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2007 DIGILAW 1076 (RAJ)

Amrit Lal v. Sohan Kumari

2007-05-21

PRAKASH TATIA

body2007
JUDGMENT 1. - Heard learned counsel for the parties. 2. Plaintiff respondent's Civil Original Suit No. 101/92 was decreed by the trial Court vide judgment and decree dated 26th March, 1996 against the defendant-appellants. The regular first appeal against the said judgment and decree was dismissed by the learned appellate Court vide judgment dated 31st March, 1998 and hence this second appeal by the defendants. 3. The facts in brief relevant for the purpose of deciding this appeal are that the plaintiff filed the suit for eviction of the tenant on 27th April, 1992 on the ground of reasonable and bona fide necessity of the suit premises for plaintiff and because of the reason that, according to the plaintiff, the defendant No. 1 sublet the suit shop to his two brothers defendants No. 2 and 3. The plaintiff claimed rent for the suit shop at the rate of Rs. 300/- per month. Since at that time, the cause of action for seeking decree for eviction on the ground of default in payment of rent by the tenant did not accrue to the plaintiff, therefore, the suit was not filed on the ground of default in payment of' rent. The defendant submitted counter claim, denying the allegation of subletting as well as denying the need of the plaintiff. The defendant also submitted that after filing of the suit, the plaintiff got one shop vacated and let it out to another tenant in the month of June, 1992. The defendant also submitted counter claim for fixation of standard rent to Rs. 70/- per month from Rs. 300/- per month. The learned trial Court fixed the provisional rent by order dated 6th August, 1993 to Rs. 300/- per month. The defendant was under the impression that the trial Court determined interim rent under Section 13(3) of the Act of 1950 submitted an application before the trial Court on 21st August, 1993 and sought extension of time for depositing of the rent in the Court which was granted by the trial Court on the same day by order dated 21st August, 1993. The defendant also challenged the order of the trial Court dated 6th August, 1993, fixing the provisional rent at the rate of Rs. 300/- per month, by filing appeal. The Appellate Court stayed the operation of the order dated 6th August, 1993 by order dated 25th August, 1993. The defendant also challenged the order of the trial Court dated 6th August, 1993, fixing the provisional rent at the rate of Rs. 300/- per month, by filing appeal. The Appellate Court stayed the operation of the order dated 6th August, 1993 by order dated 25th August, 1993. On 27th November, 1993, the appellate Court dismissed the defendant's appeal challenging the order dated 6th August, 1993, after holding that the trial Court did not determine the rent either under Section 13(3) or under Section 7 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, therefore, the appeal is not maintainable. The defendant-tenant, on the same day, on 27th November, 1993 itself, submitted challan for depositing the rent in the Court which was processed and given back to the defendant on 30th November, 1993 by the Court. The defendant deposited the rent on 1st December, 1993. 4. After all above, the plaintiff filed an application under O. 6, Rule 17, CPC, on 2nd February, 1994 in the trial Court to include the ground of eviction against the defendant which accrued to the plaintiff after 1st January, 1993. The application was allowed by the trial Court vide order dated 25th March, 1994. Therefore, from 25th March, 1994, the suit for eviction of the tenant which was on the ground of personal necessity of the plaintiff, the sub-letting of the suit premises by the tenant also became suit for eviction of tenant on the ground of default in payment of rent from 1st January, 1993. The defendant submitted amended written statement and denied the default in payment of rent. 5. On 6th October, 1994, the trial Court took up the case for passing the order under Section 13(3) of the Act of 1950 as it is the duty of the Court to determine the arrears of rent, in case the suit for eviction of tenant is filed on the ground of default in payment of rent. The trial Court in its order dated 6th October, 1994, rejected the defendant's contention that the rent be determined on the basis of the rent at the rate of Rs. 70/- per month. The trial Court determined the rent at the rate of Rs. 300/- per month on the basis of the last paid rent. The trial Court in its order dated 6th October, 1994, rejected the defendant's contention that the rent be determined on the basis of the rent at the rate of Rs. 70/- per month. The trial Court determined the rent at the rate of Rs. 300/- per month on the basis of the last paid rent. The trial Court found that as on 6th October, 1994, no arrears of rent was due in the defendant, therefore, the defendant is required to pay the rent month by month by depositing the rent in the plaintiff's Bank account number given in the order dated 6th October, 1994 itself. The tenant deposited the rent in the Bank account of the plaintiff after 6th October, 1994 during entire trial and this fact is not in dispute. 6. The learned trial Court decreed the suit of the plaintiff on the ground of personal bona fide necessity of the plaintiff, the subletting of the suit premises to the defendants No. 2 and 3 by the defendant No. 1 as well as the ground of default in payment of rent. The trial Court held that the plaintiff failed to prove that he deposited the rent in pursuance of the order dated 6th August, 1993 within a period of 15 days, nor he submitted any application for extension of time. Therefore, the tenant-appellant is liable to be evicted under Section 13(1)(a) of the Act of 1950 read with Section 7(4) of the Act of 1950. The judgment and decree of the trial Court was challenged by preferring the regular first appeal, which was dismissed by the Appellate Court, as stated above by judgment and decree of the Appellate Court dated 31st January, 1998. 7. The appeal was admitted by this Court, after formulating the substantial questions of law on 25th March, 1998 which are as under : "(i) Whether the finding of the lower Courts that the defendant-appellants are not entitled to the benefit of the provisions of Section 13(6) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 is perverse and against the provisions under the Act? (ii) Whether the finding in favour of the plaintiff regarding the reasonable and bona fide necessity and comparative hardship given by the lower courts is perverse and based on misreading and ignoring the evidence on record particularly the fact of acquiring the vacant possession of the neighbouring shops by the plaintiff and let out by her to other tenant? (iii) Whether without specific plea regarding want of consent of landlord for sub-letting the suit premises, no foundation for ground of eviction under Section 13(1)(e) of the Act, 1950 is laid, in view of Section 108 Q) of the Transfer of Property Act? (iv) Whether in the facts and circumstances of the case, the lower courts erred in law and the finding regarding sub-letting of the premises is perverse and based on misreading and over-looking the evidence on record?" According to the learned counsel for the appellant, the finding of both the courts below on the question of default in payment of rent is vitiated, because of the order of the trial Court dated 21st August, 1993 which was passed on the back side of the application itself filed by the defendant-tenant for extension of time as that order escaped the notice of the two courts below. Otherwise also, the decision on issue of default, of both the courts below is illegal, because of the reason that the order dated 6th August, 1993 was held by the Appellate Court to be not under Section 13(3) of the Act of 1950 and, therefore, the consequence is that the order of the trial Court dated 6.8.1993 was under Section 13(3) of the Act of 1950. Therefore, unless an opportunity is given to the defendant-tenant to deposit the rent as determined under Section 13(3) of the Act of 1950, the suit on the ground of default cannot be decreed against the tenant for his eviction. Further, according to the learned counsel for the appellant, even the suit of the plaintiff for eviction of the tenant on the ground of default can be deemed to have been instituted only from 2nd February, 1994 when for the first time ground of default was added in plaint by amendment. Therefore, on the basis of any default prior to 2nd February, 1994, no suit for eviction of the tenant could have been decreed by the courts-below. Therefore, on the basis of any default prior to 2nd February, 1994, no suit for eviction of the tenant could have been decreed by the courts-below. Not only this, the finding of both the courts below that the defendant did not deposit the rent in time, in pursuance of the order dated 6th August, 1993, is contrary to the order of the trial Court dated 6th October, 1994, no arrear of rent was due in the defendant-tenant. Apart from above, the rent was determined for the first time by order dated 6th October, 1994 under Section 13(3) of the Act of 1950 and it is admitted case that the tenant has not committed any default thereafter in payment of rent during trial. 8. For finding a question of subletting, learned counsel for the appellant submitted that both the courts below even failed to read the evidence of the plaintiff apart from the fact that both the courts below did not look into the pleadings as submitted by the plaintiff, wherein the ground of subletting was raised. The plaintiff no-where stated that the defendant No. I sublet the suit shop to the defendants No. 2 and 3, who are real brothers of the defendant No. 1, without the consent of the landlord-plaintiff. The two courts below even ignored the material piece of evidence and that was the admission of the plaintiff, wherein the plaintiff clearly stated that the defendants No. 2 and 3 are in occupation of the shop property since 15 years prior to filing of the suit by the plaintiff and one of the defendants alleged sublettee informed the plaintiff also that they are in occupation of the rented premises. The plaintiff clearly admitted that the alleged sublettee was paying the rent to the landlord since beginning of tenancy. Apart from the above, the plaintiff by her conduct clearly admitted that all the defendants are in the suit shop since the tenancy started, therefore, there cannot raise any cause of action to the plaintiff to file the suit for eviction of the appellant on the ground of alleged subletting of the suit property. It is also submitted that the defendant No. 1 alone is in exclusive possession of the suit property and the defendants alleged sublettees also clearly stated that they are using the premises with only defendant No. 1. 9. It is also submitted that the defendant No. 1 alone is in exclusive possession of the suit property and the defendants alleged sublettees also clearly stated that they are using the premises with only defendant No. 1. 9. On the question of bona fide necessity, the learned counsel for the appellant submitted that the necessity projected by the plaintiff is on the face of it a false device to get the tenant evicted from the suit shop. The plaintiff herself obtained the possession of the vacant shop during the pendency of the suit and on occupying the said premises, let it out to other tenant and the First Appellate Court observed that at the time when the property was let out to other tenants by the landlord, at that time, the plaintiff was in service. Then, in that situation, the suit of the plaintiff should have been dismissed on the ground that the no cause of action accrued to the plaintiff to file the suit before she retired. It is submitted that the suit could have been filed for future need then, in case the Court would have decreed the plaintiff's suit on this ground of his personal necessity before plaintiff's retirement, then admittedly the plaintiff was not in a position to use the shop for the purpose, for which she sought eviction of the tenant and the decree would have been in violation to Section 15 of the Act of 1950. 10. Learned counsel for the respondents submitted that the trial court determined the rent on 6th August, 1993. On that day, no suit for eviction of tenant on the ground of default in payment of rent was pending before the trial Court as ground of default was added in suit for the first time by amending the plaint in the month of August, 1994. It is submitted that as per sub-section (4) of Section 7 of the Act of 1950, the Court was under obligation to fix the provisional standard rent. Sub-section (4) of Section 7 of the Act of 1950, the Court was under obligation to fix the provisional standard rent. It is submitted that as per sub-section (4) of Section 7 of the Act of 1950, the Court was under obligation to fix the provisional standard rent. Sub-section (4) of Section 7 of the Act of 1950, the Court was under obligation to fix the provisional standard rent. Sub-section (4) of Section 7 clearly says that in case the defendant failed to make the payment of the provisionally determined rent as determined under sub-section (1) of Section 7 of the Act of 1950 by 15th of the day of the next following month, then tenant is liable to eviction under clause (a) of sub-section (1) of Section 13 of the Act of 1950. In the present case, even if the Appellate Court, by order dated 27th November, 1993, held that the rent was not determined either under Section 7 or under Section 13(3) of the Act of 1950, even then it is clear that the order in fact was passed under sub-section (1) of Section 7 of the Act of 1950. Admittedly, the defendant's appeal challenging the trial Court's order dated 6.8.1993 was dismissed by the appellate Court, therefore, order dated 6.8.1993 created liability upon the defendant tenant and he was bound to deposit the rent in pursuance of the order dated 6.8.1993 passed by the trial Court. In view of the above, the two Courts below rightly held that the defendant failed to deposit the rent in time in pursuance of the order dated 6th August, 1993. 11. According to the learned counsel for the respondents, it appears that when the suit premises was vacated by the plaintiff is another tenant during the pendency of the suit and it was let out to other tenant by landlord, but that was let out because of the reason that in the year June, 1992, the plaintiff was in service and, therefore, the two courts below rightly decreed the suit of the plaintiff on the ground of personal bona fide necessity. 12. It is also submitted that the defendant nowhere stated that the defendants are members of the joint Hindu family and they are residing in the suit premises. The Courts below rightly observed that it is unbelievable that the members of three family can live in the suit premises where they are running the hotel also. 12. It is also submitted that the defendant nowhere stated that the defendants are members of the joint Hindu family and they are residing in the suit premises. The Courts below rightly observed that it is unbelievable that the members of three family can live in the suit premises where they are running the hotel also. The two courts below also considered the other facts from which it is proved that the defendant No. 1 has shifted his business from the shop in dispute. The defendant No. 1 did not produce his son in the witness box to prove that other shop/hotel is of defendant No. 1's son only. Learned counsel for the respondents plaintiff further submitted that even summon of the defendant No. 1 was served in his newly acquired hotel premises, whereas the summons of defendants No. 2 and 3 were served on the address of the property in dispute. By this, it clearly proved that the defendant No. 1 shifted his hotel business from the suit shop and handed over the possession of the suit shop to the defendants No. 2 and 3, therefore, the finding of the two courts below on all the issues recorded on the basis of the evidence on record and, therefore, this Court may not interfere in the finding of fact recorded by the two courts below concurrently. 13. Learned counsel for the respondents submitted application in this second appeal on 15th May, 2007 and stated that the sole tenant respondent No. 1 -Amrit Lal died on 1st July, 2002 and appellants submitted an application under Order 22, Rule 3 , CPC, for bringing on record the legal representatives of the deceased tenant Amritlal, which was allowed by this Court by order dated 11th December, 2002. According to the learned counsel for the respondent plaintiff, since none of the legal representatives of deceased tenant was carrying on business with the respondent, therefore, none of the legal representatives of defendant No. 1 appellant No. 1 -Amritlal is protected by the provisions of the Rent Control Act of 1950 and, therefore, the appeal of the appellant may be dismissed. 14. I considered the submissions of the learned counsel for the parties and perused the record also. 14. I considered the submissions of the learned counsel for the parties and perused the record also. The contention of the learned counsel for the appellant that the appeal of the appellant be dismissed due to the fact of death of appellant No. 1 the tenant is required to be considered first was it goes to the root of the matter. According to the respondent, plaintiff was all alone tenant in the suit shop. Facts on record reveals that after the death of appellant No. 1, application was submitted by the other appellants, the brothers of the appellant No. 1 on 3rd October, 2002, stating in para 2 specifically that the applicants No. 6 to 8 who are sons of the deceased Amritlal were carrying on business along with deceased Amritlal during his life time and upto his death and, therefore, they are tenant as defined under Section 3(vii) of the Act of 1950. This application was allowed by this Court by order dated 11th December, 2002, after hearing the learned counsel for the plaintiff-respondent and the legal representatives of appellant No. 1, including his three sons, were taken on record. The plaintiff never submitted that the appellant No. 1's sons applicants No. 6, 7 and 8 were not carrying on business with deceased tenant appellant No. 1 during his life time and upto the time of his death. After five years, the application has been submitted by the plaintiff respondent in this Court on 18th May, 2007, wherein it has been stated that the legal representatives of the appellant No. 1 are not protected by the Act of 1950. The application deserves to be dismissed merely on the ground that the respondent plaintiff did not dispute the fact of appellant No. 1's sons doing the business with deceased Amritlal during his life time and upto the time of his death, when the application of the appellant filed under O. 22, rule 3, CPC, was considered. Otherwise also, the respondent failed to show that merely because of non-availability of the protection to the tenant of the provisions of the Rent Control Act, whether it itself can be a ground for dismissal of the appeal of the tenant preferred against the judgment and decree of the trial Court, merely due to the death of the original tenant. 15. 15. Otherwise also, the appeal cannot be dismissed, because of the raising of the objection by the respondent plaintiff on the ground which is based on disputed questions of facts. The definition of the legal representatives as given in the CPC is clear and the appeal cannot be dismissed merely because of the fact that though the persons substituted in place of the deceased appellant are legal representatives, still they cannot continue the appeal. Therefore, the objection raised by the appellant about the non-maintainability of the appeal after the death of the appellant No. 1 deserves to be rejected. Hence it is rejected. 16. The substantial question of law No. 1 is in relation to the alleged disentitlement of the benefit of sub-section (6) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 is concerned, the substantial question of law No. 1 was framed by this Court. The facts stated above clearly reveal that the trial Court provisionally fixed the standard rent of the suit premises vide order dated 6th August, 1993 and has not determined under Section 13(3) of the Act of 1950. The appeal against the trial Court's order dated 6th August, 1993 was dismissed by the Appellate Court, after holding that the order was not under Section 13(3) or Section 6 or Section 7 of the Act of 1950. In that view of fact, in either case, when the order of dismissal of the defendant's appeal challenging the order of provisional fixation of rent is taken as it is of dismissal of appeal alone and not setting aside of the order dated 6th August, 1993 of the trial Court, then also, both the Courts below committed serious error in denying the benefit of sub-section (6) of Section 13 of the Act of 1950 to the tenant. Sub-section (3) of, Section 13 of the Act clearly provides that the Court will determine arrears of rent due in tenant and will give opportunity to the tenant to deposit the determined arrears of rent within stipulated period and tenant, after order determining the rent is under obligation to deposit the said rent as well as monthly rent by 15th day of each month during pendency of suit. Admittedly, the suit filed originally as on 27th November, 1992 and as it was on August 6, 1993, was not on the ground of default in rent by the tenant. The trial Court also did not determine the rent under Section 13 (3) of the Act of 1950, therefore, there could not have any occasion for the defendant tenant to deposit the rent under Section 13(4) of the Act, therefore, there could not have any occasion for application of sub-section (5) or (6) of Section 13 of the Act of 1950, where neither the suit was on the ground of default, nor the rent was determined under sub-section (3) of Section 13 of the Act of 1950. On this ground alone, the finding that defendant did not pay the rent in pursuance of the order dated 6th August, 1993, is absolutely contrary to law. 17. Not only above, but both the courts below committed grave error of law by ignoring the order of the trial Court dated 6th August, 1994, by which the trial Court determined the rent under Section 13(3) of the Act of 1950 for the first time after amendment of the suit by which the ground of default was incorporated in the suit after the order of the trial Court dated 15th March, 1994. In the order dated 6th October, 1994, the trial Court clearly held that the defendant already paid all the arrears of rent upto the period of September, 1994 and no arrears of rent is due in the defendant. In that fact situation, the trial Court could not have taken a view contrary to its order dated 6th October, 1993 and could not have held that the defendant has not deposited the rent in pursuance of the order dated 6th August, 1993 within the stipulated period of time. On this ground also, the decision of both the courts below on the issue of default is contrary to law. It is admitted case of both the parties that the tenant not only deposited the arrears of rent prior to 6th October, 1994, but continued to pay the rent by depositing the rent in the Bank account of the plaintiff after 6th October, 1994 during the period of trial. It is admitted case of both the parties that the tenant not only deposited the arrears of rent prior to 6th October, 1994, but continued to pay the rent by depositing the rent in the Bank account of the plaintiff after 6th October, 1994 during the period of trial. In view of the above, the substantial question No. 1 is decided in favour of the appellant and the finding of the two courts below, denying the benefit under Section 13(6) of the Act of 1950 is set aside. 18. The second substantial question of law is in relation to challenge to the finding of the two courts below on the question of personal bona fide necessity of the plaintiff. The finding has been challenged on the ground of its being perverse as well as because of misreading of the evidence and ignoring the material evidence which is already on record. Learned counsel for the appellant submitted that it is admitted case of the plaintiff respondent that she was in service on the date when the suit was filed, therefore, the suit for eviction of the tenant was filed for alleged future need of the plaintiff. The suit was filed on 27th November, 1992 on the ground of personal bona fide necessity of the plaintiff as well as on the ground of sub-letting, a year after the landlord got the vacant possession of the suitable shop from her own tenant for running her own business and she let out that shop to another person in the month of June, 1992. This fact was not appreciated by the courts below and the First Appellate Court observed that the tenant had no need of the shop in the month of June, 1992 as she did not retire by that time. According to the learned counsel for the appellant, if the said view of the courts below is correct then, the suit of the plaintiff should have been dismissed, merely on the ground that on the date of filing of the suit, there was no cause of action for seeking eviction of the tenant on the ground of personal bona fide necessity of the plaintiff. In the alternative, in view of the various judgments of the other High Courts and the Supreme Court as well as of this Court, a suit can be filed for the future need of the plaintiff then, the satisfaction of the need of the availability of any suitable accommodation to the landlord some time prior to his retirement from the service was certainly a relevant fact, otherwise if the Court would have passed the decree in the year 1992 itself, before June, 1992, then, the landlord could not have used the shop for the purpose for which she sought eviction. Then there are two standards; one for the shop was though available, was not used by the landlord and another for the suit shop. Then out of these two shops which the landlord gets through court of law is alone suitable and would satisfy the need of the plaintiff, but the shop which naturally came in possession of the landlord and which is suitable to the need of plaintiff, still that shop will not be there as the shop satisfying the need of the plaintiff. 19. It was difficult for the learned counsel for the respondents also to justify the reasons given by the courts below for rejecting the contention of the appellant tenant that, had there been any real need of any shop for the plaintiff, then she would not have let out the shop to another tenant during pendency of the suit for eviction of present tenant appellant. It is not in dispute that suit can be filed for eviction of the tenant by the landlord on the ground of future need of the landlord, then if the alternate accommodation of the same nature and suitable to the, need of the plaintiff comes in the possession of the landlord, then it is for the landlord to explain the reasons for letting that shop to other tenant and insisting for eviction of the tenant, against which the landlord has filed the suit. The landlord cannot say that she having a suitable accommodation for her business, can insist for possession of the shop which is in possession of the tenant. In view of the above reasons, the finding of the courts below on issue' of personal bona fide necessity is absolutely perverse and contrary to reasonable and lawful reasons. The landlord cannot say that she having a suitable accommodation for her business, can insist for possession of the shop which is in possession of the tenant. In view of the above reasons, the finding of the courts below on issue' of personal bona fide necessity is absolutely perverse and contrary to reasonable and lawful reasons. The approach of both the courts below was wrong while deciding issue of personal bona fide necessity of the plaintiff. Therefore, the substantial question No. 2 is decided in favour of the appellant and it is held that the plaintiff had no need of the shop in dispute and if there was any need of the shop to the plaintiff, then, that could have been satisfied by the shop which she let out to her tenant in the month of June, 1992, i.e. during pendency of present suit. 20. The third and fourth substantial questions of law are in relation to the subletting of the suit premises by the defendant No. 1 to defendants No. 2 and 3. Even if the objection about the lack of pleadings in the plaint is ignored and it is presumed that the plaintiff's case was that the defendant No. 1 sublet the suit property to the defendants No. 2 and without the permission of the landlord, even then, the pleading and evidence of the plaintiff are very relevant. The plaintiff in her plaint did not disclose when the suit property was sublet by the defendant No. 1 to his own two brothers defendants No. 2 and 3. In relevant part of the very para No. 9 of the plaint, where the accrual of the cause of action has been shown by the plaintiff, it is mentioned that the rented premises was sublet by the defendant No. 1 to defendants No. 2 and 3 in the month of January, 1991. Contradicting her own pleadings, the plaintiff, in her examination-in-chief itself, admitted that defendants No. 2 and 3 told her that the defendant No. 1 let out the suit shop to the defendants No. 2 and 3, 15 years ago. Then that comes to the year, 1980. She also stated that the defendants No. 2 and 3 told this fact to the plaintiff about 6 to 7 years ago, then that period also comes to the year, 1988-89. Then that comes to the year, 1980. She also stated that the defendants No. 2 and 3 told this fact to the plaintiff about 6 to 7 years ago, then that period also comes to the year, 1988-89. In view of the above statement of the plaintiff herself, the defendant No. 1's two brothers were doing the business in the shop since the year 1980, whereas the suit was filed in the year, 1992. Coupled with this fact, pleadings become relevant that the plaintiff's own case was not that the defendant No. 1 sublet the plaintiff's premises to the defendants No. 2 and 3 his own brothers without the consent of the landlord. The plaintiff also in her statement did not state that the defendants No. 2 and 3 have been put in possession by the defendant No. 1, without the consent of the plaintiff landlord. Apart from the above; the plaintiff's own witness PW 2 very specifically stated in his cross-examination that defendant's son Devilal is not sitting in the shop in dispute but, in fact, the suit shop is in possession of defendant No. 1 Amritlal. In view of the above statement of the plaintiff's own witness PW 2, the statement of the defendant and his two brothers clearly shows that the defendant No. 1 never parted with the possession of the shop in dispute. The reasons given by the two courts below are based on absolutely erroneous reading from some statements of the defendants and his witness. The two courts below were of the view that since defendant stated that they are also residing in the shop in dispute and that fact cannot be believed because of the reason that the defendant's three brothers family cannot live in the property in dispute. At this place, the two courts below fell in error by ignoring the fact that the property in dispute which is described as shop was, in fact, used as hotel since the time of tenancy and, therefore, even the family members and particularly ladies could have been doing the preparation of the food in the hotel. But all the above facts were absolutely irrelevant in view of the fact that for proving subletting, the landlord is required to prove that the tenant sublet the suit without the permission of the landlord and further that the said sub-tenants are in exclusive possession of the rented premises. But all the above facts were absolutely irrelevant in view of the fact that for proving subletting, the landlord is required to prove that the tenant sublet the suit without the permission of the landlord and further that the said sub-tenants are in exclusive possession of the rented premises. In fact, the two courts below have not recorded any finding that the defendant No. 1 lost his possession or lost his right to possess the suit premises. This is admitted that the alleged sublettees are the real brothers of defendant No. 1 and are using and are in possession of the rented premises since more than 15 years in the knowledge of the plaintiff. Therefore, the two courts below based the finding on the question of subletting of the suit premises by the defendant No. 1 to defendants No. 2 and 3, by ignoring the evidence of the plaintiff herself and by not considering the statement of PW 2, the plaintiff's own witness, as well as the evidence of the defendant and his two brothers, as well as defendants' other witnesses. Therefore, the finding of the two courts below on the question of personal bona fide necessity and of the subletting of the suit shop by the defendant No. 1 to defendants No. 2 and 3 is contrary to the evidence on record. Further, it will be worthwhile to mention here that the plaintiff in her statement clearly stated that she is knowing the defendant No. 1 and his both the brothers the alleged sub-lettees and she further admitted that since last 15 years, the brothers of the defendants used to come to the plaintiff for payment of rent of the shop in dispute. In view of that fact and situation, in fact, no cause of action accrued to the plaintiff for filing the suit for eviction of the tenant on the ground of subletting in the year, 1992 or thereafter. In view of above reasons, the substantial questions of law Nos. 3 and 4 are also decided in favour of the appellants and it is held that the plaintiff failed to prove subletting bf the suit shop to the defendants No. 2 and 3. 21. Consequently, the appeal of the appellants is allowed. The judgments and decrees passed by the two courts below dated 31st January, 1998 and 26th March, 1996 respectively, are set aside. 21. Consequently, the appeal of the appellants is allowed. The judgments and decrees passed by the two courts below dated 31st January, 1998 and 26th March, 1996 respectively, are set aside. The suit of the plaintiff is dismissed.Appeal Allowed. *******