JUDGMENT : 1. This appeal has been filed by the defendant against the judgment of the learned District Judge, Pali dated 15.9.1983 by which he has dismissed the appeal and confirmed the judgment of the learned Civil Judge, Pali dated 17.9.1981, decreeing the suit for the recovery of arrears of rent and mesne profits and ejectment on the grounds of reasonable and bonafide necessity and sub-letting. The facts of the case giving rise to this appeal may be summarised thus. 2. On October 4, 1973, the plaintiff-respondent filed a suit for rent and ejectment with the allegations in short, as follows : On 1.4.1969 she let out front portion of her building situated in the Bikaneria Bas, Pali consisting of six rooms etc. (hereinafter to be referred to as the suit premises) to the defendant on monthly rent of Rs. 50/-. He has not paid rent since January 1, 1972. From time to time, he sub-let northern rooms of the suit premises to Mohanlal Brahmin. Om Prakash Brahmin and one Sardarji against the terms of the tenancy. The suit premises is reasonably and bonafide required by her as her family has considerably expanded i.e., her eldest son Ganga Bishan has three children, he is appearing in C.A. Final examination, marriage of the second son is going to be held on 2.11.1973 and separate accommodation is needed for studies by the children. Despite several requests and service of notice, the defendant has not vacated the suit premises. The defendant admits in his written statement that he is in occupation and possession of the suit premises on the monthly rent of Rs. 50/- and he duly received her notice of demand and ejectment. The remaining allegations of the plaint have been defined. He has further averred that he is in occupation and possession of the suit premises even prior to its purchase by the plaintiff, it was never agreed in between the parties that he would not sub-let any portion of the suit premises and the rent has been paid. On the application of the defendant, rent was determined under Section 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be called the Act) and was duly paid by the defendant. On the application of the defendant, rent was determined under Section 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be called the Act) and was duly paid by the defendant. After framing necessary issues and recording the evidence of the parties, the learned trial Court held that it was agreed upon in between the parties that the defendant would not sub-let any part of the suit premises, the defendant had sub-let two rooms of the suit premises from time to time to Mohanlal, Om Prakash, Kantilal and one Sardarji, the suit premises is reasonably and bonafide required by the plaintiff for her family and the plaintiff would suffer greater hardship if the decree for ejectment is not passed and accordingly decreed the suit for the ejectment. The defendant preferred an appeal and it was dismissed by the learned District Judge as said above. 3. On October 20, 1983, the second appeal was admitted with following substantial questions of law:- "1. Whether looking to the size of the plaintiff's family she had bonafide and reasonable necessity for the premises which are in defendant's possession ? 2. In case the plaintiff needed more apartments whether a decree for partial eviction would have satisfied her need ? 3. Whether having regard to the facts and circumstances of the case, including the question of accommodation available with the landlord, greater hardship would be caused by passing a decree for eviction than by refusing to pass it ? 4. Whether the plaintiff's conduct, after the knowledge of sub-letting of part of the premises to Mohanlal, amounted to acquiescence or consent ?"Question Nos. 1, 2 and 3 4. It is well proved from the defendant's application, plaintiff's reply and defendant's rejoinder that following accommodation have been acquired by the plaintiff and other members of her family during the pendency of the second appeal:- (i) One tin shed which was in possession and occupation of the plaintiff's tenant Kalyan Mal Maheshwari. It is situated in the same building in which the suit premises is situated. (ii) The plaintiff's daughter-in-law Mrs. Nirmala Maheshwari wife of Ganga Bishan Chartered Accountant has acquired a house in Kamla Nehru Nagar, Pali consisting of three rooms besides kitchen, lavatory and bath. 5. It is situated in the same building in which the suit premises is situated. (ii) The plaintiff's daughter-in-law Mrs. Nirmala Maheshwari wife of Ganga Bishan Chartered Accountant has acquired a house in Kamla Nehru Nagar, Pali consisting of three rooms besides kitchen, lavatory and bath. 5. It is further proved from the said application, reply and rejoinder that the plaintiff's family now consists of the following members:- (i) Plaintiff, (ii) Plaintiff' husband, (iii) Plaintiff's eldest son Ganga Bishan, C.A., his wife Nirmala and three sons aged 20, 18 and 16 years, and (iv) plaintiff's second son Dev Kishan, his wife and three children aged 14, 12 and 5 years. 6. It is also well proved from them that the plaintiff's daughters Anand Kanwar, Premrata and Brijlata have been married. Anand Kanwar has three children, aged 22, 20, and 18 years, Premlata has three children aged 15, 13 and 8 years and Brijlata has two children aged 8 and 6 years. Premlata and Brijlata are married at Pali and Anand Kanwar is married at Jodhpur. They frequently come with their children to meet the plaintiff and other members of her family. Ganga Bishan, C.A. also requires accommodation for his office. It is not in dispute that the defendant has now in his family his wife and two daughters. The eldest daughter has been married. He has now retired from Umaid Mills, Pali. 7. The defendant has been permitted to amend his written statement to incorporate the averments regarding the acquisition of the said house from the Housing Board by Nirmala Maheshwari and vacation in tin shed by Kalyan Mal Maheshwari. He also sought amendment to incorporate the averments to the effect that the plaintiff's son Ganga Bishan has acquired a house by purchase or otherwise in Veer Durgadas Nagar, Pali and has started living along with his family for last four months. This amendment was not allowed for want of particulars vide order-sheet dated 12.2.1991. 8. During this period of 18 years (1973 to 1991), the plaintiff's family has considerably expanded. Her one son has become Chartered Accountant. There are six college and school going children. Three married daughters visit her with their children. She has one hall and four rooms at her disposal. 8. During this period of 18 years (1973 to 1991), the plaintiff's family has considerably expanded. Her one son has become Chartered Accountant. There are six college and school going children. Three married daughters visit her with their children. She has one hall and four rooms at her disposal. As such it cannot be said that the concurrent findings of the learned lower Courts on the issues of reasonable and bonafide necessity and comparative hardship are erroneous. Partial eviction of the defendant would not serve the purpose of the plaintiff. Reasonable need of all the members of the family would not be met even if 3-4 rooms out of the suit premises are given to the plaintiff even after taking into consideration the tin shed vacated by Kalyan Mal Maheshwari. 9. Admittedly, the plaintiff's daughter-in-law Nirmala Maheshwari has acquired a house situated in Kamla Nehru Nagar, Pali from Housing Board. Plaintiff's case is that it is neither reasonable nor suitable for her family as it is situated at a distance of 6 km. from the suit premises, graveyard also exists in front of it, all the members of the family cannot be accommodated in it and the plaintiff's sons cannot also go there as they have to serve their aged parents. Section 14(2) of the Act speaks of availability of reasonable accommodation and not of any type of accommodation. In hi rejoinder, the defendant has not denied that the said house is situated at a distance of 6 km. from the suit premises and a graveyard exists in front of it. It has been observed in S.K. Das v. Ajit Prasad, AIR 1987 Supreme Court 2131 at page 2135 para 17 follows:- "Learned Judge of the High Court only drew inference from the fact that the appellant wanted to start a laboratory and the fact that he signed the agreement for acquiring the flat which was meant for residence and in drawing inferences from these two facts, the learned Judge omitted to consider the positive evidence and a positive statement not challenged that this flat was not suitable for the purpose of the appellant-landlord. The judgment of the High Court cannot be maintained. The appeal is therefore allowed. The judgment of the High Court cannot be maintained. The appeal is therefore allowed. The judgment of the High Court is set aside and the decree of eviction passed by the two Courts below is maintained." Thus all the three questions are answered against the defendant and in favour of the plaintiff.Question No. 4 10. Both the learned lower Courts have concurrently held that the defendant had sub-let two rooms out of the suit premises to other persons without permission of the plaintiff. The learned counsel for the defendant-appellant contended that this finding has been given by both the learned lower Courts without considering that exclusive right to enjoy rooms for some consideration was given or not and whether legal possession was parted with a right to include and exclude others. He relied upon AIR 1987 SC 2655; AIR 1988 SC 145 ; 1991 RCJ 250 (M.P.) and Hamir Ahmed v. Yousuf, 1985 (1) WLN 550 . For their gist, para 5 of the judgment given in M/s. Delhi Stationers and Printers v. Rajendra Kumar, AIR 1990 SC 1208 may be quoted. It runs as under:- "Under Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act (hereinafter referred to as 'the Act') the tenant is liable to be evicted, if he has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. See Goplal Saran v. Satya Narayana, AIR 1989 SC 1141 (supra)." 11. On September 23, 1962, the defendant executed rent not Ex. 7 in favour of his previous landlord Bhajanlal. One of the terms of it is that he would not sublet the demised house. The plaintiff averred in plaint that the defendant agreed not to sub-let any portion of the demised premises. In para No. 1 of the written-statement, the defendant averred that the averments of plaint that he agreed not to sub-let is not correct. One of the terms of it is that he would not sublet the demised house. The plaintiff averred in plaint that the defendant agreed not to sub-let any portion of the demised premises. In para No. 1 of the written-statement, the defendant averred that the averments of plaint that he agreed not to sub-let is not correct. Before the institution of the suit, the plaintiff served notice of demand and ejectment upon the defendant whose copy is Ex. 2 and acknowledgement due Ex. 3. It is clearly stated in it that two rooms out of the demised premises were sub-let from time to time to Mohanlal Brahmin. Om Prakash and Sardarji. In para No. 3 of the plaint it has been averred that against the terms of the rent note the defendant had sub-let from time to time northern two rooms of the suit premises to Mohan Lal, Om Prakash one Sardarji and Om Prakash vacated the same after service of the notice upon him. These averments have been denied in the written-statement. 12. The plaintiff's husband and Mukhtiyar Aam Goru Ram PW1 has deposed that the defendant sub-let two rooms out of the suit premises to Mohanlal and on his protest the defendant got the rooms vacated after 7-8 months, after three months thereof, he sub-let the room adjoining (sic) Sardarji, he quarried with Sardarji and he vacated it after remaining in it for two months, thereafter he sub-let the room which exists in front of the kitchen to Omji Birahmin of Sojat, he again protested, he served notice upon the defendant and also sent a copy through registered/AD post to Omji. The copy of the notice sent to the defendant is Ex. 2 and the acknowledgement due is Ex. 3. Om Prakash refused to take the notice Ex. 4. These notices strongly corroborate Goru Ram PW1. Ram Niwas Agarwal PW2 and Mahesh Das PW5, the then clerks of the Collectorate, Pali have deposed that Om Prakash was also working with them in Collectorate, Pali, they saw him living in the suit premises and he used to pay Rent of Rs. 25/- per month to defendant Ratanlal. Sohanlal Rathi PW3 has deposed that he went to the suit premises to meet Om Prakash during the period when the State Government employees were on strike. 25/- per month to defendant Ratanlal. Sohanlal Rathi PW3 has deposed that he went to the suit premises to meet Om Prakash during the period when the State Government employees were on strike. Ganga Bishan PW4 has deposed that defendant had sub-let two rooms to Mohanlal, Sardarji and Kantilal and lastly to Om Prakash. Mohanlal remained there for about 11/4 years, he vacated the rooms on the protest of his father, Sardarji lived there for 6-8 months, Kantilal for 8-10 months and Om Prakash for 10-12 months. Kantilal PW has deposed that he paid rent to Ratanlal. The neighbour Laxmi Narayan PW9 deposed that he saw Mohanlal, Kantilal, Om Prakash and one Sardarji living in the rooms of the suit premises, Sampatlal PW8 has deposed that he saw Omji @ Onkarlal living in the rooms of the suit premises and he heard that the defendant's wife is her Dharm-bahin Mohanlal PW9 has stated on oath that he lived in two rooms of the suit premises initially on monthly rent of Rs. 25/-, after 2-3 months the rent was enhanced to Rs. 40/-, he remained in it for about 1-14 months during the years 1970-71, and he paid rent to the defendant Ratanlal. He has also deposed that plaintiff's husband Goru Ram PW1 protested his living there and he told him that he was living as a sub-tenant of the defendant Ratanlal. 13. The defendant has not said a single word in his examination-in-chief about the sub-letting. He admits in his cross-examination that he had no enmity with Om Prakash, Kantilal and Mohanlal. Om Prakash DW2 and Onkarlal DW4 deposed that they have never lived in the suit premises. Om Prakash admits that he works in the Umaid Mills, Pali where defendant Ratanlal also works. He admits in his cross-examination that Ratanlal has taught him. 14. In view of this evidence, it cannot be said that the learned trial Court has erred in holding that the defendant Ratanlal sub-let two rooms out of the suit premises to Mohanlal and also to Om Prakash, Kantilal and one Sardarji. From this evidence plaintiff's acquiescence or consent cannot be spelt out. On the contrary, it is well proved from the positive evidence that her husband protested every time when a part of the suit premises was sub-let by the defendant. 15. Initial burden to prove sub-letting was upon the plaintiff. From this evidence plaintiff's acquiescence or consent cannot be spelt out. On the contrary, it is well proved from the positive evidence that her husband protested every time when a part of the suit premises was sub-let by the defendant. 15. Initial burden to prove sub-letting was upon the plaintiff. Reference of (sic) Abu v. Chakkalya and Hamir Ahmed v. Yousuf, 1985 (1) WLN 550 may be made here. She has successfully discharged it. The defendant has utterly failed to prove in what other capacity these persons lived in the suit premises. There is no suggestion in the cross-examination of Mohanlal PW9 that he was not in exclusive possession of two rooms sub-let to him by the defendant. He has categorically stated on oath that he was living with his family, and initially he paid rent Rs. 25/- for 2-3 months and subsequently Rs. 40/- per month to the defendant. Nothing damaging could be elicited out in his cross-examination. The learned lower Courts have rightly believed his testimony. 16. It is well settled law that sub-letting need not subsist till the institution of the suit or decree. Reference to Gappulal v. Shriji Dwarkadeeshji, AIR 1969 SC 1291 , may be made here. 17. The facts of Sacchindra Nath Shah v. Santosh Kumar Bhattacharya, AIR 1987 SC 409 are quite different and distinguishable. In the agreement executed in between the tenant and the paying guest, it was clearly provided that the room will remain in possession of the tenant and the paying guest will not acquire any interest in the room. It is not the case here. It is not the case of the defendant that the aforesaid persons were his paying guests. As such this ruling does not help the defendant. The question No. 4 is decided in favour of plaintiff. Thus the appeal deserves to be dismissed with costs. 18. Consequently, the second appeal is dismissed with costs. It is not the case here. It is not the case of the defendant that the aforesaid persons were his paying guests. As such this ruling does not help the defendant. The question No. 4 is decided in favour of plaintiff. Thus the appeal deserves to be dismissed with costs. 18. Consequently, the second appeal is dismissed with costs. The defendant-appellant is given time upto December 31, 1991 to deliver the actual and physical possession of the suit premises to the plaintiff or her authorised agent, on the conditions that he deposits in the trial Court or in her bank account, if necessary particulars are furnished by the plaintiff to him through registered letter before one month, the entire amount of arrears of rent and mesne profits upto 31.12.1991 and costs of all the three Courts, adjusting the amounts already paid to the plaintiff under receipt or deposited in the Court and furnishes an undertaking in the trial Court that he will deliver the actual and physical possession of the suit premises to the plaintiff by or on 31.12.1991 and during the period he will not part with the possession of any portion of the suit premises, both within one month from today.