JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 5.9.1992 passed by respondent No. 2 allowing the revision and decreeing the suit filed by the plaintiff-respondent.
2. The facts, in brief, are that the plaintiff-respondent filed suit for recovery of arrears of rent, ejectment and damages on the allegation that defendant No. 1 Ram Adhar Tewari was a tenant and he had sub-let the disputed accommodation to Rajendra Nath Tiwari and Jogendra Nath Tewari, defendant Nos. 2 and 3. The defendants also unauthorisedly constructed Chabutra and raised the wall. Defendant No. 1 filed written statement. He denied that he had sub-let the accommodation in question and there was any relationship of landlord and tenant. The Judge, Small Cause Court dismissed the suit on 7.9.1990 on the finding that the plaintiff failed to prove that there was any relationship of landlord and tenant. The defendant Nos. 2 and 3 were nephews of defendant No. 1 and as they were living with him as relations, they were not occupying the disputed accommodation as sub-tenants. The plaintiff filed revision against this order. The revision has been allowed by respondent No. 2 on 5.5.1992 and the suit has been decreed on the finding that there is relation of landlord and tenant between the parties and further defendant No. 1 has sub-let it to defendant Nos. 2 and 3.
3. The question is whether the nephew can be held to be a member of family as defined under Section 3 (g) of U. P. Act No. XIII of 1972. The definition does not cover nephew as a member of the family of the landlord/tenant. A nephew has no independent right to occupy an accommodation let out to his uncle. If the uncle has passed on possession to him, the tenant shall be deemed to have sub-let in view of provision of Section 25 read with Section 12(1)(b) of the Act.
4. The revisional court has, however, not recorded any finding as to whether the tenant has passed on the possession to his nephews. The defendant Nos. 2 and 3 are alleged to be nephews of the tenant. The plaintiff-respondent alleged that in a portion of the disputed accommodation, there was a shop. Defendant No. 1 was not carrying on business and he had permitted defendant Nos. 2 and 3 to run the business and that amounts to subletting. Defendant No. 1 denied this fact. The revisional court has recorded following findings :
"Admittedly, defendant Nos. 2 and 3 are nephews of defendant No. 1 and they were living with him as family members. I may mention here that nephews are not covered within the family of defendant No. 1 as defined in Section 3 (g) of U. P. Act No. XIII of 1972."
5. The revisional court did not record any finding that the tenant had passed on possession to his nephews. In Ram Prakash v. Shambhu Dayal Agarwal, AIR I960 All 394, a question arose whether a relation starting to live with a tenant would amount to sub-letting of the accommodation and it was found that as he was living merely as relation and there was no sub-letting.
6. The Supreme Court in Jagdish Prasad v. Smt. Angoori Devi, 1984 (1) ARC 678, held that mere presence of a person other than the tenant at the premises is itself not sufficient for holding that subtenancy has been created. There may be several situations in which a person other than tenant may be found sitting in the shop. If a tenant has permitted to live his relation as licensee jointly with him, in that situation, unless there are any other circumstance to show that it amounts to sub-letting, such living with tenant may not amount to sub-letting. The revisional court has not considered the evidence and examined this aspect.
7. The second question is as to whether the revisional court was justified in recording the finding on the question of relationship of landlord and tenant between the parties. The Court exercising the power of revision under Section 25 of the Provincial Small Cause Court Act has no jurisdiction to re-assess the evidence and record its own finding. In Laxmi Kishore and others v. Har Prasad Shukla, 1979 ACJ 473, a Division Bench of this Court observed "if the Court finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case require ; but it has no jurisdiction to re-assess or reappraise the evidence in order to determine an issue of fact for itself. If It cannot proceed without finding on a particular issue of fact. It should send the case back after laying down proper legal guidelines. It cannot enter to evidence, assess it and determine it".
8. As respondent No. 1 has decided the matter, the matter is sent back to the trial court to decide the matter afresh. It will examine the matter on the question of relationship of landlord and tenant taking into consideration the points considered and evidence considered by the revisional court for determining the Issue relating to relationship of landlord and tenant.
9. In view of the above, the writ petition is allowed. The impugned order is quashed and the Judge Small Causes Court shall decide the suit afresh keeping in view the observation made above within a period of three months from the date of production of a certified copy of this order. The case shall not be normally adjourned and if it is very necessary to adjourn it, then not for more than three days.
10. The parties shall bear their own costs.