Judgment A.M. KHANWILKAR, J.:---This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the 3rd Additional District Judge, Thane dated September 14, 1989 in Civil Appeal No. 186 of 1987. 2. The respondent is the landlady in respect of the house property bearing Ali No. 36, House No. 30(1) situated at Kalyan. The petitioner No. 1 was inducted as a tenant in the suit premises on monthly rent of Rs. 92/- including taxes. The respondent issued notice dated January 5, 1982 demanding arrears of rent since 1-9-1981. The respondent thereafter instituted a suit before the Court of the Joint Civil Judge, J.D., Kalyan being Regular Civil Suit No. 137 of 1982 against the petitioners on the grounds of default section 12. Petitioner No. 1 original defendant No. 1 (tenant) having acquired alternative and suitable accommodation for her residence (section 13(1)(1)), unlawful sub-letting of the suit premises in favour of petitioner No. 2 (section 13(1)(e)), non user of the suit premises for a period of six months preceding the date of institution of the suit (section 13(1)(k)), and for bona fide and personal requirement (section 13(1)(g)). The trial Court decreed the suit in favour of the respondent only on the grounds of unlawful sub-letting (section 13(1)(e)), and non user (section 13(1)(k)). The trial Court negatived the rest of the grounds and answered the same against the respondent. Against the said judgment the petitioners carried the matter in appeal before the IIIrd Additional District Judge, Thane being Civil Appeal No. 196 of 1987. The Appellate Court by the impugned order dated September 14, 1989 has confirmed the decree passed by the trial Court only on the abovesaid two grounds. In the circumstances, the petitioners have filed this writ petition challenging the decree for possession passed by the two courts below on the ground of non user and unlawful sub-letting. 3. In so far as the aforesaid two grounds are concerned, the respondent asserts that the demised premises were let out to the petitioner No. 1, however, the petitioner No. 1 after having acquired alternative suitable residence at Borivali shifted with her belongings to the newly acquired place and, while doing so, unlawfully inducted the petitioner No. 2 in the suit premises without the written consent or permission of the respondent landlady. On the other hand, the petitioners denied that she had moved out of the suit premises as alleged. The petitioners further assert that the petitioner No. 2 was none other than her husband's brother; and, as such he was the family member staying along with the tenant's family. On the basis of this stand, the ground of unlawful sub-letting was categorically denied by the petitioners. In this context it would be appropriate to refer to the relevant pleadings of the parties. In para 3 of the plaint the respondent asserts that the petitioner No. 1 vacated the demised premises sometime in April 1981 along with her belongings and shifted in the newly acquired premises at Borivali as described in the cause title of the plaint. It is also asserted that the accommodation secured by the petitioner No. 1 tenant at Borivali is sufficient and suitable for her residence and that the demised premises are no longer required for her accommodation. It is further asserted that the petitioner No. 1 has illegally and, without the consent of the respondent, inducted the petitioner No. 2 and transferred the demised premises in his favour and was profiteering by taking higher rent from the petitioner No. 2. It is further asserted in the same para that, the petitioner No. 1 without any sufficient cause has not used the suit premises continuously for a period of six months preceding the date of institution of the suit for the purpose for which it was let out to her but has illegally inducted the petitioner No. 2 as a sub-tenant. The petitioners denied the aforesaid assertions made in the plaint by filing written statement before the trial Court. The respondent examined three witnesses in support of his case; whereas the petitioners examined Laxmidas Harjivandas Pujara, husband of the petitioner No. 1, as well as petitioner No. 2. On analysing the evidence on record, the trial Court, as aforesaid, decreed the suit on the ground of non user of the suit premises and unlawful sub-letting. The Appellate Court has affirmed the findings returned by the trial Court on the said two grounds. 4. The learned Counsel for the petitioners submits that, although this writ petition is directed against concurrent findings returned by two courts below, however, according to him, the courts below have applied inappropriate tests in deciding the matter which has caused manifest injustice. The Appellate Court has affirmed the findings returned by the trial Court on the said two grounds. 4. The learned Counsel for the petitioners submits that, although this writ petition is directed against concurrent findings returned by two courts below, however, according to him, the courts below have applied inappropriate tests in deciding the matter which has caused manifest injustice. He submits that, although both the courts have rightly answered the ground of eviction that the petitioner No. 1 tenant having acquired alternative accommodation for residence against the respondent-landlady but, the courts below have made certain observations against the petitioners which are manifestly wrong for there was absolutely no legal evidence regarding acquisition of alternative premises by petitioner No. 1 or regarding suitability muchless to return a finding that the petitioner No. 1 tenant was residing at Borivli. According to him, the trial Court rightly observed that the evidence of the plaintiff does not reveal anything regarding the factum of petitioner No. 1 residing at Borivali. He submits that, even the Appellate Court has made similar observations in para 17 of its judgment, albeit while answering issue of petitioner No. 1 having acquired alternative premises for residence. However, according to him, the Appellate Court only observed that the mere knowledge of the plaintiff regarding acquisition by the tenant is not sufficient to claim eviction. He submits that, perhaps the Appellate Court was more impressed by the fact that there was no evidence regarding suitability of those premises. He submits that unquestionably, the main ingredients to answer the ground under section 13(1)(1) of the Bombay Rent Act are that the tenant has acquired alternative accommodation for residence and that the same is suitable for his residence. He submits that in the present case however, the respondent landlady also asserted that the petitioner No. 1 was residing at Borivali. He submits that the factum of petitioner No. 1 residing at Borivali may not be so much relevant for the ground under section 13(1)(1) but, as the respondent was also claiming that the suit premises are not used by the petitioner No. 1 (tenant) for more than six months preceding the date of institution of the suit and having unlawfully sub-let, proper adjudication of this fact would have been desirable. He submits that when the plaintiff asserts that the tenant is not using the suit premises then, the onus is on him to establish the fact. Only when the plaintiff would bring necessary legal evidence to establish that fact that the onus would shift on the tenant to rebut the said allegation and not otherwise. He submits that besides the bare words of the plaintiffs's husband (P.W. 1) that the petitioner No. 1 was presently residing at Borivali, the plaintiff has placed reliance only on some A.D. slip indicating that the same was attempted to be delivered to the petitioner No. 1 on her Borivali address. This evidence, submits Mr. Karandikar, cannot be said to be sufficient so as to hold that the plaintiff had discharged the onus or that the onus had shifted on the tenant to rebut the allegations. According to him, production of A.D. slip would not establish the factum of either the ownership, acquisition or suitability of the demised premises, so much so about the factum of petitioner No. 1 residing at Borivali. He submits that the plaintiff has completely failed to adduce any positive evidence on any of the abovesaid counts. He submits that, if this be so then, the courts below could not have decreed the suit on either ground whatsoever. He, therefore, submits that though two courts below have negatived the ground under section 13(1)(1) but, in the light of the above submissions it would be necessary to deal with the findings or reasons recorded by the courts below while answering the said ground. He submits that if this contention is accepted then, it would necessarily follow that the other grounds pressed by the respondent against the tenant will automatically fail. In other words, it is submitted that if it is held that the respondent has failed to establish the factum of petitioner No. 1 residing at Borivali then, it would automatically affect the conclusion regarding the grounds of non user of the suit premises and consequently that of unlawful sub-letting. For, the said two grounds essentially proceed on the assertion that the petitioner No. 1 tenant has vacated the suit premises and has shifted to the newly acquired premiss at Borivali. For, the said two grounds essentially proceed on the assertion that the petitioner No. 1 tenant has vacated the suit premises and has shifted to the newly acquired premiss at Borivali. In so far as the ground of non user is concerned, he submits that both the courts below have clearly misdirected themselves in clubbing the same along with the ground of unlawful sub-letting. In any case, he submits that, the courts below have clearly glossed over the aforesaid crucial aspect of the matter; and, at any rate, failed to record a clear finding that the suit premises have not been used for the purpose for which they were let out continuously for a period of six months preceding the date of institution of the suit. He submits that such a finding is the quintessence for invoking section 13(1)(k) of the Act. In other words, it is submitted that, in absence of such a finding, no Court could have decreed the suit under section 13(1)(k) of the Act. He further submits that, in any case, the reasons recorded by the two courts below to come to the conclusion that the suit premises were not used by the petitioner No. 1 cannot stand the test of judicial scrutiny. According to him, the said reasons are based on surmises and conjunctures, without there being any legal evidence on record to support the same. He further submits that even the reasons recorded with regard to the ground of unlawful sub-letting are concerned, the same are inextricably mingled with the ground under section 13(1)(k) of the Act, therefore, would also fall to the ground. He further submits that the evidence on record would not permit recording a finding on the ground of sub-letting against the petitioners. He has criticized the reasons recorded by the courts below to hold that the petitioner No. 2 is not a family member of the petitioner No. 1. He has attempted to demonstrate from the evidence on record that the finding so recorded by the two courts below was palpably wrong and in fact contrary to the evidence on record. He has criticized the reasons recorded by the courts below to hold that the petitioner No. 2 is not a family member of the petitioner No. 1. He has attempted to demonstrate from the evidence on record that the finding so recorded by the two courts below was palpably wrong and in fact contrary to the evidence on record. He submits that since the petitioner No. 2, is the family member of the petitioner No. 1, in law, the ground of unlawful sub-letting cannot be invoked especially in absence of any positive evidence regarding exclusive possession of the petitioner No. 2 and regarding the payment of consideration for that purpose to the petitioner No. 1, which is the prerequisite for invoking the ground of unlawful sub-letting. It is thus submitted that the courts below could not have decreed the suit either on the ground of non user or the ground of unlawful sub-letting, having regard to the facts and circumstances of the present case. 5. On the other hand, Shri Walawalkar, the learned Counsel for the respondent, submits that the two courts below have recorded concurrent findings of fact on the material issues and, therefore, this Court in exercise of writ jurisdiction ought not to interfere with same even though the courts below might have committed some error here or there. In substance, the learned Counsel has reiterated and adopted the reasons recorded by the courts below in decreeing the suit on the ground of non user and unlawful sub-letting. It is relevant to note that even the respondent is not satisfied with the reasons recorded by the courts below with regard to the issue of petitioner No. 1 having acquired alternative residential accommodation. He submits that, the Appellate Court has non-suited the respondent merely because the respondent had failed to adduce evidence on the issue of suitability of the newly acquired premises. He has relied on a decision of the Apex Court to contend that whether the newly acquired premises are suitable or not, the onus is on the tenant to adduce evidence in that behalf. At this stage, it may be mentioned that, this argument is raised for the first time during the oral submissions made across the bar at the hearing of this petition. At this stage, it may be mentioned that, this argument is raised for the first time during the oral submissions made across the bar at the hearing of this petition. No formal application or intimation is given to the petitioners or their Counsel that the respondent was considering of raising this challenge to the findings of fact recorded by two courts below against the respondent on the ground of alternative suitable accommodation. Be that as it may, the argument advanced on behalf of the respondent is essentially that there was ample evidence on record to show that the petitioner No. 1 tenant has acquired alternative suitable residence and that the suit premises were not being used by the petitioner No. 1 tenant herself for the purpose for which they were let out to her since 1981 and that she had inducted petitioner No. 2 who is unquestionably in exclusive possession of the demised premises since then. The learned Counsel, relying on the decision of the Apex Court, contends that, it is wholly unnecessary for the landlord to adduce evidence with regard to the factum of consideration being paid by the sub-tenant but, it is enough for the landlord to show that sub-tenant is in exclusive possession and the tenant has transferred possessory rights in his favour. He therefore submits that, no interference is warranted with the ultimate decision returned by the two courts below on the aforesaid two grounds. Besides making oral submissions, both the Counsel have later on filed written submissions before this Court. 6. I shall now first proceed to examine the ground under section 13(1)(l) that the petitioner No. 1 tenant having acquired alternative suitable residence. At the outset, I may point out that both the courts below have answered this ground against the respondent-plaintiff. Although, the respondent has not filed any formal petition challenging this conclusion, has attempted to invite this Court to examine the same. Nevertheless, I am pursuaded to examine this ground because, even the petitioners want this Court to efface the finding or observations recorded by the courts below on the factum of petitioner No. 1 residing at Borivali while considering this ground. Let us now advert to the manner in which the courts below have proceeded to examine this ground. Nevertheless, I am pursuaded to examine this ground because, even the petitioners want this Court to efface the finding or observations recorded by the courts below on the factum of petitioner No. 1 residing at Borivali while considering this ground. Let us now advert to the manner in which the courts below have proceeded to examine this ground. The trial Court has held that no evidence has been adduced by the respondent-plaintiff to establish that the petitioner No. 1 tenant has acquired alternative premises and regarding its suitability. While this conclusion is reached, the trial Court has merely adverted to the respondent's version that the petitioner No. 1 has started residing at Borivali which fact was fortified by the A.D. Slip produced on record. The trial Court then observes that denial of petitioner No. 1's signature by her husband (D.W. 1 Laxmidas Pujara) was of no consequence and that it was expected of the petitioner No. 1 to enter the witness box and deny it herself. The trial Court thus only noticed that denial by husband (D.W. 1) was not sufficient to prove that Ex. 30 (A.D. slip) does not bear the signature of petitioner No. 1. No doubt, the trial Court has made reference to these matters but, to my mind, has not recorded a clear finding one way or the other that the petitioner No. 1 was in fact residing only at Borivali. On the other hand, the conclusion to negative the ground under section 13(1)(1) is only on the premises that there is no evidence that petitioner No. 1 has acquired alternative residence and regarding its suitability. I would think it apposite to reproduce the relevant extracts from the judgment of the trial Court with regard to this ground, which read thus : "However, considering that the defendant is residing at Borivali it is necessary for the plaintiff to prove that the premiss where the defendant No. 1 is residing is acquired by her and it is sufficient and suitable for her. The evidence of the plaintiff reveals on this point that he does not know anything. He is not saying anything whether the said premises is suitable and sufficient. The evidence of the plaintiff also appears to be silent whether defendant No. 1 acquire that premises for her own. The evidence of the plaintiff reveals on this point that he does not know anything. He is not saying anything whether the said premises is suitable and sufficient. The evidence of the plaintiff also appears to be silent whether defendant No. 1 acquire that premises for her own. Therefore, unless burden of proving this fact is discharged by the plaintiff he will not be entitled to take the benefit of this ground only be effecting service of notice on that address...... In this present suit no evidence is forthcoming from the side of the plaintiff to show that the premises of Borivali is suitable and sufficient for the defendant. Therefore, mean saying I found in this case that the defendant has acquired premises at Borivali will not be sufficient to ask the possession from the defendant by the plaintiff. Hence, my answer to this issue is in negative." This is the only discussion noted by the trial Court. To my mind, the observation in the first extract "considering that the defendant is residing at Borivali.....", would mean that the trial Court proceeds on the assumption that the defendant is residing at Borivali but finds that the main ingredients for attracting section 13(1)(1) of acquisition and suitability are not established. This is not to say that the trial Court recorded a clear finding that the defendant was in fact residing only at Borivali. Even the Appellate Court has also examined the said ground only in this limited perspective, as was done by the trial Court. I shall advert to the discussion of the Appellate Court in paras 16 and 17 of its judgment which is the only discussion on this issue, which reads thus :- "Plaintiff alleges that defendant No. 1 left the suit house and shifted to his new residence at Borivali. Defendant No. 1 denied the shifting to the house at Borivali. Here again it is for the plaintiff to prove that defendant No. 1 secured alternative accommodation. Plaintiff produced acknowledgment slip showing the address of defendant No. 1 at Borivali. Defendant No. 1 denied her signature on the said acknowledgment enter into the witness box and state that it was not her signature. Her husband made a simple statement to that effect. Therefore mere denial is not sufficient. 17. However, what the law requires is that premises acquired by tenant must be sufficient as well as suitable. Defendant No. 1 denied her signature on the said acknowledgment enter into the witness box and state that it was not her signature. Her husband made a simple statement to that effect. Therefore mere denial is not sufficient. 17. However, what the law requires is that premises acquired by tenant must be sufficient as well as suitable. The perusal of evidence of plaintiff's husband would clearly show that he had no knowledge regarding the situation of this spot. He did not even allege that the Borivali's house was suitable and sufficient. It is also not known whether it was required for her residence or not. The ground for eviction of tenant on the ground of acquisition of other premises by the tenant is available to the landlord if it is found that it is sufficient and suitable. Mere knowledge of acquisition by the tenant is not sufficient to claim eviction. In my opinion learned Civil Judge considered all the aspects and rightly negative the contention of plaintiff." Understood thus, I find that grievance made by the Counsel for the petitioners that the courts below were not justified in recording a finding or observations that the petitioner No. 1 was residing only at Borivali is, totally ill advised and unwarranted for, neither the trial Court nor the Appellate Court has done so. Assuming that such a finding or observation has been recorded that will be of no consequence atleast for examining the ground under section 13(1)(1) of the Act. 7. Now, reverting to the grievance made by the respondent with regard to the inappropriateness of the conclusion reached by the courts below on this ground under section 13(1)(1), two courts below have recorded concurrent finding of fact that the respondent had failed to establish that the petitioner No. 1 has acquired alternative accommodation for her residence. To my mind the courts below cannot be faulted on this count. The finding so recorded is neither perverse nor suffers from any manifest error so as to warrant interference in writ jurisdiction. Besides, it is well settled that to invoke section 13(1)(1) of the Act the landlord is obliged to establish that the tenant has acquired alternative accommodation for his residence in his own rights. Even where the tenant is found to be residing at some other place, that by itself is not sufficient to attract the provisions of section 13(1)(1) of the Act. Even where the tenant is found to be residing at some other place, that by itself is not sufficient to attract the provisions of section 13(1)(1) of the Act. The Apex Court in the case of (Anandi Jadhav v. Nirmala Ramchandra Kore)1, as reported in 2000(3) Bom.C.R. (S.C.)6 : 2000(3) S.C.C. 703 has dealt with this aspect. As the respondent has failed to establish that the petitioner No. 1 tenant has acquired alternative suitable accommodation for residence at Borivali in her own rights, the question of applying section 13(1)(1) of the Act does not arise. The respondent would be however, right in contending that the courts below have committed manifest error in proceeding on the premises that the onus of establishing the fact that the newly acquired premises by the tenant were suitable or not was also on the landlord. Mr. Walawalkar is justified in relying on the decision of the Apex Court reported in A.I.R. 1987 S.C. 2016 (Ganapat Ram Sharma and others v. Smt. Gayatri Devi)2, to contend that whether the newly acquired premises by the tenant is suitable or not is a matter on which evidence should be led by the tenant. However, as observed earlier, even if this reason recorded by the courts below is to be discarded or overturned, even then it will not make any material difference to the ultimate conclusion reached by the courts below on this ground, for the respondent-plaintiff has failed to adduce any legal evidence to establish the crucial factum of ownership or acquisition of flat by the petitioner No. 1 tenant at Borivali in her own rights. A priori, no decree can be passed under section 13(1)(1) of the Act. 8. Before I proceed further, I would think it appropriate to advert to the provisions of sections 13(1)(e) and 13(1)(k) of the Act. The relevant provisions read thus :- "13. When landlord may recover possession. A priori, no decree can be passed under section 13(1)(1) of the Act. 8. Before I proceed further, I would think it appropriate to advert to the provisions of sections 13(1)(e) and 13(1)(k) of the Act. The relevant provisions read thus :- "13. When landlord may recover possession. (1) Notwithstanding anything contained in this Act (but subject to the provisions of sections 15 and 15-A) a landlord shall be entitled to recover possession of any premises if the Court is satisfied.--- (e) that the tenant has, since the coming into operation of this Act, (unlawfully sub-let) or after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, unlawfully given on licence, the whole or part of the premises or assigned or transferred in any other manner his interest therein, or (k) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or........". 9. On its plain language, both the provisions are preceptibly different, Nevertheless, both the courts below have clubbed these grounds and answered it together, albeit cryptically. This approach is plainly undesirable, for it is bound to forsake objectivity in the decision making process. The ingredients for attracting each of these provisions are entirely different. The courts below have obviously failed to adjudicate the matter in the context of the ingredients of the concerned provision. Besides the Appellate Court, which is undoubtedly the final fact finding Court, has disposed of the appeal in the same manner by answering both the grounds together. To appreciate the manner in which the matter has been decided by the lower courts, I would think it apposite to first reproduce the relevant extract from the judgment of the trial Court, which reads thus :- "As to Issue Nos. 4 and 5. It is the contention of the plaintiff that defendant No. 1 sub-letted the suit premises to defendant No. 2. But the defence of defendant is that defendant No. 2 is the family member and hence he is residing with them. But it appears from the evidence of defendant No. 2 that sometimes defendant No. 1 are to reside in her brothers home. The A.D. slip exhibit 30 also shows that defendant No. 1 was residing at Borivali. But the defence of defendant is that defendant No. 2 is the family member and hence he is residing with them. But it appears from the evidence of defendant No. 2 that sometimes defendant No. 1 are to reside in her brothers home. The A.D. slip exhibit 30 also shows that defendant No. 1 was residing at Borivali. But the husband of defendant No. 1 Laxmidas stated in his evidence i.e. in cross-examination that he is not having ration card at Kalyan. His name or defendant No. 1's name is not included in the Voter's list of Kalyan. He also admitted that he has no documentary proof to show that he is residing at Kalyan. He also stated that he is having his business in the area of Vasai and Virar. He is not having his business in the area of Vasai and virar. He is not having any depot at Kalyan. According to him he is carrying his business in the name of Pujara Traders and issuing bills for this Trade name and the bills bears his address. But defendant has not filed the bills to show that he is having his business at Kalyan and residing at Kalyan. He also not filed the copy of registration under Shop and Establishment Act though he is having. This all shows that defendant No. 1 is not residing at Kalyan. From Exh. 43 it appears that he closed his business of Kalyan on 30-7-1970 only. On the other hand it appears from the evidence of defendant Nos. 1 and 2 that defendant No. 2 is a person from separate family. Defendant No. 2 is carrying separate business as he is having one truck. The evidence of defendant No. 1 positively reveals that he is a member of separate family. His father is residing at Indore. He is earning separately from the Transport business. There is no evidence from the defendants that their business is combined and joint. There is no specific contention from the defendant in their W.S. Ex. 13 that defendant No. 2 is residing with them since beginning. It is stated by defendant No. 2 is residing with them since beginning. It is stated by defendant No. 2 in cross-examination para No. 4 that he came in Kalyan in the year 1979-80. It appears that defendant No. 1 started residing in the suit premises before 10 or 12 years. It is stated by defendant No. 2 is residing with them since beginning. It is stated by defendant No. 2 in cross-examination para No. 4 that he came in Kalyan in the year 1979-80. It appears that defendant No. 1 started residing in the suit premises before 10 or 12 years. Therefore, it is very clear that defendant No. 2 was not residing with defendant No. 1 since beginning. It is admitted by defendant No. 2 that he is residing in the suit premises. It is also stated by defendant No. 2 that the father of Laxmidas and his father are residing separately. Their business are also separate. Therefore, considering all these facts certainly ends me to say that defendant No. 2 is not the family member of defendant No. 1. The evidence of defendant Nos. 1 and 2 also reveals that defendant No. 1 is not residing in the suit premises and defendant No. 1 transferred the suit premises to defendant No. 2 as Licensee. It also appears that defendants have not obtained any permission from the plaintiff. Hence, it appears that defendant No. 1 unlawfully transferred his interest to defendant No. 2 and defendant No. 1 is not using the suit premises. Hence, my answer to these issues are in affirmative." Whereas, the Appellate Court has more or less toed the same line of discussion and answered the same as follows :- "Point Nos. 3 and 4 : As the evidence is common, I propose to discuss point Nos. 3 and 4 together, plaintiff alleges that defendant No. 1 sub-let suit house to defendant No. 2. Defendant No. 1 contends that defendant No. 2 is residing with him as his family members. To appreciate this point it once again becomes necessary to consider the oral evidence of the parties. Before that a look at position of law is desirable. 19. To prove sub-tenancy two ingredients have to be established. 1. Tenant must have exclusive right of possession or interest in the premises. 2. Right must be in lieu of some compensation or rent. One has to take the aid of the definition of sub-tenancy under section 105 of Transfer of Property Act. Before appreciating evidence it is necessary to bear in mind that defendant No. 1 acquired alternative premises at Borivali. Plaintiff failed to establish that premises at Borivali were suitable and sufficient. 20. One has to take the aid of the definition of sub-tenancy under section 105 of Transfer of Property Act. Before appreciating evidence it is necessary to bear in mind that defendant No. 1 acquired alternative premises at Borivali. Plaintiff failed to establish that premises at Borivali were suitable and sufficient. 20. It is now well settled that all that the landlord can seek to prove on such allegation of sub-letting is the fact that the premises are not being occupied by the tenant or any member of his family but by some outsiders. Once this is established the onus would seem to shift to the tenant to show who these outsiders are and explain the circumstances in which they came to occupy the premises. The relationship with the outsiders and the basis of occupation are facts within the special knowledge of the defendant tenant. 21. From the evidence of husband of defendant No. 1, it became clear that his name was not included in the voters list at Kalyan. He had no ration card in his possession at Kalyan. Admittedly his business is at Vasai and Virar. He did not indicate that he has his depot at Kalyan. It was quite possible for defendant No. 1 to adduce evidence. From document (Exh. 43) it appears that he closed his business at Kalyan in the year 1970 only. 22. From the evidence of defendant No. 1's husband, it was revealed that he is carrying on separate business. It does not appear that defendant No. 2 is the family member of defendant No. 1. Admittedly defendant No. 2 came to Kalyan in the year 1979-80. The sequence of events also indicates that defendant No. 1 inducted defendant No. 2 in the suit house illegally. Non-examination of original defendant No. 1 caused handicap in the proper assessment of evidence. It can be said that plaintiff discharged initial burden. Defendants did not discharge the burden shifted on them thereafter. Therefore in my opinion plaintiff proved sub-letting as well as non-used by clinching evidence." 10. On perusal of the abovesaid extracts it would appear that the courts below have not even adverted to the relevant pleadings, evidence of the respective parties in the context of each of these grounds nor made any attempt to analyse the respective evidence much less to evaluate and assess the same before returning the conclusion. On perusal of the abovesaid extracts it would appear that the courts below have not even adverted to the relevant pleadings, evidence of the respective parties in the context of each of these grounds nor made any attempt to analyse the respective evidence much less to evaluate and assess the same before returning the conclusion. Both the courts below, in my view, have merely recorded their conclusion without analyzing the efficacy of the evidence or have made any attempt to enquire into the fact as to whether the evidence so adduced by the respective parties can be said to be sufficient legal evidence to decisively answer the point in issue. The Appellate Court, being the final fact finding Court, was surely expected to under take this exercise. 11. Be that as it may, reverting to the ground under section 13(1)(k) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit, it is seen that the following facts will have to be established, being material facts, viz. a) non-user of the premises for the purpose for which they were let; b) non-user is without reasonable cause, and c) non-user is for a continuous period of six months immediately preceding the date of the suit. If any of the abovesaid requirement is not established, no decree for eviction under this provision can be resorted to. In so far as (a) and (c) above, the onus is initially on the landlord. If the same is discharged by the landlord then, the onus is on the tenant to establish that such non user was on account of a reasonable cause. This is the defence and protection provided to the tenant, which is in the nature of rule to show cause. But if the tenant fails to avail the same, the Court will have no option but to grant decree of eviction on this count. On plain language of this provision, to my mind, the same is attracted only when the premises have not been used for the purpose for which they were let continuously for a period of six months immediately preceding the date of the suit without a reasonable cause. There can be possibly three different situations. On plain language of this provision, to my mind, the same is attracted only when the premises have not been used for the purpose for which they were let continuously for a period of six months immediately preceding the date of the suit without a reasonable cause. There can be possibly three different situations. Firstly the premiss are kept in locked and unused condition or put to spasmodic use. We are not concerned with this situation in the present case. Secondly, where the premises are put to use for purpose in addition to the purpose for which they were let. We are neither concerned with this situation. For instance, in addition to residential user for which purpose the premises were let, the same were put to some other use also. Thirdly, when there is complete change in the purpose of user we are not concerned even with this situation. For instance, from residential to commercial. A priori, only when the premises are not used for the purpose for which they were let that the landlord would acquire right to sue, however, subject to the fulfilment of other requirements of that provision. The quintessence for attracting this provision is the non-user of the premises "for the purpose for which they were let". This is the fulcrum so as to attract the said ground. On the other hand, if the user of the premises is continued for the purpose for which they were let then, there would be no cause of action. The next question that needs to be posed in the context of the controversy in the present case is : can this section be invoked in a case where the premises are undoubtedly used for the purpose for which they were let but, by someone other than the tenant himself? To my mind, indubitably the answer shall be in the negative. There are atleast two very good reasons for this. Firstly, if we were to hold otherwise, it would amount to re-writing of that provision. The provision would then read as "that the tenant has not used the premises". By doing this the texture of that provision would get materially altered and would taantamount to doing violence to the legislative intent. There are atleast two very good reasons for this. Firstly, if we were to hold otherwise, it would amount to re-writing of that provision. The provision would then read as "that the tenant has not used the premises". By doing this the texture of that provision would get materially altered and would taantamount to doing violence to the legislative intent. Moreover, from the scheme of section 13 of the Act it will appear that, wherever the legislature intended that the default should be ascribed particularly to the tenant, for entailing in a right being accrued to the landlord to get possession of the premises, the legislature has made that express provision. This is evident, inter alia, from the language of Clauses (a), (b), (c), (d), (e), (f), (j) and (l) of sub-section (1) of section 13 of the Act. The legislature has expressly employed the phrase"..that the tenant has.....", which is conspicuously absent only in Clause (k). The second reason is that, each clause of sub-section (1) of section 13 of the Act i.e. Clauses (a) to (l), provide for completely different situation. None of the clauses in that sense are, so to say, overlapping. They are neither inter changeable. The material facts and ingredients to establish ground referable to each clause is materially different. In other words, if we were to say that someone other than the tenant was using the premises, obviously in exclusion to the tenant, then, that fact situation would be appropriate for invoking ground of unlawful sub-letting within the meaning of section 13(1)(e) but, by no stretch of imagination can be pressed for the ground under consideration i.e. section 13(1)(k) of the Act. 12. Applying the above principles to the facts of the present case it is not possible to countenance as to how this provision of section 13(1)(k) would apply. For, the respondent-plaintiff has proceeded on the assertion that the petitioner No. 2 is using the premises for the purpose for which they were let. In that sense, it is not a case of non-user of the premises for the purpose for which they were let as such. At best the assertion in the plaint or for that matter the evidence of the plaintiff, would suggest that the petitioner No. 1 tenant was herself not using the premises for the purpose for which they were let. At best the assertion in the plaint or for that matter the evidence of the plaintiff, would suggest that the petitioner No. 1 tenant was herself not using the premises for the purpose for which they were let. Surely then, the main ingredient to attract section 13(1)(k) of the Act of non-user of the premises for the purpose for which they were let is conspicuously lacking. Moreover, none of the courts below have recorded a clear finding that the premises have not been used continuously for a period of six months immediately preceding the date of the suit. Nay, there is no such evidence on record. Accordingly, the second crucial ingredient of this provision has also not been established or satisfied. On the other hand, on examining the reasons recorded by the courts below, suffice it to mention that the tests applied by them while adjudicating the ground under section 13(1)(k) are completely misdirected and palpably wrong which has caused serious miscarriage of justice. In the present case, it is established in evidence that the suit premises were let out for residential purposes. The fact which has gone uncontroverted in record is that the premises are being used for residence, albeit, according to the respondent, by petitioner No. 2 and not by the tenant herself. In other words, there is no dispute that the suit premises are being used even now for residence. In the backdrop of the fact situation of the present case, in law, no decree could be passed under section 13(1)(k). Accordingly, I have no option but to reverse the decree under section 13(1)(k), though passed by the two courts below. 13. Now we shall examine the ground of unlawful sub-letting. Unquestionably, to establish the ground of unlawful sub-letting under section 13(1)(e) of the Act, atleast two material ingredients will have to be established viz. a) that the sub-tenant is in exclusive right of possession or interest in the premises to the exclusion of the head tenant; and b) that right is exercised in lieu of some consideration. In this context we shall now first advert to the pleadings of the parties. The positive case made out by the respondent in para 3 of the plaint is "that in April 1981 the defendant No. 1-tenant and her family have gone to reside in the premises at Borivali along with her entire belongings. In this context we shall now first advert to the pleadings of the parties. The positive case made out by the respondent in para 3 of the plaint is "that in April 1981 the defendant No. 1-tenant and her family have gone to reside in the premises at Borivali along with her entire belongings. That the said residence at Borivali is adequate for the defendant No. 1 and she does not require the demised premises. For that reason and because the defendant No. 1 has unauthorisedly given the demised premises to the defendant No. 2 without the permission of the plaintiff. Or has transferred in any other manner. And the defendant No. 1 is taking an amount towards rent from the defendant No. 2 in excess of the actual rent of the demised premises and is thus profiteering. Accordingly the defendant No. 1 has acquired alternative and suitable accommodation for residence elsewhere. And the defendant No. 1 has not used the premises without any reasonable cause for the preceding more than six months. And the demised premises has been given to the defendant No. 2 as sub-tenant or has transferred in some other manner........ "Both the petitioners filed a common written statement and denied the abovesaid allegations. The petitioners' case on other hand was that the husband of petitioner No. 1 was doing business at Kalyan and he required the said premises. The petitioners asserted that the demised premises have never been kept in locked condition. It is further asserted that the petitioner No. 2 is the brother of the petitioner No. 1's husband and was staying in the demised premises as a member of the family along with her husband. It was denied that the petitioner No. 2 was the sub-tenant in the premiss. It was asserted that the premises were not in possession of petitioner No. 2. On the basis of these pleadings, the trial Court framed the issue of unlawful sub-letting , parties adduced evidence and, eventually the same was answered in favour of the respondent. We have already seen as to the manner in which this issue has been adjudicated both by the trial Court as well as the Appellate Court. To my mind, the tests applied by the courts below while answering this issue are palpably wrong and has caused manifest injustice. 14. We have already seen as to the manner in which this issue has been adjudicated both by the trial Court as well as the Appellate Court. To my mind, the tests applied by the courts below while answering this issue are palpably wrong and has caused manifest injustice. 14. On the other hand, in the backdrop of the rival pleadings and the evidence, the foremost question to be considered was whether the petitioner No. 2 was in exclusive right of possession or interest in the premises to the exclusion of the petitioner No. 1, the head tenant. To establish this fact, the respondent has come out with a positive case that the petitioner No. 1 has acquired alternative residential accommodation at Borivali and, in fact, is residing at Borivali since April 1981 (in evidence it is stated as September 1981). If the respondent succeeds in establishing these facts then, obviously the next factor will have to be considered. In so far as the former facts is concerned, both the courts below have concurrently found that the respondent has failed to establish that the petitioner No. 1 has acquired any residential premises at Borivali, albeit while examining the issue under section 13(1)(k) of the Act. Moreover, I have already observed earlier that the courts below have not recorded a clear finding of fact that the petitioner No. 2 was residing only at Borivali. To my mind, only then it would be possible to hold that the petitioner No. 2 was in exclusive possession of the demised premises. Besides, it will be necessary to also rule out the possibility that the petitioner No. 1 was having legal possession of the premises and that the petitioner No. 2 was without any right to include and also to exclude others. In all fairness to the trial Court it is necessary to point out that while considering issues Nos. 4 and 5, it has observed that "This all shows that defendant No. 1 is not residing at Kalyan" and "The evidence of defendant Nos. 1 and 2 also reveals that defendant No. 1 is not residing in the suit premises and defendant No. 1 transferred the suit premises to defendant No. 2 as licensee". However, for recording those observations the trial Court has made no reference to the nature of the rival pleadings, the evidence or for that matter made any evaluation of the evidence. However, for recording those observations the trial Court has made no reference to the nature of the rival pleadings, the evidence or for that matter made any evaluation of the evidence. The trial Court was mainly impressed by the fact that A.D. slip (Ex. 30) sent to petitioner No. 1 at the Borivali address was signed by her; non production of ration card; no inclusion of the name of petitioner No. 1 in the Voters List of Kalyan; no documentary evidence to show that she was residing at Kalyan; non production of any document to show that her husband was doing business at Kalyan etc. The entire approach of the trial Court of analysing the matter was manifestly wrong. Instead, the Court should have first examined the pleadings and the evidence of the respondent-plaintiff to find out whether she has discharged the initial burden of establishing the fact she had positively asserted, that the petitioner No. 1 had permanently shifted to Borivali and was not and had never thereafter used the demised premises or had any control over it. To my mind, manifest irregularity has been committed by the courts below in the decision making process. If this be so, the finding or observation recorded would be of no avail and it will have to be effected on this count alone. On the other hand, when we examine the pleadings and the evidence adduced by the respondent-plaintiff it is not possible to reach even at a prima facie opinion, leave alone to conclusively hold that she has discharged the initial burden of establishing the fact that the petitioner No. 1 and her family has shifted to Borivali along with her entire belongings in September 1981 or for that matter since then she was residing at Borivali only and had never entered or used the demised premises ever thereafter. I have already referred to the assertion in para 3 of the plaint. The respondent has examined her husband and two other witnesses. The respondent's husband (P.W. 1) has no doubt deposed that the petitioner No. 1 started residing at Borivali since September 1981 in a flat admeasuring about 1000 sq. ft. and at present she is not residing in the suit premises and left the premises, however, he has been confronted during the cross-examination. It is relevant to advert to the said portion of his evidence, which reads thus : "9. ft. and at present she is not residing in the suit premises and left the premises, however, he has been confronted during the cross-examination. It is relevant to advert to the said portion of his evidence, which reads thus : "9. I am not going to examine any/more witnesses. I cam to know the fact of residence of defendant No. 1 Borivali from one Pravin. The Pravin is staying at Kalyan but I am not going to examine him. I did not go to Borivali to ascertain whether defendant No. 1 is residing there or not. I have not inquired from Secretary of Owner of Ganja Apartment of Borivali whether defendant is residing there or not. I am not having any documentary proof to show that defendant is acquired the residential premises in "Ganja Apartment" at Borivali. It is not true that defendant No. 1 has not occupied any residential premises at Borivali. It is not true that I am deposing falsely that defendant No. 1 has acquired the residential premises admeasuring 1000 sq.ft. The family of the husband of defendant No. 1 was having the big coal business at Kalyan. I am not having any proof to show that the members of defendant No. 1's husband family have stopped their coal business at Kalyan. I am not having any documentary proof to show that the defendant No. 1 husband had started his business at Borivali or in that area. It is not true that I am deposing falsely that defendant's No. 1 husband had stopped his business at Kalyan and he started his business at Borivali. It is not true that I am deposing falsely that defendant No. 1 is not residing in the suit premises since September 1981. I am not having any personal knowledge as regards the persons of defendant's family. It is not true that defendant No. 2 is brother of husband of defendant No. 1 or brother-in-law of defendant No. 1. It is not true that since that defendant No. 2 is staying with defendant No. 1. It is not true that defendant No. 2 is staying with defendant No. 1 with my knowledge". (emphasis supplied). The next witness examined by respondent is Babu Bhosle (P.W. 2), the Inspector in Labour Office. The last witness examined is Vinayak Shankar Datara (P.W. 3), another tenant. It is not true that defendant No. 2 is staying with defendant No. 1 with my knowledge". (emphasis supplied). The next witness examined by respondent is Babu Bhosle (P.W. 2), the Inspector in Labour Office. The last witness examined is Vinayak Shankar Datara (P.W. 3), another tenant. Interestingly this witness admits that defendants are residing in the suit premises. In this examination-in-chief he has deposed as under : "1. I know defendant No. 1 and plaintiff Kailashbhai Tiwari. I also know defendant No. 2 Harshad Poojara. I know them because the plaintiff is the landlord and defendants are residing there......" (emphasis supplied). 15. In the backdrop of such evidence, it is not understood as to how the respondent-plaintiff can be said to have discharged her initial burden to establish the basic fact. It is surprising that both the courts below have not even adverted to this evidence and its efficacy but placed emphasis on matters which were secondary and inappropriate. On the other hand, the only conclusion that can be deduced from the above evidence is that the respondent had miserably failed to discharge the initial burden of establishing the fact asserted by her that the petitioner No. 1 had acquired another residential accommodation at Borivali or for that matter the fact that she was residing only at Borivali and had no control over the demised premises. As is evident, the evidence of respondent's husband on this aspect has not been corroborated at all. It is relevant to note that the building in which the suit premises is situated is big one-housing about 30 tenants. However, the respondent chose to examine only one Shri Datar (P.W. 3) and even he has deposed contrary to what was asserted by the respondent. Inasmuch as, he has deposed that the defendants (which obviously includes defendant No. 1) were staying in the suit premises. No doubt the respondent can be said to be justified in relying on the A.D. slip (Exhibit 30), which is the only positive evidence adduced by the plaintiff, however, that by itself cannot establish the fact that the petitioner No. 1 is the owner of the flat at Borivali or that she was permanently staying at Borivali and has severed or snapped all the casual connections with the demised premises. In so far as non-production of ration card is concerned, the explanation offered is that the petitioners do not have any ration card. The petitioners are justified in contending that if no ration card was ever availed, the question of its production would not arise. Moreover, it is not a case where that assertion is countered by producing any ration card issued in the name of petitioners. Similarly, in so far as the non-inclusion of the petitioners in the voters list is concerned, the evidence of the petitioners is very specific that their names have not been included in the voters list of Kalyan since beginning. Even this assertion is not countered. One can appreciate if the names were initially included and then removed. However, if the names are not included since beginning and, this version has gone unchallenged, it is not understood how an adverse inference can be drawn. The defendants have examined petitioner No. 2 (D.W. 2) and the husband of the petitioner No. 1-Shri Laxmidas Poojare (D.W. 1). Both these witnesses have deposed that the petitioner No. 1 was residing in the suit premises. The defendants would have been required to establish the fact that the petitioner No. 1 was residing in the suit premises; or for that matter the fact that the petitioner No. 2 was not in exclusive possession of the premises, only if the respondent had discharged her initial burden. To my mind, therefore, all the other reasons indicated by the Courts below are wholly impertinent and should receded in the background. Once we hold that the respondent-plaintiff has failed to establish the abovesaid basic facts as asserted by her then, it necessary follows that the petitioner has failed to discharge the initial burden of establishing that the petitioner No. 2 had exclusive right of possession or interest in the premises to the exclusion of the petitioner No. 1. In which case, no decree under the provisions of section 13(1)(e) can be resorted to. 16. The Appellate Court, while considering point Nos. 3 and 4 pertaining to this issue, proceeds on the assumption that the petitioner No. 1 has acquired alternative premises of Borivali. I have already extracted the reasoning of the Appellate Court. In which case, no decree under the provisions of section 13(1)(e) can be resorted to. 16. The Appellate Court, while considering point Nos. 3 and 4 pertaining to this issue, proceeds on the assumption that the petitioner No. 1 has acquired alternative premises of Borivali. I have already extracted the reasoning of the Appellate Court. To wit, it says, "Before appreciating evidence it is necessary to bear in mind that defendant No. 1 acquired alternative premises at Borivali.." In the first place this observation is on the basis of conjuncture and surmises. Secondly, it is completely inconsistent to the opinion recorded while examining point No. 2 relating to the ground under section 13(1)(l) of the Act. 17. Be that as it may, the courts below have essentially answered the issue of unlawful sub-letting on the premise that the petitioner No. 2 was not a member of the petitioner No. 1's (tenant's) family and, therefore, assumed that he was an outsider or a stranger who was stated to be in possession-thus constituting unlawful sub-letting. In fact, it will not be necessary for me to dwell on this matter, in view of the reasons indicated by me in the foregoing paras. Even if I were to go into this question, I would have no hesitation in over turning the said reasoning, for the same is completely contrary to the evidence on record as well as the settled legal position. The defendants have established the fact that the petitioner No. 2 and the husband of petitioner No. 1 are cousin brothers. Inasmuch as, the father of petitioner No. 2 and the father of the petitioner No. 1's husband are real brothers. In that sense they are blood relations. Both have entered the witness box and deposed to this fact and there is nothing on record to doubt their version on this count. Whereas, the trial Court proceeds to hold that the business of both the brothers was separate and that petitioner No. 2 started residing in the premises only after 1980 and was not residing since beginning of the tenancy. According to me, both the reasons are palpably wrong and inappropriate. Merely because the business of two brothers was separate and independent-would not snap their blood relationship. Moreover, the next reason that the petitioner No. 2 was not residing in the premises since beginning is also inapposite. According to me, both the reasons are palpably wrong and inappropriate. Merely because the business of two brothers was separate and independent-would not snap their blood relationship. Moreover, the next reason that the petitioner No. 2 was not residing in the premises since beginning is also inapposite. For on the basis of neither reason can it be said that, the petitioner No. 2 is not the family member of the petitioner No. 1. Even the Appellate Court perhaps intended to take the same view as taken by the trial Court, as is evident from para 22 of the judgment. 18. In my view, if the said reasoning is obliterated then, it necessarily follows that, as the petitioner No. 2 is the family member of the petitioner No. 1 tenant, possession of petitioner No. 2 assuming to be exclusive, in law, that by itself would not amount to sub-letting. However, the possession of the petitioner No. 2 would be only as a member of the family of petitioner No. 1. In this context it would be apposite to first advert to the decision of the Supreme Court reported in A.I.R. 1990 S.C. 1208 (M/s. Delhi Stationers and Printers v. Rajendra Kumar)3. In para 5 of the said decision the Apex Court has observed as under: "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 for right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. See (Gopal Saran v. Satya Narayan)4, A.I.R. 1989 S.C. 1141." (emphasis supplied). What falls from the aforesaid dictum is that mere possession of the petitioner No. 2 assuming to be exclusive, will not necessarily lead to an inference of either sub-tenancy or parting with possession in his favour. Understood thus, it was necessary for the respondent to further assert and establish that the petitioner No. 2 was in possession with right to induct and also right to exclude others. That is entirely lacking in the present case. Accordingly, the main ingredient for establishing the ground of unlawful sub-letting has not been satisfied. 19. Understood thus, it was necessary for the respondent to further assert and establish that the petitioner No. 2 was in possession with right to induct and also right to exclude others. That is entirely lacking in the present case. Accordingly, the main ingredient for establishing the ground of unlawful sub-letting has not been satisfied. 19. In an another decision, reported in A.I.R. 1982 S.C. 1091 (Baldev Sahai Bangia v. R.C. Bhasin)5, the Apex Court has had an occasion to examine the purport of expression "family". No doubt this judgment examines the provisions of section 14(1)(d) of the Delhi Rent Control Act (59 of 1958) whereunder the landlord would become entitled for a decree of possession if it is established that the premises which were let out for the use and residence have not been used either by the tenant nor any member of his family for a period of six months immediately preceding the date of filing of the application for recovery of possession therefor. This provision is some what similar to section 13(1)(k) of the Bombay Rent Act. The distinguishing factor of the two however, is that the Delhi Act specifically mentions that during the relevant period neither the tenant nor any member of his family was found to be residing in the demised premises. Whereas, in the Bombay Rent Act this requirement is conspicuously absent in section 13(1)(k) of the Act, for it only confines to the non-user for the purpose for which it were let. Be that as it may, this decision would be relevant to find out the wide meaning of the word "family" so as to discern the consequences if the tenant removes himself from the premises and allows the member of his family to occupy the suit premises for the purpose for which they were let out, in this case for residence. In the case before the Apex Court, admittedly, the tenant had migrated to Canada and allowed his mother, younger brother and sister to occupy the demised premises even after his departure. In that context the Apex Court examined the matter and found that expression "family" was wide enough to include the mother, younger brother and sister. However the dictum in this judgment would be apposite to answer the point in issue under consideration in the present case. In that context the Apex Court examined the matter and found that expression "family" was wide enough to include the mother, younger brother and sister. However the dictum in this judgment would be apposite to answer the point in issue under consideration in the present case. In paras 12, 17 and 19 of the said decision the Apex Court observed thus : "12. We have heard Counsel for the parties and given our anxious consideration, to all aspects of the matter and we feel that the High Court has taken a palpably wrong view of the law in regard to the interpretation of the term 'member of the family' as used in Clause (d) of section 14(1) of the Act in coming to its decision, the High Court seems to have completely overlooked the dominant purpose and the main object of the Act which affords several intrinsic and extrinsic evidence to show that the non-applicants were undoubtedly members of the family residing in the house and the migration of the main tenant to Canada would make no difference. The word 'family' has been defined in various legal dictionaries and several authorities of various courts and no Court has ever held that mother or a brother or a sister who is living with the older member of the family would not constitute a family of the said member. Surely, it cannot be said by any stretch of imagination that when the tenant was living with his own mother in the house and after he migrated to Canada, he has severed all his connections with his mother so that she became an absolute stranger to the family. Such an interpretation is against our national heritage and, as we shall show, could never have been contemplated by the Act which has manifested its intention by virtue of a later amendment. .......... 17. A concepts of the connotation of the term 'family' which emerges from a reference to the aforesaid dictionaries clearly shows that the word "family' which emerges from a reference to the wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. More particularly, in our country, blood relations do not evaporate merely because a member of the family-the father, the brother or the son-leaves his household and goes out for some time. Furthermore, in our opinion, the legislature has advisedly used the term that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant. The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises. In fact, it seems to us that Clause (d) of section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have been completely vacated by the tenant if he ceased to exercise any control over the property either through himself or through his blood relations. ............................. 19. It would appear that parents were expressly included in sub-clause (iii) it has also been provided that apart from the heirs specified in Clauses (a) to (d) (extracted above) even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family." 20. The petitioners have relied on the judgment reported in 1977 Mh.L.J. 443 (Nilavabai Sida Khajure v. Chanamalappa Bassappa Khajure and others)6. This Court while examining the meaning of expression 'family' has taken the view that the word 'family', not having been defined in the Hyderabad Tenancy and Agricultural Lands Act, the general meaning of the word used in the context of cultivation of land must be taken into consideration. The Court further held that the family relations do not come to an end for general purposes of blood relations by partition or separation which severs the legal status of a joint family. It has further held that mere fact therefore, that the person cultivating had separated would not alter the blood relationship and he does not cease to be a member of the family. It has further held that mere fact therefore, that the person cultivating had separated would not alter the blood relationship and he does not cease to be a member of the family. This judgment has been relied by the petitioners especially to assail the approach adopted by the courts below in placing emphasis on the fact that the defendant No. 2-petitioner No. 2 was carrying on separate business and therefore could not be treated as a member of the defendant No. 1's family but belonging to a separate family. On the other hand, the decision of the Supreme Court referred to above as well as of this Court in Khajure's case (supra) clearly hold that persons of blood relation will have to be treated as members of the family. Accordingly, the basis on which the courts below have proceeded to hold that the defendant No. 2 is not a member of the family and, therefore, wrongly assumed that he was a stranger and inferred his exclusive possession amounting to unlawful sub-letting of the demised premises is palpably wrong. Once we hold that the defendant No. 2-petitioner No. 2 was a member of the family then, it necessarily follows that his possession of the demised premises was in that capacity only. This aspect of the matter has been considered by this Court in a judgment reported in 2001(2) Bom.C.R. 616 : 2001(2) All.M.R. 289 (Shri Vasant Mahadev Pandit and another v. Zaibunnisa Abdul Sattar Dhuru and another)7. The Court has observed thus : "In other words, the evidence would unfailingly indicate that defendant Nos. 2 and 3 were occupying the suit premises only as the family members of defendant No. 1 and in no other capacity. If the premises are occupied by the family member, even if such member has joined the original tenant subsequently that by itself will not amount to creation of any subtenancy in his favour. Such interpretation cannot be countenanced at all, for even the legislature in its wisdom has thought it appropriate to exclude family members from being licensee. If reference is made to the definition of licensee, it would be seen that a member of the family residing together with the tenant is expressly excluded from the definition of licensee. Such interpretation cannot be countenanced at all, for even the legislature in its wisdom has thought it appropriate to exclude family members from being licensee. If reference is made to the definition of licensee, it would be seen that a member of the family residing together with the tenant is expressly excluded from the definition of licensee. If the principle underlying this legislative intent is applied to the fact situation I have no hesitation to hold that even if a family member starts staying with the original tenant at a later stage that by itself will not attract the mischief of unlawfull sub-letting." (emphasis supplied) Even the observations made by this Court in the case of (Babanrao Shankarrao Chavan v. Chandrashekhar Ramchandra Shinde)8, 1984(2) Bom.C.R. 671 would be useful, which reads thus :--- "9......It is not unknown in our country that when a widowed sister comes to reside with her brother and when she starts residing with him she resides not as a servant or a stranger, but resides as part and parcel of the family. This is the rule. There may be exceptions. But if there are exceptions, the exceptions have not to be proved by special evidence. In the absence of any such evidence to the contrary, it must be assumed that a widowed sister who comes to stay with her brother along with her young one would be staying with him not as a stranger but as brother's family "Likewise her younger son would be part of that very family" (emphasis supplied). 21. According to the respondent, the view taken by this Court in the above referred decisions is not the correct statement of law. The learned Counsel relied on the decision of the Supreme Court in 1973(2) S.C.C. 597 (Dr. Vijay Kumar and others v. M/s. Raghivir Singh Anekh Singh)9. However, on close examination of this judgment, to my mind, this is not an authority on the proposition which arises for our consideration in the present case. No doubt in that case the Apex Court affirmed the decree passed by the courts below on the ground under section 14(1)(b) of Delhi Rent Control Act. However, the Apex Court has rejected the appeal mainly because the finding of fact could not be impeached before it. In para 3 of this judgment the Apex Court has found thus: ".......These findings cannot be impeached before us. However, the Apex Court has rejected the appeal mainly because the finding of fact could not be impeached before it. In para 3 of this judgment the Apex Court has found thus: ".......These findings cannot be impeached before us. In the result, we would accept the conclusion of the Rent Controller that half of the shop was exclusively occupied by the second and third appellants and that the first appellants has parted with possession of that portion to them. The rejection by the Rent Controller of the plea of joint business also cannot be disturbed by us. It is a well reasoned finding." In para 4 the Apex Court has adverted to the argument advanced before it by the appellants therein that the first appellant being the father of the other two appellants established them in the business and permitted them to occupy a half portion of the shop for that purpose. It was submitted before the Apex Court that as a father it was natural for him to establish them in life. The Apex Court has then articulated the argument before it as: "In short, the argument is that the second and third appellants were occupying a half portion of the shop with his permission." The Apex Court has dealt with this argument in para 5 and in fact has observed that "It is a plausible argument....". However, the Apex Court declined to examine that plea because the same was taken for the first time in the special leave petition and moreover it was inconsistent with the plea taken in the written statement and not a pleading of law. This decision is, therefore, of no avail. 22. The next decision relied on behalf of the respondent is reported in A.I.R. 1988 S.C. 396 (Bhairab Chandra Nandan v. Ranadhir Chandra Dutta)10. In this case the premises were sub-let by the tenant to his brother. While considering the ground of sub-letting, the Apex Court has clearly observed in para 3 of the judgment that the trial Court found that, on his own admission the respondent had ceased occupying the rooms given to him and he had given the rooms to his brother. In this case the premises were sub-let by the tenant to his brother. While considering the ground of sub-letting, the Apex Court has clearly observed in para 3 of the judgment that the trial Court found that, on his own admission the respondent had ceased occupying the rooms given to him and he had given the rooms to his brother. In that case, the finding of fact recorded by the lower Court was that the evidence decisively proved that the appellant had permanently surrendered possession of the leased room to his brother and he had no intention of reoccupying the portion leased out to him. In that backdrop, the Apex Court in para 5 observed that the courts below had adequate material to conclude that the respondent had sub-let the premises, albeit to his own brother and quit the place and the sub-letting was without the consent of the appellant. In that context it observed that, admittedly, the tenant was living elsewhere and it is brother who was in occupation of the rooms taken on lease by the tenant. The Apex Court has further clearly observed that: "It is not as if the respondent is still occupying the rooms and he has permitted his brother also to reside with him in the rooms". These observations on the other hand clearly indicate that in a case where the main tenant occupies the demised premises along with his family members or for that matter retains his legal possession of the premises then it would not be a case of sub-letting. In the present case however, the respondent-plaintiff has failed to discharge the initial burden of establishing the fact that the petitioner No. 1 was not residing in the demised premises or had permanently surrendered possession to the petitioner No. 2 and that she had no intention of reoccupying the portion leased out to her. 23. The next judgment relied by the respondent is reported in 1997(11) Supreme Court Cases 334 (S.A. Vengadamma and others v. Jitendra P. Vora and another)11. In this judgment the Court was considering the provisions of Karnataka Rent Control Act, 1961. In that context, the Court observed that, possession of the brother was not as a family member of the tenant. The next judgment relied by the respondent is reported in 1997(11) Supreme Court Cases 334 (S.A. Vengadamma and others v. Jitendra P. Vora and another)11. In this judgment the Court was considering the provisions of Karnataka Rent Control Act, 1961. In that context, the Court observed that, possession of the brother was not as a family member of the tenant. It needs to be mentioned that the Karnataka Rent Control Act defines the word 'family; section 3(ff) of that Act, which defines the word "family" does not include the brother. In that context the Supreme Court observed that possession by brother of the tenant would amount to sub-letting, for the legislature has excluded the brother from the definition of the word "family". In the present case however, the Bombay Rent Act does not define the word 'family'. In the circumstances, we would be guided by the meaning of the word "family" as per the decision of the Apex Court in the matter of Baldev Bangia's (supra) to include the blood relations. 24. The next decision relied upon behalf of the respondent is A.I.R. 1993 Delhi 296 (Mrs. Kulwant Kaur v. S.P. Bawa)12. On close examination of this decision, with utmost respect, I find that this decision has clearly misread the judgment of the Apex Court in the case of Dr. Vijaykumar's case (supra). I have already analysed the judgment of the Apex Court in Dr. Vijaykumar's case in the paragraph 21 above. On the other hand, in para 11 of the subject decision, the Delhi High Court proceeds on the basis that the judgment of the Apex Court has held that where a father had allowed a part of the shop premises to be used by his two sons, who had set up a separate business, and a plea was raised that in face of the close relationship of father and sons, even when exclusive possession of part of the premises had been made over to the sons, it could not be a case of sub-letting, assignment or parting with possession, but only an attempt by the father to settle his sons, this defence has been rejected by the Apex Court. With utmost respect, as mentioned earlier, in para 5 of the judgment in Dr. Vijaykumar's case the Apex Court has observed that it is a plausible argument. With utmost respect, as mentioned earlier, in para 5 of the judgment in Dr. Vijaykumar's case the Apex Court has observed that it is a plausible argument. In that sense, the Apex Court has not said that such a defence is unavailable but disallowed the same as it was raised for the first time before it and was also inconsistent with the stand already taken in the written statement. In the circumstances, the decision of the Delhi High Court is of no avail to the respondent. 25. The other decision relied on behalf of the respondent is reported in 1994 Suppl. (3) Supreme Court Cases 697 (Dial Singh v. Amrishkumar and others)13. This decision takes the view that it is for the tenant to prove that he retains his legal possession and has been conducting business through his agent. In the present case however, that stage would not arise for, the landlady has failed to discharge the initial burden of establishing the fact that the petitioner No. 1-tenant was not residing in the premises as contended. 26. The next judgment relied upon by the respondent is reported in 1988(3) S.C.C. 1 (Bharat Sales Ltd. v. Life Insurance Corporation of India)14. This judgment essentially deals with the nature of proof so as to establish the ground of sub-letting. Strong reliance was placed on the observations made in para 4 of this decision. Para 4 is reproduced thus: "Para 4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In the process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt act and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. Rather, the scene is enacted behind the back of the landlord, concealing the overt act and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the persons to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let." In the first place, this opinion is recorded in the context of the argument raised before the Apex Court, as is found in para 3 of the judgment that, the courts below had failed to record a positive finding that there was payment of consideration by the so-called sub-tenants to the petitioner for parting with the part of possession of the disputed premises; for which reason no decree under section 14(1)(b) of the Delhi Rent Control Act could be granted. This argument did not find favour with the Apex Court. This argument did not find favour with the Apex Court. In the present case however, the fact that the petitioner No. 1 is not residing in the demised premises as asserted by the respondent, has not been established by her. As a consequence, the respondent wants this Court to examine the matter on the assumption that the petitioner No. 1 is not residing in the demised premises, which cannot be countenanced. Whereas, I am fortified in my view that mere possession of the petitioner No. 2 is not sufficient to infer either sub-tenancy or parting with possession in his favour and more so when he is a member of the tenant's family. This view is supported by the decision of the Apex Court in Gopal Saran's case in A.I.R. 1989 S.C. 1141 which has been followed in M/s. Delhi Stationers and Printers's case (supra). In my view, therefore, the decision in Bharat Sales Ltd. (supra) is not an authority on the proposition that mere possession of a member of the family would be sufficient to infer sub-letting. On the other hand, as observed by the Apex Court in Bharab Chandra Nandan's case (supra), that in a case where the main tenant occupies the demised premises alongwith his family members or for that matter retains his legal possession of the premises, just as in the present case, then it would not be a case of sub-letting. Understood thus, when a family member is in occupation of the demised premises, the courts would not readily accept the plea of unlawful sub-letting and particularly when the tenant and his relation assert and depose that the relative was staying only as a member of the family of the tenant, as has come on record in the present case. In such a case it will be expected from the landlord to bring some positive evidence to establish his assertion. By no stretch of imagination a family member can be coined as a stranger. The standard of proof and shifting of onus would be entirely different when a stranger is found to be in possession of the premises. In such a case it will be expected from the landlord to bring some positive evidence to establish his assertion. By no stretch of imagination a family member can be coined as a stranger. The standard of proof and shifting of onus would be entirely different when a stranger is found to be in possession of the premises. In case of a stranger in possession, it will be necessary for the tenant to bring some positive evidence on record to establish that the head tenant has retained the legal possession and that the stranger was allowed entry without any consideration, so as to extricate from the clutches of the ground of unlawful sub-letting. This will be the rule of evidence and no straight jacket formula can be evolved that even when a family member is in possession of the demised premises it would be possible to infer sub-letting as is sought to be contended before the Court. 27. Another decision which was relied upon by the learned Counsel for the respondent is reported in A.I.R. 1988 S.C. 1845 (Smt. Rajbir Kaur and another v. M/s. S. Chokosiri and Co.)15. This is again not an authority on the proposition that occupation by family member would amount to sub-letting. Even in this case the possession of the demised premises was found with a stranger; and in such a situation the Apex Court has observed that, 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. This decision is of no avail to the respondent. 28. The next decision which is relied on behalf of the respondent is reported in A.I.R. 1987 S.C. 514 (State of West Bengal and another v. Saral Kumar Sen Gupta and another)16. In this case the Apex Court was called upon to examine the question in the context of violation of lease granted for residence of tenant and his family members within the meaning of section 3(2) of West Bengal Government Premises (Tenancy Regulation) Act, 1976. In this case the Apex Court was called upon to examine the question in the context of violation of lease granted for residence of tenant and his family members within the meaning of section 3(2) of West Bengal Government Premises (Tenancy Regulation) Act, 1976. The Apex Court was mainly concerned with the question as to whether the tenant of Government premises had violated the terms of the lease as the lease specifically provided that the tenant and his family members alone would enjoy the premises. However, when it is found that the tenant did not stay along with the family members, the Court obviously held that there was violation of agreement of lease granted for residence and therefore decree for possession came to be ordered. In the present case, there is no such stipulation or condition imposed against the tenant either at the time of creation of tenancy or by any statutory provision. On the other hand, the respondent landlord has invoked ground within the meaning of section 13(1)(e) of the Bombay Rent Act and not under section 13(1)(a) of the Act which provides for recovery of possession if the tenant violates any of the conditions of tenancy. In the circumstances, it is not possible to hold that possession of the petitioner No. 2, who is the member of the tenant's family of the demised premises would amount to sub-letting within the meaning of section 13(1)(e) of the Act. 29. For the aforesaid reasons, I have no hesitation in overturning the decree for possession passed by the two courts below, though concurrent on the ground of non-user and unlawful sub-letting. 30. While parting I would like to express my displeasure regarding the manner in which both the courts below (Shri P.R. Belorkar) Joint Civil Judge, Kalyan and (Shri V.K. Deshpande), III Additional District Judge, Thane have adjudicated the matter. Their judgments, to say the least, so as to observe sobriety, are cryptic and unintelligible. It is distressing to note that their judgments are only orders or decisions without any adjudication and analysis of the pleadings or the evidence in relation to the material issue which is expected of any judicially trained mind. It is well-settled that the judgment should contain points for determination, discuss the evidence, oral and documentary, and give the reasoning on which conclusions are reached. It is well-settled that the judgment should contain points for determination, discuss the evidence, oral and documentary, and give the reasoning on which conclusions are reached. A judgment which does not set out all the points arising for determination and does not discuss evidence is no judgment and is for that reason vitiated. From the extracts of the decisions of both the Courts it is seen that it simply records the conclusion without noticing material pleadings or the evidence, and if I may say so, without giving intelligible reasons for either accepting or rejecting the same. The judgments under consideration are per se perfunctory. For observing brevity and lucidity in the judgments does not mean that it should not disclose or discuss the evidence on record. Perhaps the courts below were more obsessed with the quick disposal of the case, obviously causing casualty to the process of dispensation of justice. It is because of their laxity and casualness that this Court was virtually required to carefully wade through the entire evidence and undertake the job which was expected of the subordinate courts. An error of law in judgment of the subordinate courts can be excused, for no one can be infallible. I refrain to comment any further. The Registrar of this Court is directed to send copy of this judgment to the abovesaid two judicial officers if they are still in service and also place the matter before the appropriate authority for taking necessary action. 31. In the circumstances, this writ petition succeeds. The impugned order and decree for possession passed by the two courts below is set aside and instead the suit for possession filed by the respondent plaintiff is dismissed. Rule made absolute with no order as to costs. Certified copy expedited. Petition succeed. -----