( 1 ) PRESENT is a revision petition under Section-29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control, 1947 ("the Rent Act") against the Judgement dated 31st January, 1996 passed in Regular Civil Appeal No. 152 of 1986 by the learned assistant Judge, Valsad at Navsari reversing the Judgement and Decree dated 22nd july, 1986 passed in Rent Suit No. 38 of 1984 by the learned Civil Judge (S. D.), navsari, whereunder the Appellate Court has reversed the decree, which was passed against the defendant for his eviction. ( 2 ) THE plaintiff-applicant had filed the suit on various grounds, namely, illegal subletting/parting with possession by the tenants in favour of others, illegal construction without permission or authority of the landlord, non-user, breach of other conditions of the Rent Note and on the ground of arrears of rent. The tenant appeared before the learned trial Court and submitted that there was no subletting, they were not in arrears of rent, they did not make any illegal construction, the property was being regularly used by them and they did not commit breach of any conditions. After recording the evidence and hearing the parties, the trial Court observed that the tenant was in arrears of rent, but, as he had deposited the arrears, it accordingly issued a direction in favour of the landlord for payment of the said rent deposited in the Court. In relation to illegal construction, non-user for six months or more without any sufficient cause or breach of any other condition, the trial Court refused to grant any decree, but, granted decree in favour of the landlord holding, inter alia, that the tenant has sublet the premises or in the alternative has parted with possession in favour of defendant No. 4, namely, Manjulaben Shantilal mistry, who was running the business in the name of M/s. Jayshree Traders. The opponent, being aggrieved by the said decree of eviction, filed an appeal under section-29 of the Rent Act. The opponent, being aggrieved by the said decree of eviction, filed an appeal under section-29 of the Rent Act. The Appellate Court did not interfere in the matter in relation to illegal construction, non-user, breach of condition and arrears of rent as neither there were cross objections on behalf of the plaintiff nor it appears from the records that the plaintiffs ever submitted to the learned appellate Court that he wanted to support the decree on these grounds, which were not held proved in his favour by the trial Court. The Appellate Court, however, found that the landlord has failed in proving the creation of sub-tenancy or parting with possession. It accordingly allowed the appeal and dismissed the suit. The landlord now, being aggrieved by the said appellate judgement and decree, is before this Court. ( 3 ) THE learned Counsel for the applicants submits that from the records, it would clearly appear that the tenancy was created in favour of Govindjibhai morarjibhai Mistry and Dolatbhai Govindji Mistry and they have died during the pendency of the appeal and their legal representatives being not brought on record, the appeal had abated. It was also submitted that from the records, it would clearly appear that the sub-tenant/defendant No. 4, Manjulaben Shantilal mistry, was carrying on and was running a business in the suit premises in the name and style of M/s. Jayshree Traders and as the fact is proved, the tenant was liable to be evicted. It was also submitted that the two Courts below were unjustified in not granting decree on the ground of arrears of rent despite recording the findings that the tenant was in arrears of rent of Rs. 1,832/- on the date of the suit. The submission is that the appellate judgement and decree deserves to be set aside. ( 4 ) LEARNED Counsel for the other side submitted that death of Govindjibhai morarjibhai Mistry and Dolatbhai Govindji Mistry would not make much difference because it was a joint tenancy and as Shantilal, who happens to be the son of govindji, is already on record though in other capacity, but, as he continues to be the legal representative, the proceedings would not abate. For the arrears, it was submitted that the landlord, having not raised the ground before the appellate Court, would not be allowed in the Revision Petition to seek a decree for eviction on the ground of arrears of rent for the first time in these proceedings. For the sub-letting, it was submitted that nothing has been brought on record to show or suggest that the tenant had parted with possession or had assigned his rights in the property or had sublet the premises. The submission is that if the tenant is in exclusive possession of the property and if he allows one of his family members to use and occupy the property, then, the sub-tenancy cannot be presumed. ( 5 ) SO far as the question of abatement is concerned, I must immediately reject the contention because it is trite law that if one of the legal representatives of the deceased party is already on record, though in a different capacity, the proceedings would not abate. In the present proceedings, defendant No. 3, shantilal Govindji Mistry, who happens to be the son of defendant no. 1, Govindji morarji Mistry, is already on record, though in his capacity as alleged sub-tenant. The law would take its own recourse and the proceedings would not abate. ( 6 ) SO far as the question of arrears is concerned, true it is, that the tenant was in arrears of rent, but, the Appellate Court has recorded a finding that the tenant, having deposited the entire dues, was not liable to be evicted. The trial Court did not pass any decree on the ground of arrears of rent and this finding recorded by the learned trial Court was not challenged by the present applicant-plaintiff before the Appellate Court either by filing cross-objections under Order-41, Rule-22, or by raising a plea before the Appellate Court that the decree granted in favour of the plaintiff-landlord can be maintained on any other ground, which though was available to the landlord, but, have been negatived illegally. As the landlord did not raise this question before the appellate Court, he would not be allowed to raise a question before the revisional Court. The argument is rejected. As the landlord did not raise this question before the appellate Court, he would not be allowed to raise a question before the revisional Court. The argument is rejected. ( 7 ) PLACING reliance upon a judgement of the Supreme Court in the matter of joginder Singh Sodhi vs. Amar Kaur [ (2005) 1 S. C. C. 31], it was submitted that if parting of possession is proved, then, a court is obliged and duty bound to grant a decree. It was submitted that in the said case, the father had parted with possession in favour of the son and the Apex Court held that as there was no privity of contract between the landlady and the son of the tenant, the said son of the tenant was a stranger to the landlady and he was liable to be evicted. It is to be seen from paragraph-22 of the said judgement that in the said case, the Supreme Court has found that without written consent of the landlord, the father had inducted his son as his tenant and had parted with possession in favour of the son, who was staying separately and was found to be in exclusive possession of the shop. The Supreme Court, having observed that the son was in exclusive possession of the property, had issued a direction for eviction. ( 8 ) IN the present matter, the evidence brought on record shows that the tenants were running the firms, namely M/s. Vrundavan Saw Mills and Shri Krishna yogeshwar Timber Traders, so also Manjulaben Shantilal Mistry was carrying on business in the name and style of M/s. Jayshree Traders. The learned Counsel for the applicants submitted to this Court that non-grant of decree on the ground of creation of partnership in the name and style of M/s. Vrundavan Saw Mills and m/s. Shri Krishna Yogeshwar Timber Traders is not being challenged by him, but, he is confining his argument in relation to M/s. Jayshree Traders only. ( 9 ) IT was contended that undisputedly, M/s. Jayshree Traders is carrying on business in the premises, therefore, the Court must presume that they were inducted as sub-tenant or the original tenant had parted with possession in favour of m/s. Jayshree Traders. ( 10 ) THE argument raised by the learned Counsel for the applicants is based on certain presumptions. ( 10 ) THE argument raised by the learned Counsel for the applicants is based on certain presumptions. It presumes that a sub-tenancy was created, it presumes that M/s. Jayshree Traders were given part of the possession and thirdly, that m/s. Jayshree Traders were in exclusive possession of the property. Unfortunately, the requirement of the records has not been proved by the plaintiff. In a given case where the landlord proves that one of the family members is carrying on business in the suit premises in his independent capacity, then, that would not be sufficient, but, he would also be required to prove that possession of whole of the property or part of the property has been exclusively handled by the sub-tenant, which was handed over by the tenant to the sub-tenant. ( 11 ) BARRING the fact that M/s. Jayshree Traders were carrying on their business in the premises, nothing has been brought on record to show or suggest that M/s. Jayshree Traders were in exclusive possession of the property. In absence of such evidence, the judgement of the Supreme Court would be of no assistance to the landlord. Even otherwise, the findings in relation to non-user and parting with possession would be mutually exclusive. When the two Courts below have found that the landlord has failed to prove non-user and having recorded a finding that the landlord is still using and occupying the premises, then, the finding regarding parting with possession would run contrary to the first finding. The moment possession is parted with, then, automatically, there is non-user by the tenant. In the present case, the tenants have proved to the satisfaction of the Court that they have simply allowed one of the family members to carry on business in the premises and they have also proved to the satisfaction of the two Courts that they have not parted with possession in favour of M/s. Jayshree Traders. ( 12 ) AFTER giving my due consideration to the arguments, I am unable to hold that the learned first Appellate Court was unjustified in dismissing the suit. I find no reason to interfere. The revision is dismissed. Rule is discharged. .