section 115 C.P.C. could be invoked  to  correct errors  even  in findings of facts; [ii] the  finding  of  a question  of sub-tenancy being a mixed question of fact  and law, this Court even on an independent consideration of  the whole  matter, should not interfere as one of the  essential ingredients  in  the  concept  of  a  sub-lease,  viz.,  the existence  of monetary consideration, in the form of  Rent’, as  dis-  tinct from consideration by way of  services,  was wholly  lacking;  and (iii) the appear should  fail  on  the correctness of the finding of the  High Court on the lack of exclusive  possession alone; and (iv) the  two  transactions

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lacked the normal and the usual indicia of tenancy and  were no more than mere personal privileges or personal-licence to occupy,   and   that  no  interest  in  the   property   was transferred.     Allowing the appeal, this Court,     HELD:  1.  One of the twin principal tests  by  which  a lease  was  distinguishable from  the  relationship  created under  a  licence is the element of the right  to  exclusive possession  involving  the transfer of an  interest  in  the property;  the  other being the ’Rent’  stipulated  for  the grant.  The  grant  only of the right to  use  the  premises without  being entitled to the exclusive possession  thereof operates merely as a licence. [323B-C]     Wood v. Leadbitter, 153E.R. 351-354; Glenwood Lumber Co. v. Phillips. [l9O4] A.C. 405-408; Associated Hotel of  India v.  R.N. kapoor, [1960] 1 SCR 368-353; B.M. Lall  v.  Dunlop Rubber  Co.,  [1968] SCR 23, 27; Qudrat ullah  v.  Municipal Board  Bareilly, [l974] SCC 202, 204; Board of   Revenue  v. A.N.  Ansari, [l976] 3 SCR 661, 665 and Khulil ahmad  Bashir Ahmed  v. Tufelhussain Samasbhai Sarangpurwala., JT  1987  4 S.C. 342,346, referred to.     2. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. [323F]     Dipak Banerjee v. Smt. Lilabati Chakkroborty, 4 JT  1987 3 454, 456, referred to.     3. Exclusive possession itself is not decisive in favour of  a lease and against a mere licence, for, even the  grant of exclusive possession might turn out to be only a  licence and  not a lease where the grantor himself has no  power  to grant the lease. In the last analysis, the question  whether                                                   PG NO 313 a  transaction  is  a  lease or  a  licence  "turns  on  the operative  intention of the parties" and there is no  single litmus-test to distinguish one from the other. [324C-D]     Cobb  v.  Lane,  [l952] 1 All  E.R.  1198;  Merchant  v. Charter,  [19773  3 All E.R. 918, 922 and M.N.  Clubwala  v. Fida Hussain Sahel, [l9d4l 6 SCR 642, referred to.     4.  In  deciding whether a grant amounts to a  lease  or only  a  licence, regard must be had more to  the  substance than  the form of the transaction. It is determined  by  the law and not by the label the parties choose to put on it. To give  exclusive possession, there need not be express  words to  that effect; it is Sufficient if the nature of the  acts done    by tie grantee show that he had and was intended  to have  the right of exclusive possession. The fact  that  the agreement  contained  a  clause that no tenancy  was  to  be created will not, of itself, preclude the instru- ment  from creating a lease. [l327G-H; 328A]     B.M.  Lall  v. Dun(op Rubber Co., [l968j 1 SCR  23,  Z7, referred to     5.  The scope of revisional jurisdiction depends on  the language   of   the  statute   conferring   the   revisional jurisdiction. Revisional jurisdiction is only a part of  the appellate jurisdiction and cannot be equated with that of  a full-fledged  appear. Though the revisional  power-depending upon  the  language of the provision--might  be  wider  than revisional  power  under section ˜51 of the  Code  of  Civil Procedure,  yet  a revisional court is not second  or  first appeal. [330H; 331A]     6.  When  the findings of fact recorded  by  the  Courts below  are  supportable  on  the  evidence  on  record,  the revisional  Court must, indeed, be reluctant to embark  upon an independent re-assessment of the evidence and to supplant a  conclusion of its own, so long as the evidence on  record

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admitted  of  and supported the one reached  by  the  Courts below.  In the circumstances, the concurrent finding  as  to exclusive  possession  of  M/s  Kwality  Ice-Cream,was   not amenable to reversal In revision. [331B-D]     7.  The question whether the statement of the  witnesses in  regard  to what was amenable to  perception  by  sensual experience  as to what they saw and heard is  acceptable  or not is the area in which well-known limitation on the powers of  the appellate Court to reappreciate the evidence  falls. The appellate Court, if it seeks to reverse  those findings                                                   PG NO 314 of  fact,  must give cogent reasons to demonstrate  how  the trial Court fell into an obvious error. [33H; 335A]     Watt  v.  Thomas, [1947] A.C. 484, 487, 488;  Benmax  v. Austin  Motor Co. Ltd., 119551 2 W.L.R. 418, 422  and  Sarju Pershad  v.  Jwaleshwari 4Pratap Narain Singh,   [1950]  SCR 781, 783; referred to.     8.  It  is no doubt true that in the  present  case  the order  of the trial court appointing a Commissioner did  not in   terms   direct  the  parties  to  appear   before   the Commissioner. There is this infirmity in the proceedlngs  of the  Commissioner. But It is possible to construe the  power to  appoint a Commissioner to inspect the extant  state  and natur  of structures as not confined to Rule 9 of  Order  26 but referable to Rule 7 of Order 39 CPC where the court  can dispense  with prior notice, should it appear to  the  court that  the  very  object  of  making  of  appointment  of   a Commissioner  would be defeated and frustrated by the  issue of prior. [335E-G ]     Latchan Naidu and Anr. v. Rama Krishan Ranga Rao Bahadur Bobbili Samasthanam, AIR 1934 Madras 548.     9.  A more careful examination of the context  in  which M.L.  Sharma, the senior architect, who produced Ext.  R.  4 was  examined  shows  that  Ext. R. 4  was  relied  upon  in rebuttal of and in answer to an Altogether different ground, i.e,, the ground of unauthorised structural’alterations  and the  alleged  damage caused to the building thereby  and  to show that the structural alterations had been authorised  by the  first  appellant.  It is quite  plain  that  Respondent itself did not seek to rely on this evidence on the point of exclusive possession or lack of it. Reliance on the plans to take away the effect of the positive evidence on record  was not, therefore, justified. [330D-E, G]     10.  In  the present case, the  appellants  specifically pleaded "sub- letting". Respondent understood that  pleading as  to imply all the incidents of sub-letting including  the element  of ‘Rent’  and specifically traversed that plea  by denying the existence of consideration. Parties went to  the trial  with full knowledge of the ambit of the case of  each Other.  In the circumstances the pleadings would require  to be  construed liberally. [336F]     Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; referred to.                                                   PG NO 315     11.  The  burden of establishing facts  and  contentions which support the party’s case Is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party  has  failed  to establish these  to  the  appropriate standard,  he will lose. although the burden of proof  as  a matter  of  law remains constant through out  a  trial,  the evidential burden which rests initially upon a party bearing the  legal  burden, shifts according to the  weight  of  the evidence  adduced by the    party during the trial.  In  the circumstances of the case, the appellants having been forced by the Courts below to have established exclusive possession

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of  the Ice-Cream Vendor of a part of the  demised  premises and  the  explanation  of the  transaction  offered  by  the respondent  having  been  found by the Courts  below  to  be unsatisfactory  and unacceptable, it was  not  impermissible for  the Courts to draw an inference, having regard  to  the ordinary course of human conduct, that the transaction  must have been entered into for monetary considerations. [337F.H; 338A-B]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4077  of 1982.     From  the  Judgment and Order dated 23.8.  1982  of  the Punjab  and  Haryana High Court in Civil Revn. No.  2588  of 1980.     G.L.  Sanghi,  S.K. Mehta, M.K. Dua, S.M.  Tandon,  P.N. Puri,R.   Jagannath   Goulay  and  Aman  Vochher   for   the Appellants.     Dr.  Y.S.  Chitale,  H.K. Puri and Ashok  Jain  for  the Respondents.     The Judgment of the Court was delivered by     VENAKATACHALIAH,  J. This Appeal, by Special  Leave,  by the  Landlord  arises  out of and is  directed  against  the Judgment  and  Order dated 23.9. 1982 of the High  Court  of Punjab and Haryana in Civil Revision Application No. 2588 of 1980,   allowing  the  Respondent  tenant’s  appeal   and-in reversal of the concurrent findings of the court below  that there was an unauthorised sub-letting dismissing Appellant’s application  under Section 13 of the East Punjab Urban  Rent Restriction  Act,  1949  (Act) for an  order  for  grant  of possession.     There  were other grounds for eviction-one of them  that there  were unauthorised structural alterations; but  having regard  to the limited scope of the proceedings  before  the High Court. those other points do not survive.                                                   PG NO 316     2.  The two appellants-mother and son-as owners  of  the commercial-premises S.C.O, No.  15, Sector 17 E, Chandigarh, granted a lease, under deed dated 25.11.1970, in favour M/s. S.Chokesiri  & Co., respondent fierein. The lease was for  a term-certain of 10 years from 1. 1.1971 under the terms  and on conditions particularised in the Deed. Rent was initially Rs.3,000  per month subject to certain increases  stipulated in  the  lease-deed.  Respondent carries on  a  business  in clothing  and  textiles  under the  name  and  style  ,Saree Sansar" in the demised premises.     The principal ground-and the only ground that  survives- on which eviction was sought was that the respondent had, in about the year 1973, unauthorisedly and without the  consent of the appellants, inducted two sub-tenants in two  portions of the premises who,there after, carried-on their respective businesses of their own in the respec- tive portions so sub- let. One was a tailor, a certain Banwari Lal, who carried on his  business under the name and style "Royal Star  Tailors" and  the other. Agia Ram Lamba, Proprietor of  M/S.  Kwality Restaur-  ant who established a business under the name  and style ,,M/s. Kwality Ice Cream" in the portion sub-let.     3.  The specific defence to this charge  of  sub-letting and  the explanation for the admitted presence of those  two other  busines establishments in the premises had better  be excerpted   from   the   respondent’s   additional   written statement:     "The  respondents  have  not sub-let  any  part  of  the

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demised  premises  to  any one. The  whole  of  the  demised premises are in the exclusive possession of the  respondents and  are  being  used for the purpose  of  carrying  on  the business  of  the  respondents, namely,  selling  cloth  and readymode garments and for purpose subsidiary and ancilliary to the said business . . . . ."     "No part of the demised premises has been sub-let by the  respondent to M/S. Kwality Ice Cream or any tailors. Sector 17 is the most fashionable shopping centre of the city. Most of  the  customers who frequent this  shopping  centre,  are ultra  modern  persons. It is a matter of  common  knowledge that  in modern shopping centres, the owners of  show-rooms, whatever the nature of their business, keep small booths  to provide cold drinks, ice-cream and paup- corns etc., to  the customers,  who  come there with their  children  and  spend                                                   PG NO 317 considerable  time making purchases in  the show-rooms.  The maintenance of such booths has become a necessary adjunct of all big shops in modern shopping centres."     "Similarly,  is  well-known  that in order  to  run  the business  of selling cloth efficiently, it is  necessary  to have a tailoring  shop on the premises. Every customer,  who makes purchase of cloth in any cloth shop of any consequence wants  consult a tailor in order to know exactly the  length of the material that will be required by him for preparation of  garments  of his choice and most of the  customers  also like  to have the garments stitched by the tailoring  outfit on the premises of the cloth shop, more especially when  the customers belong to sophisticated upper class."     The  respondent  also  produced  and  relied  upon   the agreements dated 13.9. 1973 entered into between  Respondent and  the said Banwari Lal of ,Royal Star Tailors" (Ex.  Mark ‘B’) and dated 17.9.1973 between the Respondent and the said Agia  Ram Lamba of "M/s. Kwality Restaurant" (Ex.  Mark  A’) the  terms  of which, according to the  respondent,  clearly excluded any possibility of sub-letting.     4.  Appellants, in support of their allegation  of  sub- letting relied, particularly, on the Report ’and evidence of Sri S.K. Chhabra, Advocate-Court-Commissioner (A.W.I) who in his  report substan- tially corroborated appellants’  charge of sub-letting; of Ram Lal Malhotra (A.W. 2.) and  Inspector in the Enforcement Office who spoke to the notice  stated to have  been  issued  by  the authorities  in  regard  to  the partitions  effected  in  the premises  to  accommodate  the Tailor and the Ice Cream Vendor; or Ravinder Pal Singh (A.W. 4)  A customer of the Ice Cream Parlour who spoke about  the exclusiveness  of its possession, of Nirmal Singh  (A.W.  5) who   gave  a  similar  account  respecting  the   tailoring establishment;  of Davinder Singh (A.W. 7), the  husband  of the  first  appellant and father of the  second.  who  spoke about  the nature and extent of the alleged sub-letting  and of the exclu- siveness of the possession of the  sub-tenants of the portions in their  respective occupation and  certain other  matters;  and of Kul Rajinderlal (A.W.  8)  who  took photographs  (Exhibits  AW  8/1 to 4) which  are  stated  to disclose  that  the Ice Cream Parlour was open late  in  the night even after the respondent’s textile business had  been closed.     Mehtab  Singh  Gill,  the  second  appellant,  tendered- evidence  as A. W. 9. Some documents were marked and  relied upon in evidence on appellant’s side.     Respondent  examined,  amongst  others,  Rajinder  Kumar (R.W.  2) stated to be an attestor of Exhibits Mark ’A’  and Mark  ’B’;  M.L.  Sharma (R.W. 3)  a  Senior  Architect,  in Chandigarh administration who produced the Plans at (Ext. R.

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4);  Surinder  Mohan (R.W. 5) the  tailor’s  son;  Swatantar Kumar  (R.W.  6)  a partner of  "M/s.  Kwality  Restaurant"; Parveen Jain (R.W. 7) who was examined to contradict A.W.  8 in  regard to the time at which the photographs Ext. AW  8/1 to  4 were taken; Baldev Raj (R.W. 8) the Manager  of  "M/s. Kwality  Restaurant";  Krishan Lal (R.W. 9) an  employee  of "M/s.  Kwality  Ice  Cream" and Des Raj  Jain  (R.W.  10)  a partner of the respondent firm.     The  relevant portions of document (Mark A) dated  17.9, 1973 say:     "(l)   That  1st  party will  provide  Softy  Ice  Cream Machine along with one employee at their premises and the whole  Softy Ice Cream will be supplied by the 1st  part  at his own risk and costs.     (8)  That both the parties can terminate the  system  at any time without any notice. In that case the 1st part will take away the machine from the premises."     The  relevant  recitals in the document (Mark  B)  dated l3.9.1973 provide :     "(1) That the first party will do tailoring work only in the  portion,  i.e., back court yard and he  will  keep  the employees with the prior consent of the second part and  the premises  will be locked in the evening by the second  part. The possession will remain with the second part.     (2)  That  the  arrangement  has  been  done  as  it  is beneficial  to  both  the  parties and  it  will  boost  the business  of second part and the first part be  licencee  in the  premises and licence can be revoked will only (sic)  at any  time without any notice and in that case the  1st  part will remove his machine and other articles. The 2nd                                                   PG NO 319     part will not liable to pay any damages."     5.  The learned Rent Controller, on an  appreciation  of the  evidence on the point, was persuaded to the view  that, while the allegations of sub-letting in favour of the tailor had not been established, the case of sub-letting so far  as the "M/s. Kwality Ice Cream" was concerned, had clearly been established. It is relevant to mention here that sometime in the  year 1976 after the institution of the proceedings  the Tailor  gave up his business and vacated the portion in  his occupation.  In about the year 1980 the Ice Cream Vendor  is also stated to have gone away. Learned Rent Controller  held that   the  evidence  on  record  indicated  the   exclusive possession  of  the  Kwality  Ice  Cream  and  that  in  the circumstances of the cases it was also legitimate to draw an inference,   and   raise  a   presumption,   that   monetary consideration  alone  had prompted the respondent  into  the transactions. Accordingly the learned Rent Controller by his order  dated 2.3. 1979 allowed the  appellants’  application and made an order granting possession.     6.  The  appeal preferred by the respondent  before  the District  Judge was unsuccessful and the order  of  eviction came  to be upheld.The Appellate Authority also  found  that even in the case of M/s.Royal Star Tailors, there was a sub- letting. The Appellate Authority held:     "So  in the cases in hand, two exclusive  portions  have been   parted with for M/s. Royal Star Tailors and for  M/s. Kwality  Ice  Cream and the only conclusion in view  of  the evidence  on  record  could be that the  premises  has  been sublet  and the documents Mark A and Mark B, could  not   be termed  as  licence  deeds by  any  stretch  of  imagination Hence,  so far as the finding on the  ground of  sub-letting is  concerned,  I  do not find any  reason  to  differ  with learned   Rent  Controller and on this point  I  affirm  the finding of the Rent Controller on this part of the issue. "

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   7.  The  High Court, by its order dated 23.8.  1982,  in Civil  Revision  Application No. 2588 of  1980  however,  in exercise  of  its  Revision  jurisdiction  and  upon  a  re- appreciation  of  the  evidence  set-aside  the  concurrent- findings  of  the Courts-below in regard to the  element  of exclusive  possession and set-aside the orders  of  eviction passed   by  the  Courts-below.   Consequently   appellants’ application for possession was dismissed.                                                   PG NO 320     In  reaching  this  conclusion, the  High  Court  placed reliance on the two documents Mark A and Mark B entered into between  the  respondent on the one hand  and  M/s.  Kwality Restaurant and Banwarilal, the Tailor, respectively, on  the other. The High Court  observed:     "A  look  at these documents goes to show  that  it  was specifically  mentioned therein that the possession  of  the demised premises will remain with the petitioner-tenant  and only the work connected with the supply of Softy Ice   Cream and tailoring was allowed to be carried on. Except  for  the charges  for the electricity consumed no rent is payable  by the third parties to the petitioner. The agreements  further envisage  that  the licences could be revoked at  any   time without  any  notice.  The conditions  prescribed  in  these documents  do  prima facie indicate that it was a  cast:  of licences, and not of sub-letting."     Referring  to  what it thought were  certain  procedural objections in  accepting the Report and the evidence of  the Court-Commissioner  (A.W. 1) which had been accepted by  the Courts-below, the High Court was persuaded to this view:     "It appears that the Authorities below have given  great importance  to  a report of the Local Commissioner  who  was appointed  during  the trial for inspection of  the  demised shop. It is not disputed that the order appointing the Local Commissioner  was  passed by the  Rent  Controller  ex-parte without notice to the petitioner.     "In  the first place, there is nothing on the record  to indicate   that the petitioner was at any stage afforded  an opportunity  to file objections to this report as is usually done in such  matters."     In  regard to the correctness of the Report itself,  the High Court had this observation to make:     "The  Local  Commissioner made a report Exhibit  A-1  to the  effect  that there are three separate portions  on  the ground  floor where the demised premises were  situated  and each  of  these portions had a separate access.  A  material part  of  this report is that none of the above  portion  is                                                   PG NO 321 approachable  from inside the demised shop. If  this  report of  the  Local Commissioner would have been  correct,  there may  be something to say in favour of the land-lords on  the points  of  the conferment of exclusive  possession  of  the portions   to  the  third  parties.  There   are,   however, circumstances  to  show that this report  is  not  factually correct."     The High Court placed reliance on certain plans said  to have  been  submitted for effecting certain  alterations  to the  building  which  are  stated  to  have  contained   the signature of the first appellant to come to  the  conclusion that,   consistent   with  the   structural    dispensations indicated  in the plans, the alleged sub-tenants  could  not have  had   exclusive possession. On this aspect,  the  High Court observed:     "These  plans  were  proved  by  M.L.  Sharma,   Senior Architect   (RW.  3)  who  testified  that  they  bear   the signatures  of  Rajbir Kaur  respondent-landlady.  In  fact,

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their  correctness  was  also admitted  by  Devinder  Singh, Mukhtiar  and husband of Rajbir Kaur, andlady. These  plans, according  to learned counsel for the  petitioner,  indicate that   after  entering into the main gate of  the  shop  one could   go  into the portion which was permitted be used  by the  Kwality  Restaurant  for supply  of  Softy  Ice  Cream. Similar  is  the   case with the  portion  occupied  by  the tailor.  The  learned  counsel for the respondents  has  not been  able  to rebut  fact. This being so, the  question  of parting  with  exclusive  possession  of any portion of  the the shop in favour the of the two alleged sub-.tenants, does not arise.                               ( Emphasis Supplied1i)     13. The contentions of Sri G.L.. Sanghi, learned  Senior Advocate in support of the appeal admit of being  formulated thus:     (a)  The  High  Court was in error  in  interfering,  in exercise     of   its  revisional-jurisdiction,   with   the concurrent finding fact recorded by both the Courts-below as to  the  exclusivity of the possession of M/s.  Kwality  Ice Cream  of  the portions in which it was carrying on  of  its business . This was a pure  question of fact the  concurrent finding  on  which was  not  amendable  to  interference  in execise of revisional powers  under the ’Act’;                                                   PG NO 322     (b)  That reliance by the High Court on the evidence  of R.W.  3 and Plans Exhibit R. 4 to show that  the  structural modifications  indicated an accessibility between  the  main premises  and the portions in the occupation of  sub-tenants was  wholly  misplaced as, indeed, Exhibit R. 4  was  itself produced  in a totally different context and for  altogether different  purpose,  viz., to meet the  ground  of  eviction based  on unauthorised construction and not for purposes  of rebutting exclusive-possession of the sub-tenants;     (c) That even if the Revisional jurisdiction of the High Court admitted a re-appreciation of evidence, a finding of a fact  which  was the result purely of appreciation  of  oral evidence  by  the trial court could not be  interfered  with even by an Appellate-Court and a-fortiorari in Revision;     (d)  That the view of the High Court as to  the  alleged infirmity of the Court-Commissioner’s (A.W. 1) report on the ground that his appointment was not preceded by a notice  to the Respondent was erroneous.     9.  Dr.  Chitaley,   learned  Senior  Advocate  for  the respondent,  sought to support the order of the  High  Court contending,  in the main, that, where a finding of  fact  is shown  to  have  been  rendered infirm  and  vitiated  by  a misreading  of evidence and a non-consideration of  material evidence, and where the inference and conclusion drawn  from the  evidence  is non-sequetor the  Revisional  jurisdiction under  the ’Act’ which is wider than that under Section  115 C.P.C.  could be invoked to correct errors even in  findings of facts and that, at all events, the finding of a  question of sub-tenancy being a mixed questions of fact and law, this Court,  even  on an independent consideration of  the  whole matter,  should  not  interfere  as  one  of  the  essential ingredients  in  the  concept  of  a  sub-lease,  viz.,  the existence of monetary-consideration, in the form ’Rent’,  as distinct from consideration by way of services   was  wholly lacking.   Learned   counsel,   however,   emphasized    the correctness of the finding of the High Court on the lack  of exclusive-possession,  on  which  alone,  according  to  the learned counsel  the appeal should fail.     10 . Such controversy as exists in the case turns solely on  whether  the relationship between the Respondent on  the

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one  hand  and  " M/s.’Kwality Restaurant"  and  the  "Royal Star  Tailors"  on  the other, is one  of  sub-letting.  Dr. Chitaley  contends  that  the  two  transactions  lack   the                                                   PG NO 323 normal  and  the usual indicia of tenancy and were  no  more than  mere   Personal  privileges  or  personal-licence   to occupy;   and   that  no  interest  in  the   property   was transferred.     This  case,  indeed, presents once again  the  recurring facets  of a familiar controversy, whether  the  transaction between  a tenant and the person-alleged by the  landlord-to be his sub-tenant is in law really one of sub-tenancy  which often resembles, and is Most liable to be confounded with, a licence. One of the twin principal tests by which a lease is distinguishable  from  the  relationship  created  under   a licence is the element of the right to exclusive  possession involving  the transfer of an interest in the property;  the other being the ’rent’ stipulated for the grant.     In  Wood  v.  Leadbitter,  153 E.R.  351  at  354  Baron Alderson emphasized the element of the transfer of interest:     "A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful. "     In Glenwood Lumber Co. v. Phillips, [1904l] A.C. 405  at 4o8 the distinction was pointed out thus:     "If  the effect of the instrument is to give the  holder an   exclusive  right  of occupation  of  the  land,  though subject  to certain reservations or to a restriction of  the purposes for  which it may be used, it is in law a demise of the land  itself."     It  is essential to the creation of a tenancy  that  the tenant be granted the right to the enjoyment of the property and that, further.the grant be for consideration. While  the definition of ’Lease’ Section 105 of the Transfer   Property Act,  1882, envisages the transfer of a right to  enjoy  the property,  on the other hand the definition of  a  ’Licence’ under  Section  52  of  the  Indian  Easements  Act,    1982 consistently  with  the above, excludes from  its  pale  any transaction  which  otherwise, amounts to an  "easement"  or involves a transfer of an interest in the property, which is usually  involved  in the case of a   transfer of  right  to enjoy  it.  These two rights, viz. easements  and  lease  in their  very nature, are appurtenant to the property. On  the other hand, the grant only of the right to use the  premises without  being entitled to the exclusive possession  thereof operates merely as a licence. But the converse  implications                                                   PG NO 324 of  this  proposition need not  necessarily  and  always  be true. Wherever there is exclusive-possession, the idea of  a licence   is   not  necessarily  ruled  out.   English   Law contemplates  what  are called  ’Possessory-Licences’  which confer  a  right of exclusive-possession, marking  them  off from  the  more  usual  type  of  licences  which  serve  to authorise  acts which would otherwise  be trespasses.  (See: John Dewar; "Licences and Land Law". Modern  Law Review Vol. 49 No. 6 Nov. 1986 and S. Moriorty "Licences and  Land  Law: Legal  principles  and public policies"1984 100  L.Q.R.  37) Thus  exclusive possession itself is not decisive in  favour of a lease and  against a mere licence, for, even the  grant of  exclusive  -possession   might turn out  to  be  only  a licence  and  not a lease where the grantor himself  has  no power to grant the lease. In the last analysis the  question whether a transaction is a lease or a licence  "turns on the operative  intention  of the parties" and that there  is  no single, simple litmustest to distinguish one from the other.

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The   "solution that would seem  to have been found  is,  as one  would expect, that it must depend on the  intention  of the parties" (See Cobb v. Lane, [9521] 1 All E.R. 1198).     In  Merchant  v.  Charters,  [1977]  3  All  E.R.918  at (C.A.) Lord Denning MR referred to the tests for determining whether an   occupier is a licensee or tenant thus: "Gathering the cases together What does it come to? What  is the  test  to  see whether the occupier  of one  room  in  a house  is  a  tenant or a licensee? It does  not  depend  on whether  he or she has exclusive possession or not.   It  on whether the room is furnished or not. It  does not depend on whether  the occupation is permanent or temporary.  It  does not depend on  the lable which parties put on it. All  these are  factors  which may influence the decision but  none  of them is conclusive. All the circumstances have to be  worked out. Eventually the answer depends on the nature and quality of  the occupancy. Was it intended that the occupier  should have a stake in the room or did he have only permission  for himself personally occupy the room, whether under a  contact or not,in which  case he is a licensee?"     11.  In Associated Hotels of India v. R.N.[1960]  1  SCR 368  at 383 this Court referring to the classic  distinction between a lease and a licence said:                                                   PG NO 325     "There  is  a marked distinction between a lease  and  a licence. Section 105 of the Transfer of Property Act defines a  lease of immovable property as a transfer of a  right  to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the  said Act,  the lessee is entitled to be put in possession of  the property. A lease is therefore a transfer of an interest  in land.  The  interest  transferred is  called  the  leasehold interest.  The  lessor  parts with his right  to  enjoy  the property during the terms of the lease, and it follows  from it  that the lessee gets that right to the exclusion of  the lessor."     In B.M. Lall v. Dunlop Rubber Co.[1968]  1 SCR 23 at  17 the distinction between the two concepts was brought out:     "A  lease  ....  is the transfer of  a  right  to  enjoy premises  whereas a licence is privilege to do something  on the  premises  which  otherwise  would  be   unlawful....The transaction  is  a Iease, if it grants an interest   in  the land;it is  a licence if it gives a personal privilege  with no interest the land...."     In  Qudrat Ulah v. Municipal Board, Bareilly,  [1974]  1 SCC 202 at 204 it was stated:     "..... If an interest in immovable  property,  entitling the  transferers to enjoyment, is created, it is a lease; if permission  to use without right to exclusive possession  is alone granted, a licence...."     In  Board Revenuer v. A. M. Ansari,[1976] 3 SCR  661  at 665 it was again observed:     "....  it  is the creation of an interest  in  emmovable property  or right to possess it that distinguishes a  lease from  a  licence. A licence does not create an  interest  in the  property to which it relates while a lease does.  There is in other words transfer of a right to enjoy the  property in lease ......"     In Dipak Banerjer v. Smr. Lilabati Chakrobory, 4 JT 1987 3 454 at 456 Sabyasachi Mukharji, J. observed:                                                   PG NO 326     "But  in  order  to prove  tenancy  or  sub-tenancy  two ingredients  had to be established, firstly the tenant  must have   exclusive  right  of possession or  interest  in  the premises  or  part of the premises in question and  secondly

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that  right must in lieu of payment of some compensation  or rent.     However   in  regard  to  the  second   requirement   of ’consideration’for  the transfer of the right to  enjoy  the property,  it was in that case held that though Section  105 of  the Transfer of Property Act envisaged  even  ’services’ rendered  by  the lessee as a consideration for  the  grant, however,  under  the  Rent  Acts,  the  position  would   be different. The proposition was noticed thus :     "The  question  is,  whether  in  the  context  of   the provisions   of Rent Act, services can be consideration  for sub-tenancy.   In  other  words  whether  in  view  of   the provisions  of  the Rent Act services can be a good  or  any consideration for sub-lease is the question.     Answering, it was held:     "We are of the opinion that it cannot be"     "It  is however not possible to accept that services  in lieu or  the right of occupation would amount to receipt  of rent  under  the  Rent  ’Act  to  create  sub-tenancy.  This frustrates and defeats the purpose of the Rent Act."     12.  Again, in KhuliI Ahmed Bashir Ahmed v.  Tufelhussin Samasbhai Saranpurwala,JT 1987 4 S.C. 342 at 348  Sabyasachi Mukharji J. observed: "To  put  precisely  if an interest  in  immovable  property entitling the transferee to enjoyment was created, it was  a lease;if permission to use land without exclusive possession was alone granted a licence was the legal result. We are  of that  opinion that this was a licence and not a Iease as  we discover the intent."    13.  The  question is, whether in the present  case,  the evidence on  record justifies the inference that the  tailor and the Ice-Cream-Vend or were put in exclusive  possession. Dr. Chitaley contended that the question would require to be determined  upon a proper construction of the deeds  entered                                                   PG NO 327 into between the parties, and that alone is decisive of  the matter.  Indeed, learned counsel placed strong  reliance  on the  following observations by this Court in M. N.  Clubwala v. Fida Hussain Saheb, [1964] 6 SCR 642.     "Whether  an agreement creates between the  parties  the relationship  of  landlord  and tenant  or  merely  that  of licensor  and  licensee the decisive  consideration  is  the inten-tion  of  the    parties. This  intention  has  to  be ascertained   on  a   consideration  of  all  the   relevant provisions in the agreement. "                                       (Emphasis Supplied)    The proposition of Dr. Chitaley as to the  conclusiveness of  what  emanates from the construction of  the  documents, has,   in  this  case,  its  own  limitations.  The   import significance and conclusiveness of such documents making, or evidencing, the grants, fall to be examined in two  distinct contexts. The dispute may arise between the very parties  to the  written  instrument, where on the construction  of  the deed  one party contends that the transaction is a  licence’ and  the  other  that it is a lease’. The  intention  to  be gathered  from  the  document read as  a  whole  has,  quite obviously,  a direct bearing. But in cases where,  as  here, the  landlord  alleges  that  the  tenant  has  sub-let  the premises and where the tenant, in support of his own defence sets-up  the plea of a mere licencee and relies upon a  deed entered  into,  inter-se, between himself  and  the  alleged licencee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed. At best,  it is a piece of evidence, the weight to be  accorded to  which  will  necessarily  depend  upon  all  the   other

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circumstances  of the case. The tenant and  the  sub-tenant, who  jointly set up a plea of licence against  the  landlord may  choose  to camouflage the truth and  substance  of  the transaction   behind   a  facade  of  a   self-serving   and canveniently  drafted instrument. The transaction, might  be collusive  and  a mere mask the parties choose  to  wear  to confuse  and  confound  third parties. In such  a  case  the realities  and substance of the transaction and  not  merely the  deed,  become the basis for the  determination  of  the legal  nature of the relationship. The deed is a mere  piece of evidence. In deciding whether a grant amounts to a  lease or only a licence, regard must be had more to the  substance than  the form of the transaction. It is determined  by  the law and not by the label the parties choose to put on it. To give  exclusive possession, there need not be express  words to  that effect; it is sufficient if the nature of the  acts done  by  the grantee show that he has and was  intended  to have  the right of exclusive possession. The fact  that  the                                                   PG NO 328 agreement contains a clause that on tenancy is to be created will not, of itself, preclude the instrument from creating a lease.     In  B. M. Lall’s case ( 1968) 1 SCR 23 at 27 this  Court observed :     "The  question is not of words but of substance and  the label which the parties choose to put upon the  transaction, though  relevant,  is not decisive. The  test  of  exclusive possession  is not decisive, though it is a  very  important indication in favour of tenancy.     14. Contentions (a) and (b) could conveniently be  dealt with   together. Sri Sanghi’s first contention is  the  non- availability,  to  the  Revisional Court, of  the  power  to reappreciate  evidence and substitute a finding of  fact  of its  own  in place of the concurrent finding of  the  Court- below.     The  cognate question is whether the concurrent  finding of  exclusive  possession  of  M/s.  Kwality  Ice  Cream  is supportable  on  the evidence and if so,  whether  the  High Court could, in revision, have substituted a finding of  its own on the point. It is true, having regard to the  language of  Section  l5(5) of the Act conferring  revisional  powers which include an examination of the legality or propriety of the  order  under  revision,  the  High  Court  can,  in  an appropriate  case. reappreciate evidence and interfere  with findings  of  fact.  But the question is  whether  that  was called foe of  justified in the present case.    ’Sri  Sanghi pointed out that finding of the  trial-Judge on the question of exclusive possession of M/s. Kwality  Ice Cream could not be found fault with on the alleged ground of any  non-consideration  of material evidence.  He  submitted that the finding was supportable on the evidence. Sri Sanghi particularly referred to some admissions of the respondent’s own  witnesses  in the course of  their  evidence.   Learned counsel  drew  attention to the deposition  of  Krishan  Lal (R.W. 9) who, while admitting his identity in the photograph Ex. AW 8/4 said:     "In  Exh.  AW  8/4, I am sitting.  I  was  cleaning  the Machine. My one hand was near the mouth. Portion of Softy is separate.  It is correct to suggest that the  Proprietor  of ’Saree Sansar, opens the shop separately.                                     (Emphasis Supplied)                                                   PG NO 329     Sri  Sanghi also referred to the following statement  of Das  Raj jain (R.W. 10) a partner of the respondent’s  firm, which,  according  to  the Iearned counsel,  amounts  to  an

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admission of the exclusiveness of his possession :    "The  Ice-Cream  premises  can  be  locked  from  outside independently."     Sri  Sanghi, quite understandly, placed strong  reliance on  the  report of the Commissioner (A.W.  1)  whose  report substantiated the appellants’ case. So far as the admissions attributed  to  Das  Raj Jain (R.W. 10)  is  concerned,  Dr. Chitaley  would say that the statement of the  witness  that the   premises  could  be  looked  from   outside   indepen- dently  does  not  militate  against  or  detract  from  the internal  inter-connection  between  the  main  premises  of "Saree Sansar’? and "Kwality Ice-Cream". But the report  and evidence of the local Commissioner excluded any  possibility of any such internal inter-connection.     On  an  appreciation of the evidence the  Iearned  Rent- Controller came to hold:     "Evidence  of the petitioners clearly  establishes  that there  is  a separate cabin for selling ice cream  which  is under  the  control ice cream sellers. The licence  deed  is only  a  cloak  to  cover  the  real  relationship  of   the respondent   with  M/s  Kwality  Restaurant,   Sector   17E, Chandigarh. It is not be lievable at all the respondent  the parted  with  a  portion  of the  premises  to  M/s  Kwality Restaurant,    Sector   17E,   Chandigarh,    without    any consideration  and just for sake of supplying  ice-cream  to the  customers that too after Charging the price. It is  all against  the  natural conduct that the respondent  may  part with  a  portion  of  the  premises  just  for  this  merely facility."     "The  Photographer  Kul  Rajinder Lal  (A.W.  K)  is  an independent and truthful witness who took the Photographs at about  9  P.M.  when the business of  ice  cream  was  being conducted. The statements of that Witnesses Swatantar  Kumar (R.  W  6),  Parveen Jain (R.W.7)  Saldev  Raj  (R.W.8)  and Krishan  Lal  (R.W.9) are the statement  of  the  interested persons who had clearly told a lie with a view to depose  in favour  of  the respondent that the photographs  were  taken                                                   PG NO 330 early in the morning. If the photographs were taken  earlier in  the morning, it would have been possible  that the  shop of the respondent would be open ...."                                              (Emphasis Supplied)     "No  other presumption excepting that of subletting  can be  raised in the circumstances of the case. The  respondent Das  Raj (R.W. 10) has admitted that there are bigger  cloth merchants  in Sector 17 than his shop but none of  them  has opened such a booth of ice cream in their shops."     15.  The view of the High Court, in substance, was  that there  was conflict between the version of the  Commissioner and the state of affairs indicated in the Plans (Ext. R.  4) which  did not support the exclusive and separate nature  of the Ice-Cream Vendor’s possession and that the latter should prevail.  But a more careful examination of the  context  in which M.L. Sharma (R.W. 7) the Senior Architect who produced Ext. R.4. was examined shows that Ext. R. 4 was relied  upon in   rebuttal  of and in answer to an  altogether  different ground   i.e.,   the  ground  of   unauthorised   structural alterations  and the alleged damaged caused to the  building thereby and to show that the structural alterations had been authorised  by the first-appellant. It is quite  plain  that Respondent  itself did not seek to rely on this evidence  on the point of exclusive-possession or lack of it.     Not even a suggestion was put to A.W. 7 or A.W. 9 to the effect that the structural alterations as evidenced by  Ext. R.  4 rendered the exclusive-possession of M/s. Kwality  Ice

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Cream impossible. Nor,indeed even one out of the 26  grounds in Memorandum of appeal before the appellate Court or the 24 grounds  raised in the revision application before the  High Court,  refer to this inference to be drawn from  Ext.  R.4. More   importantly., even Das Raj Jain (R.W. 10) partner  of the  Respondent firm does not himself claim this import  and significance  for  Ext.  R. 4. No witness  stated  that  the structural alterations were strictly in accordance with  the plan, Ext. R. 4. Apparently, this was not also the aspect on which  Respondent placed reliance before  the  Courts-below. Reliance  on  the  plans  to take away  the  effect  of  the positive evidence on record was not, therefore,justified.     16. The scope of the revisional jurisdiction depends  on the   language  of  the statute  conferring  the  revisional jurisdiction. Revisional jurisdiction is only a part of  the appellate jurisdiction and cannot be equated with that of  a full-fledged  appeal. Though the revisional  power-depending                                                   PG NO 331 kupon  the  language of the provision-might  be  wider  than revisional  power  under Section 151 of the  Code  of  Civil Procedure, yet, a revisional Court is not a second or  first appeal.     When  the findings of fact recorded by the  Courts-below are  supportable on the evidence on record,  the  revisional Court   must,indeed,   be  reluctant  to  embark   upon   an independent re-assessment of the evidence and to supplant  a conclusion  of  its own, so long as the evidence  on  record admitted  of  and supported the one reached by  the  Courts- below.  With respect to the High Court, we are  afraid,  the exercise  made by it in its revisional  jurisdiction  incurs the  criticism  that the concurrent-finding of fact  of  the Courts-below  could  not  be  dealt  and  supplanted  by   a different finding arrived at on an independent re-assessment of  evidence  as  was done in this case.  We  think  in  the circumstances,  we  should agree with Sri  Sanghi  that  the concurrent  finding  as  to  exclusive  possession  of  M/s. Kwality Ice-Cream was not amenable to reversal in  revision. Contentions (a) and (b), in our opinion, are well taken  and would require to be held in appellants’favour.     17.  On  contention  (c) as to  the  limitation  on  the powers, even of the appellate Court, to dislodge finding  of facts  recorded by the trial-court on a  re-appreciation  of oral  evidence, we think, the submissions of Sri Sanghi  are not  also  without  substance.  The  proposition,  that  the appellate  Court should not too lightly interfere  with  the appreciation   of  oral evidence made by  the  trial  Court, particularly based on the credibility of the witnesses whose demeanour   the  trial  Court  has  had  the  advantage   of observing,  is  too well settled to require  reiteration.  A clear exposition of the Rule as to what extent the appellate Court  should  regard  itself as bound  by  the  conclusions reached  by  the trial Court on questions of fact is  to  be found  in the speech of Lord  Thankerton in Watt v.  Thomas, [1947] A.C. 484 at 487-488:     "I do not find it necessary to review the many decisions of    this  House,  for it seems to me  that  the  principle embodied   therein is a simple one, and may be stated  thus: (1).  Where   a question of fact has been tried by  a  judge without a jury, and there is no question of mis-direction of himself by the  judge, an appellate court which is  disposed to come to a  different conclusion on the printed  evidence, should  not do so unless it is satisfied that any  advantage enjoyed  by  the  trail judge by reason of having  seen  and heard  the witnesses, could not be sufficient to explain  or justify  the trial judge’s conclusion, (II).  The  appellate

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                                                 PG NO 332 court may take the  view that, without having seen or  heard the  witnesses,  it  is  not in a position to  come  to  any satisfactory conclusion on  the printed evidence; (III). The appellate  court,  either because the reasons given  by  the trial judge are not satisfactory, or because it unmistakably so appears from the  evidence, may be satisfied that he  has not taken proper advantage of his having seen and heard  the witnesses, and the matter will then become at large for  the appellate court."     But  in cases where there is no question of  credibility or  reliability of any witness or the question is one  of  a proper  inference  to  be  drawn  from  proved  facts,   the appellate  Court  is-and should be  generally in as  good  a position  to  evaluate the evidence as the trial  Judge  is. Lord  Reid  in  Benmax v. Austin Motor Co.  Ltd.,  [1955]  2 W.L.R. 418 at 422 observed:     "But  in  cases  where  there  is  no  question  of  the credibility   or  reliability of any witness, and  in  cases where  the  point in dispute is the proper inference  to  be drawn from proved  facts, an appeal court is generally in as good  a  position  to  evaluate the evidence  as  the  trial judge,  and  ought not to shrink from that task,  though  it ought,of course. to give weight to his opinion."     In the same case, Viscount Simonds indicated the need to keep the distinction between a finding on a specific-fact on the one hand and a finding which is an inference from proved fats on the other,clearly distinguished. The limitations  on the  power  of  the appellate  Court  to   reappreciate  the evidence  is  clearly confined to the former.  That  is  the distinction  between  what  is  ’perception’  and  what   is ’evaluation’.     Viscount Simonds observed:     "A judge sitting without a jury would fall short of  his duty   if he did not first find the facts and then draw from them the  inference of fact whether or not the defendant had been  negligent. This is a simple illustration of a  process in  which  it may often be difficult to say what  is  simple fact  and what is inference from fact, or to repeat  what  I have said, what is perception, what evaluation."                                                   PG NO 333     18.  Reference on the point could also usefully be  made to  A.L.Goodhart’s article 7-l LQR 402 at405 in  which,  the Iearned author points out:     "A  Judge  sitting  without a  jury  must  perform  dual function.  The first function consists in the  establishment of  the  particular  facts. This may  be  described  as  the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from  a conclusion."     "It  is  obvious that, in almost all cases  tried  by  a judge  with-out  a jury, an appellate court, which  has  not had an opportunity of seeing the witnesses, must accept  his conclusions  of fact because it cannot tell on what  grounds he  reached them and what impression the  various  witnesses made on him. "                                       (Emphasis Supplied)      The following is the statement of the same principle in "The Supreme Court Practice" (White Book 1988 Edn. Vol. 1).     "Great weight is due to the decision of a Judge of first instance   whenever,  in  a  conflict  of   testimony,   the demeanour  and manner of witnesses who, have been  seen  and heard  by him are material elements in the consideration  of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on question of  fact

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as on questions of law to demand the decision of the   Court of Appeal, and that Court cannot excuse itself from the task of  weighing  conflicting  evidence,  and  drawing  its  own conclusions,  though it should always bear in mind  that  it has  neither  seen nor heard the witnesses and  should  make due allowance in this respect."                                             (p.854-55)     ".... Not to have seen witnesses puts appellate   Judges in  a permanent position of disadvantage against  the  trial Judge, and unless it can be shown that he has failed to  use or  has  palpably  misused  his  advantage-for  example  has failed  to observe inconsistencies or indisputable  fact  or material probabilities (ibid. and Yuill 1945 P. 15: Watt  v. Thomas,  [19473 A.C  484)-the higher Court ought  not   take the  responsibility of reversing conclusions so arrived   at                                                   PG NO 334 merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities  of the case..."                                                        (P. 855)     ".... But while the Court of Appeal is always  reluctant to  reject a finding by a Judge of the specific  or  primary facts   deposed  to by the witnesses,  especially  when  the finding  is   based  on  the credibility  or  bearing  of  a witness,  it is willing to form an independent opinion  upon the   proper   inference   to   be   drawn   from    it...." (P. 855)     A consideration of this aspect would incomplete  without a  reference  to the observations of B.K. Mukherjea  J.,  in Sarju Pershad v. Jwaleshwari Pratap Narain Singh and Others, [1950]  SCR 781 at 783 which as a succinct statement of  the rule, can not indeed be bettered :     "The  question for our consideration is undoubtedly  one of     fact,  the  decision  of  which  depends   upon   the appreciation  of the oral evidence adduced in the  case.  In such cases, the appellate court has got to bear in mind that it  has  not  the  advantage which the trial  Judge  had  in having  the  witnesses    before him and  of  observing  the manner  in which the deposed in court. This  certainly  does not  mean that when an appeal lies on facts,  the  appellate court is not competent to reverse a finding of fact  arrived at  by the trial Judge. The rule is-and it is  nothing  more than a rule of practice-that when there is conflict of  oral evidence  of  the parties on any  matter in  issue  and  the decision hinges upon the credibility of the witnesses,  then unless there is some special feature  about the evidence  of a  particular witness which has  escaped the  trial  Judge’s notice or there is a sufficient balance of improbability  to displace  his opinion as to where the credibility lies,  the appellate court should not interfere with the finding of the trial Judge on a question of fact. "     19.  The area in which the question lies in the  present case  is the area of the perceptive functions of  the  trial Judge where the possibility of errors of inference does  not play a significant role. The question whether the  statement of  the  witnesses  in  regard  to  what  was  amenable   to perception  by  sensual experience as to what they  saw  and heard  is acceptable or not is the area in which  the  well- known  limitation  on the powers of the appellate  Court  to                                                   PG NO 335 reappreciate the evidence falls. The appellate Court, if  it seeks  to reverse those findings of fact, must  give  cogent reasons  to  demonstrate how the trial Court  fell  into  an obvious error.     With respect to the High Court, we think, that, what the

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High  Court  did was perhaps even an appellate  Court,  with full   fledged    appellate  jurisdiction  would,   in   the circumstances  of the present case, have felt  compelled  to abstain from and reluctant to do. Contention (c) would  also require to be upheld.     20. Re, Contention (d)     The  High Court was of the view that the  proceeding  of the Commissioner was vitiated by the absence of a notice  to the   respondent   preceding  the   order   appointing   the Commissioner. It is true that some High courts had taken the view  that  no order appointing a local  Commissioner  under Order  26 CPC could be passed ex-parte. (See  Latchan  Naidu and   Anr.  v.  Rama  Krishan  Ranga  Rao  Bahadur   Bobbili Samasthanam, AIR t934 Madras 548. But subsequent pronounce- ments  of  several High Courts, including  the  Madras  High Court, have inclined to the better view that there might  be circumstances which  may necessitate and justify even an ex- parte order appointing a Commissioner. But the  requirements of  Rule  9 of Order 26 are construed to apply  to  a  stage after the making of an order appointing the Commissioner. In the present case, it is no doubt true, that the order  dated 3.2.  1975 of the trial court appointing a Commissioner  did not  in  terms  direct  the parties  to  appear  before  the Commissioner. There is this infirmity in the proceedings  of the Commissioner.     But  it is possible to construe the power to  appoint  a Commissioner  to  inspect  the extant state  and  nature  of structures  as  not  confined  to Rule 9  of  Order  26  but referable  to  Rule 7 of Order 39 CPC where  the  court  can dispense  with prior notice, should it appear to  the  court that  the  very  object  of  making  of  appointment  of   a Commissioner  would be defeated and frustrated by the  issue of  prior notice. On the scope of Rule 8 of Order 39  as  it stood  even  prior to its amendment, High Courts  have  held that  an  ex-parte  order  appointing  a  Commissioner.   is permissible.  However  it is not necessary to  pronounce  on this  question as even the other evidence on  record  relied upon  by  the trial Court and the  appellate  Court  support their  finding  as to the exclusive possession of  the  Ice- cream seller.                                                   PG NO 336     21.  Dipak Banerjee’s case on which strong reliance  was placed by Dr. Chitaley does not, in our opinion, advance the case of the  Respondent any further. There, the question was whether the tenant had sub-let two rooms in the premises  to a  tailor  who  is  stated to  have  established  therein  a tailoring  business.  The  tenant  denying  the  sub-letting contended  that the tailor was allowed to occupy a  part  of the   premises  "due to pity and charity" and  that  he  was "sewing  in  the  house without any rent". It  would  appear that  the tenant also did some service for the landlord  and the members of his family. The alleged sub-tenant not having entered  the  box, the plea of sub-letting had  come  to  be accepted.  In the appeal before this Court it was held  that there  was  neither pleading nor evidence  nor  a  specific- finding  on  the  question of exclusive  possession  of  the alleged sub-tenant and that, therefore, one of the essential ingredients  of  a sub-lease was a lacking. It  was  further held that providing of services could not also be  construed as  consideration  for purposes of the, Rent Acts  and  that therefore,  the  second  ingredient  was  also  absent.  The decision  turned on the particular facts of the  case.  That case could be of no assistance to the respondents. Likewise, the  decisions  in Khalil Ahmed ’case , where also,  on  the facts of the case, it was held that the case of a  sub-lease

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had not been made good.     22.  Dr. Chitaley than urged that there was not  even  a pleading    by  the  appellant  on  the  point   of   money- consideration  for  the parting of possession  and  that  no amount  of evidence adduced on a point not pleaded could  at all be looked into. As a general proposition the  submission is  unexceptionable; but in the present-case, the point,  in our  opinion,  is not well  taken   Appellants  specifically pleaded "sub-letting" . Respondent understood that  pleading as to imply all the incidents of’ sub-letting including  the element  of ’Rent’ and specifically traversed that  plea  by denying  the existence of considerations. Parties   went  to trial  with full knowledge of the ambit of the case of  each other. In the circumstances the pleadings would required  to be construed liberally.     In  Rum Sarup Gupta v. Bishun Narain Inter College.  AIR 1987  SC 1242 this Court said this of the need  to  construe pleadings liberally.     Sometimes,  pleadings are expressed in words  which  may not  expressly  make out a case in  accordance  with  strict interpretation of law, in such a case it is the duty of  the court  to  ascertain   the substance  of  the  pleadings  to determine  the question. It is not desirable to place  undue                                                   PG NO 337 emphasis  on  form, instead the substance of  the  pleadings should  be considered. Whenever the question about  lack  of pleading  is raised the enquiry should not be so much  about the  form  of  pleadings, instead the Court  must  find  out whether  in  substance  the parties knew the  case  and  the issues upon which they went to trial. Once it is found  that in   spite of deficiency in the pleadings parties  knew  the case  and  find the proceeded or trial on those  issues   by producing          evidence, in that event it would  not  be open  to  a  parry to  raise the  question   of  absence  of pleadings in appeal."                                          (Emphasis Supplied)     After  all, the ,,parties do not have the  foresight  of prophets and their lawyers the draftmanship of a  Chalmers." There  is no substance  in this contention of  Dr.  Chitaley either.     22.  The High Court did not deal specifically  with  the question  whether,  in  the circumstances of  the  case,  an inference  that the parting of the exclusive possession  was prompted  by monetary consideration could be drawn  or  not. The  High Court, did not examine this aspect of the  matter, as according to it, one of the essential ingredients,  viz., of  exclusive  possession  had  not  been  established.   lf exclusive  possession  established, and the version  of  the respondent  as  to the particular and the incidents  of  the transaction  is found unacceptable in the  particular  facts and  circumstances of the case, it may not be  impermissible for  the  Court to draw an inference that  the   transaction was entered into with monetary consideration in in mind.  It is  open to the Respondent to rebut this. Such transactions Of  sub-letting  in th guise of licences are in  their  very nature , clandestine arrangements between the tenant and the sub-tenant and there and there can not  direct evidence got. It is not. unoften, a matter for  legitimate inference.  The making  good  a cast of sub-letting is, of  course,  on  the appellants.  The  burden of  burden establishing  facts  and contentions  which support  the party who takes the risk  of non-persuasion.If  at the conclusion of the trial,  a  party has  failed to establish these to the appropriate  standard. he will lose. Though the burden of proof as a matter of  law remains  constant throughout a trial, the evidential  burden

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which rests initially upon a party bearing the legal  burden shifts  according as the weight of the evidence  adduced  by the  party  during the trial. In the  circumstances  of  the case,  we think, that appellants having been forced  by  the Court’s-below  to have established  possession of  the  Ice- Cream   Vendor  of a part of the  demised-premises  and  the explanation  of  the transaction offered by  the  respondent                                                   PG NO 338 having  been found by the Courts-below to be  unsatisfactory and   unacceptable, it was not impermissible for the  Courts to  draw an inference, having regard to the ordinary  course of  human  conduct,  that the  transaction  must  have  been entered  into  for  monetary  considerations.  There  is  no explanation forth-coming from the respondent appropriate  to the situation as found.   23. In the result, for the foregoing reasons, this  Appeal is  allowed, the order of the High Court under Appeal is set aside and the  order of eviction passed by the  Courts-below restored.  Having  regard  to all the circumstances  of  the case,  we grant time to the respondent to  vacate and  yield up  the vacant possession till 3 lst December,1988.  In  the circumstances  of  the case, the parties are  left  to  bear their own costs both. here and below.   H.S.K.                         Appeal allowed.