Judgment : Tenant in R.C.O.P. No. 126 of 1986, on the file of the Rent Controller, Pondicherry, is the revision petitioner. 2. Eviction was ordered on the ground that the petitioner herein has sub-let the building to one Arputham for the purpose of carrying on his business. The concurrent finding of the authorities below is challenged in this revision. 3. The finding of the authorities below being concurrent, this Court wil1 be reluctant to interfere unless the revision petitioner is able to show that there is illegality, irregularity or impropriety in the decisions arrived at by the authorities below. Let us see how far learned counsel for the petitioner herein has succeeded in his attempt. 4. The rental arrangement is not disputed. In paragraph 3 of the eviction petition, it is stated thus: “...The respondent has undertaken that he will not sub let the premises to any third parties; but the respondent contravening the said agreement and without necessary permission from this petitioner had sub-let the premises to one Arputham. Hence, the respondent is liable for eviction of the demised premises on the ground of sub-letting the premises, contravening the agreement which has been entered between the parties to this petition.” The same is answered in paragraphs 4 and 5 of the counter by stating thus: “It is false to state in the petition that the respondent has sub-leased the premises to one Arputham. The respondent is a lady and she has engaged the said Arputham as a daily cooly to work in her shop. The respondent’s father-in-law was running the shop for more than 6 years from the year 1976. Subsequently after the death of the respondent’s father-in-law in the year 1982, the respondent runs the shop. The petitioner each and every year received the previous lease agreement and executed a fresh one. The respondent states that she has not sub-leased the property to anybody and the petition is not bona fide and genuine.” .5. For the purpose of proving the sub-lease, on the side of the landlord, P. W. 1 (landlord) was examined. He has stated that the rent was fixed at Rs.75 as per agreement and that there should be no sub-lease, but the tenant has sub-leased the building to one Arputham and, therefore, the petitioner (landlord) sent a notice on 28. 1985 (marked as Ex.P-1). The tenant did not send any reply. He has stated that the rent was fixed at Rs.75 as per agreement and that there should be no sub-lease, but the tenant has sub-leased the building to one Arputham and, therefore, the petitioner (landlord) sent a notice on 28. 1985 (marked as Ex.P-1). The tenant did not send any reply. Arputham is not a ‘cooly’ or an employee of the tenant, but he is a sub-lessee under the tenant. In cross-examination, some questions were put to the witness, for explaining as to why a reply could not be sent. It is the case of the tenant, petitioner herein, that after receipt of Ex.P-1 notice, she along with her husband met the landlord, and it was agreed between them that the rent be enhanced and thus the matter was settled. R.W.1 is the petitioner herein. R.W.2 is Arputham, the alleged sublessee. 6. In her evidence, R.W.I has stated that her father-in-law was conducting a barber shop in the building in question and he died in the year 1972. She has also said that she has not sub-let the building. She has further said that after receipt of the notice, she along with her husband went to the meet the landlord and they agreed for a settlement by enhancing the rent, i.e., by offering to pay a sum of Rs.50 more towards rent. In her cross-examination, she has stated that documents are available with her to show that her father-in-law was running a barber shop in the building in question. She also said that Arputham is not her relation and that he is a relative of her husband. She also said that she used to pay Rs.20 to Arputham that licence stands in her name, and that she has also produced the same before court. It is also her evidence that Arputham used to acknowledge receipt of the daily wages in a sheet, and that she used to pay him after meeting all the expenses. 7. While R.W.2 was examined, he has stated that he is working in that building as a barber receiving daily wages of Rs.20. He has also said that he is not related either to the petitioner or her husband. 7. While R.W.2 was examined, he has stated that he is working in that building as a barber receiving daily wages of Rs.20. He has also said that he is not related either to the petitioner or her husband. He said that the daily income would be Rs.35 from the shop and he used to maintain accounts and the accounts will be given either to the petitioner herein or her husband and they will satisfy themselves about the correctness of the same. He said that he does not know in whose name the building stands. He denied the suggestion that he is a sub-lessee. 8. It is on the above evidence, the authorities below came to the conclusion that there is sub-lease in favour of Arputham. 9. It is not disputed that sub-lease is prohibited as per the rental arrangement between the parties. The sublease is a contract entered into between the lessee and the sublessee and when it is prohibited, naturally the same will be a secret arrangement between them. The court will have to consider whether the person who is making use of the building is a sub-lessee or not. For that purpose, we have to consider whether the alleged sub-lessee has exclusive possession of the building and whether he is in occupation for any monetary consideration. As stated earlier, since the relationship between the tenant and sub-lessee can only be a secret affair, the landlord can only say that a third person is in occupation of the building, contravening the rental arrangement. If exclusive possession is proved or can be inferred from circumstances, law says that the occupation by the stranger can be on monetary consideration. 10. For the said purpose, we have to take into consideration the quality of occupation, nature and degree of occupation and also find out whether from the user of the building the third person can have control over the building. 11. It is admitted that the petitioner herein is a lady and the building in question is used for running a barber shop. Naturally, the petitioner herein cannot by herself make use of the building for that purpose. It is in evidence that her husband is a Government employee and, therefore, he also cannot make use of the building, So, the business has to be necessarily entrusted to a third person. Naturally, the petitioner herein cannot by herself make use of the building for that purpose. It is in evidence that her husband is a Government employee and, therefore, he also cannot make use of the building, So, the business has to be necessarily entrusted to a third person. Whether such entrustment amounts to employment alone or it amounts to sub-lease is to be seen. .12. As stated already, the building is used a barber shop. The petitioner herein being a lady, cannot make use of the same for the said purpose, and only some other male member can use it. Her husband, being a Government servant, also cannot make use of it for running the business. That is how Arputham, the alleged sub-lessee, is making us of the building. He must have control over the building for effectively conducting the business. Whether it is a profession or a business, the nature of the occupation or user by Arputham cannot be along with the petitioner herein. In this connection, we may also note that when the petitioner herein was examined as R.W.I, she does not say that she is still having control over the building and that possession is with her. From a reading of the evidence of R.W.2, it is clear that the daily income is Rs.35 and that he is paid Rs.20. He also says that he maintains accounts and those ac- counts are being checked either by the petitioner herein or her husband. As per his evidence, he is the person who is liable to account. A reading of the entire deposition shows that only he is making use of the building for the purpose of exercising his skill or profession or business, and, out of the total income, he is paying Rs.15 to the petitioner. 13. Once it is found that Arputham is in occupation of the building, and for the purpose of his business, he has to occupy the building, naturally an inference has to be drawn that the occupation amounts to possession. For free exercise of the user of the building, he must have a right to exclude others and also a right to include therein. In fact, the building has been given to him to enjoy the same for the purpose of his user. For free exercise of the user of the building, he must have a right to exclude others and also a right to include therein. In fact, the building has been given to him to enjoy the same for the purpose of his user. For that, he must have control over the place to the exclusion of everyone so that he may carry out what is expected of him by the law. In this case, the petitioner cannot interfere with the user of the building by Arputham when he is making use of the same for the purpose of running barber shop. Such a power of control needs possession. An occupier is a person who is in occupation and occupation always implies more than a mere licence. The ordinary meaning of the word ‘occupation of land’ is exercise of physical control over land, ‘occupation of building’ means possession thereof and, at any rate, cannot be divorced from possession. It is that inference which has to be drawn taking into consideration the circumstances of the case. 14. Learned counsel for the petitioner submitted that even if Arputham is in possession, that does not follow that the same is for monetary consideration. According to the learned counsel, unless the occupation is for monetary consideration, sub-lease cannot be inferred. I agree with the said submission. But, to arrive at the monetary consideration, law also can presume certain circumstances. 15. From a reading of the evidence of R.W.I and R.W.2, it is clear that R.W.2 is not related to the petitioner herein or her husband. He is an utter stranger so far as they are concerned. A stranger is allowed to make use of the building which is intended to be used by the petitioner herein. What is the inference that has to be drawn in such circumstances. 16. In Smt.RajbirKaur and another v. M/s.S. Chokesiri and Company, (1989) I S.C.C. 19, their Lordships held thus: "If exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, as in the present case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting and establishing facts and contentions which support the party’s case is on the party who takes the risk of non-persuasion viz., the landlord. 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 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." [Italics supplied] 17. The decision was followed by the Supreme Court again in Messrs. Nihal Chand Rameswar and another v. Vinod Rastogi and others, J.T. (1994)4 S.C. 113: (1994)4 S.C.C. 325 . 18. Learned counsel for the petitioner herein relied on the decision reported in Jagdish Prasadv: Angoori Devi, A.I.R. 1984S.C. 1447: (1984)2 S.C.C. 590 and laid stress on the following passage: "Merely from the presence of a person other than the tenant in the shop sub-letting cannot be presumed. As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of, a person other than the tenant in the shop cannot be assumed.........." 19. The facts extracted in this case will show that it is a business conducted by Arputham and the tenant cannot have control over the same. It is not the presence of a person in the shop. It is the occupation of the building by R.W.2 that makes the difference. Learned counsel also relied on the decision reported in M/s. Madras Bangalore Transport Company (West) v. Inder Singh, A.I.R. 1986S.C. 1564: (1986)3 S.C.C. 62 : (1986)2 A.P.L.J. (S.C.) 16. The facts therein will show that the tenancy which was in the name of a firm was subsequently changed in the name of a company, and, their Lordships, on facts, held that for all practical purposes, there was substantial identity between the persons and that there was no sub-lease. 20. The facts therein will show that the tenancy which was in the name of a firm was subsequently changed in the name of a company, and, their Lordships, on facts, held that for all practical purposes, there was substantial identity between the persons and that there was no sub-lease. 20. Learned counsel also relied on the decision reported in Shalimar Tar Products Limited v. H.C. Sharma and others, A.I.R. 1987 S.C. 2055: J.T. (1987)4 S. C. 440. In the said decision also, paragraph 17 was stressed before me wherein it is stated thus: "There is no dispute in the legal proposition that there must be parting of the legal possession. Parting of the legal possession means possession with the right to include and also right to exclude others. That is, in our opinion, is the matter of fact....." [Italics supplied] I have already said while discussing the evidence in this case that R.W.2 was having exclusive control over the building and considering the nature of business he does, he has to exercise the discretion of right to include and also the right to exclude others. 21. As stated already, the relationship between R.W. 1 and R.W.2 is within their special knowledge and the burden is on them to substantiate the same. Even though R.W.2 says that he maintains accounts and is also submitting the same neither to the petitioner herein or her husband, those accounts are not forthcoming. The best evidence that could be produced by R.W.I has been withheld from court. The attendant circumstances are against her case. While notice was issued by the respondent (landlord), alleging sublease, the same was not replied. That is also an added circumstance against the petitioner herein. 22. The decisions of the authorities below are based mainly on appreciation of evidence, and on going through the same, I find that the learned counsel for the petitioner herein has not succeeded in asking this Court to interfere with those concurrent findings. I find that there is no illegality, irregularity or impropriety in the concurrent finding rendered by the authorities below. 23. In the result, the civil revision petition is dismissed with costs.