Judgment N.K.Mody, J. ( 1. ) Being aggrieved by the judgment dated 1.9.2001 passed by Additional District Judge, Indore in Civil Appeal No.21/2001 whereby the judgment dated 14.2.2001 passed by VIIth Civil Judge Class I, Indore in Civil Suit No. 12-A/99, whereby the suit filed by the respondents No. 1 to 8 was allowed and a decree of eviction was passed against respondent No.9 and appellant, which was maintained, the present appeal has been filed. ( 2. ) The appeal was admitted for final hearing by this Court vide order dated 17.7.2003 on the following substantial questions of law;- "(1)Whether lower appellate Court was justified in confirming the decree under Section 12(l)(b) of the M.P.Accommodation Control Act ? (2) Whether a ground under Section 12(l)(b) namely subletting by Mangilal to Kantilal-defendant No.1 to defendant No.2 is made out within the meaning of Section 12(1)(b) of the Act ? (3) In view of notice served on the defendants Ex.D/2-C and D/3-C dated 8.8.79 and 21.8.75 respectively, can it be held that even assuming there existed a sub-tenancy, the same was condoned by acquiescence by plaintiff because of filing a suit almost after twelve years from the date of these notices ? (4) Whether in view of peculiar relationship between defendant No.1 and defendant No.2 i.e.Nephew and Uncle, a finding of sub-letting is sustainable ?" ( 3. ) Short facts of the case are that the predecessor-in-title of respondents No. 1 to 7 Shankarlal Joshi filed a suit for eviction against the appellant and respondent No.8 on 23.12.87 for eviction alleging that respondent No.8 is the tenant in the suit accommodation situated at 5, Kanoongo Bakhal, Indore @ Rs.120/- per month. It was alleged that tenancy of respondent No.8 was for non-residential purposes. It was alleged that respondent No.8 has removed the possession and has inducted the appellant as sub-tenant in the suit accommodation for carrying on the business in the name and style of M/s K.P.Bottles. It was alleged that respondent No.8 is carrying on his business at Vrindavan Colony, Indore in the name and style of M/s Paras Bottle Agency. It was further alleged that status of the appellant in the suit accommodation is of sub-tenant. Further case of the predecessor-in-title of respondents No.1 to 7 was that the respondent No.8 is in arrears of rent w.e.f. 1.1.1985, which was not paid inspite of service of demand notice. It was further alleged that status of the appellant in the suit accommodation is of sub-tenant. Further case of the predecessor-in-title of respondents No.1 to 7 was that the respondent No.8 is in arrears of rent w.e.f. 1.1.1985, which was not paid inspite of service of demand notice. On the basis of these pleadings it was prayed that the suit filed by the predecessor-in-title of respondents No.1 to 7 be allowed and decree of eviction be passed against the respondent No.8 and appellant. ( 4. ) The suit was contested by the respondent No.8 and the appellant by filing a joint written statement, wherein the plaint allegations were denied. It was also denied that respondent No.8 is in arrears of rent. It was also denied that appellant is sub-tenant in the suit accommodation. It was alleged that the family of respondent No.8 and the appellant was undivided joint Hindu family and the business which was being carried in the name of K.P.Bottles is of the partnership firm of the family. It was alleged that appellant was never treated as sub-tenant. The rent was being paid by the appellant, which was duly accepted by the predecessor-in- title of respondents No. 1 to 7. It was prayed that suit filed by the predecessor-in-title of respondents No.1 to 7 be dismissed. ( 5. ) After framing of issues and recording of evidence suit filed by the respondents No.1 to 7 was allowed in part by passing a decree under Section 12(l)(b) of the Act. It was also found that ground under Section 12(l)(a) of the Act was made out but by giving protection of Section 12(3) of the Act no decree of eviction was passed under Section 12(l)(a) of the Act Being aggrieved by the, judgment passed by the learned trial Court an appeal was filed by the appellant but the same was dismissed, hence this appeal. ( 6. ) Shri S. M. Dagaonkar, learned counsel for the appellant argued at length and submits that judgment passed by the learned Courts below is illegal and deserves to be set aside. Learned counsel submits that learned Courts below committed error in not taking into consideration the material piece of the evidence, which is the demand notice dated 08/08/1979 Ex.D/2. ) Shri S. M. Dagaonkar, learned counsel for the appellant argued at length and submits that judgment passed by the learned Courts below is illegal and deserves to be set aside. Learned counsel submits that learned Courts below committed error in not taking into consideration the material piece of the evidence, which is the demand notice dated 08/08/1979 Ex.D/2. It is submitted that the said notice was issued to respondent No.8 through the appellant and in which respondent No.8 was asked to disclose the name of sub-tenant. In the notice issued by the predecessor-in-title of respondent No. 1 to 7 it was nowhere stated that the appellant is sub-tenant, while the notice was sent to respondent No.8 through appellant. Learned counsel submits that rent was also accepted from the appellant after the notice Ex.D/2 for years together from time-to-time, which goes to show that appellant was never treated as sub-tenant. Learned counsel submits that alleged notice Ex.D/2 is of the year 1979, while the suit was filed in the year 1987 after a long period of 12 years. Learned counsel further submits that the tenancy of the appellant and respondent No.8 was not oral as the predecessor-in-title of respondents No. 1 to 7 have admitted in cross-examination that the rent note was executed by the respondent No.8 and the rent note is in possession of predecessor- in-title of respondents No. 1 to 7. It is submitted that the best documentary evidence was available with the respondents No. 1 to 7 but the same was not filed for the best reasons known to the respondents No. 1 to 7. It is submitted that in the facts and circumstances of the case without taking into consideration the material evidence the learned Courts below committed error in passing a decree of eviction against the appellant. It is submitted that the findings recorded by the learned Courts below are perverse and deserves to be set aside. Learned counsel for the appellant submits that since material evidence has not been taken into consideration, therefore, in second appeal interference is permissible. For this contention reliance is placed on a decision of this Court in the matter of Ibrahim Vs. Abdul Jabbar JLJ 1993 654 wherein this Court has held that interference in second appeal is permissible when material evidence is not considered and view taken is not reasonable and correct principles of law not applied. For this contention reliance is placed on a decision of this Court in the matter of Ibrahim Vs. Abdul Jabbar JLJ 1993 654 wherein this Court has held that interference in second appeal is permissible when material evidence is not considered and view taken is not reasonable and correct principles of law not applied. Reliance is also placed on a decision in the matter of Kashmir Singh Vs. Harnam Singh AIR 2008 SC 1749 wherein the Honble Apex Court has held that the general rule is that High Court will not interfere with concurrent findings of the Courts below but it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence, (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously or (iii) the Courts have wrongly cast the burden of proof. It was further observed that the Decision based on no evidence, not only means cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings. So far as sub-tenancy is concerned, reliance is placed on a decision in the matter of Smt. Nirmal Kanta (D) by L.Rs. Vs. Ashok Kumar AIR 2008 SC 1768 wherein the suit was filed by on account of creation of sub-tenancy alleging that the tenant allowed respondent, alleged sub-tenant to sit, fix and operate sewing machine inside tenanted shop room and evidence showing that respondent was assisting tenant in his cloth business by helping customer to assess amount of cloth required for their particular purposes, the Honble Apex Court held that tenant thus had not parted with exclusive possession of tenanted premises, their creation of sub-tenancy and/or grant of sub-lease cannot be said to be established. It was further observed that the sub-tenancy given at best be said to be licensee. ( 7. ) On the strength of aforesaid position of law and in the facts and circumstances of the case, learned counsel for the appellant submits that the appeal filed by the appellant be allowed and the impugned judgment passed by learned Courts below be set-aside. ( 8. ( 7. ) On the strength of aforesaid position of law and in the facts and circumstances of the case, learned counsel for the appellant submits that the appeal filed by the appellant be allowed and the impugned judgment passed by learned Courts below be set-aside. ( 8. ) Shri S.M.Sanyal, learned counsel for the respondents No.1 to 7 submits that no illegality has been committed by the learned Courts below in passing a decree against the appellant and respondent No.8. Learned counsel submits that the original tenant is respondent No.8, who has not preferred any appeal against the judgment passed by the learned trial Court as well as by the learned appellate Court. It is submitted that the suit is based on the demand notice dated 25.7.87 Ex.P/1. It is submitted that even if it is assumed that tenancy was in writing and the rent note has not been filed, then too, no adverse inference can be drawn against the respondents No.1 to 7. It is submitted that all the allegations were made against the respondent No.8 and inspite of that respondent No.8 did not appear in witness box. In the facts and circumstances of the case learned Courts below has rightly passed the decree under Section 12(1)(b) of the act. Learned counsel submits that since both the Courts below have found that status of the appellant in the suit accommodation is of sub-tenant and findings recorded by learned Courts below are the concurrent findings of fact, therefore, the same cannot be interfered in second appeal. For this contention reliance is placed on a decision in the matter of Shyam Kant Nigam Vs. Nawab Ahmad Yar Jahangeer Khan 2007 (II) MPWN 90 wherein this Court has held that in a suit for eviction on the ground of sub-tenancy pure finding of facts based on appreciation of evidence cannot be assailed in second appeal. Reliance is also placed on a decision in the matter of Madanlal Vs. Mittubai 1983 MPWN note 36 wherein this Court has held that finding of facts recorded by appellate Court based on appreciation of evidence which do not suffer from infirmity are binding on this Court in second appeal. Reliance is also placed on a decision in the matter of Shyam Sunder Chowdhury Vs. Mittubai 1983 MPWN note 36 wherein this Court has held that finding of facts recorded by appellate Court based on appreciation of evidence which do not suffer from infirmity are binding on this Court in second appeal. Reliance is also placed on a decision in the matter of Shyam Sunder Chowdhury Vs. N. C. Batabyal 1999 (1) AIRCJ 30 wherein in an eviction petition on the ground of sub-letting Calcutta High Court held that concurrent finding of facts that there was subletting by Courts below, High Court in second appeal not to interfere. Reliance is also placed on a decision of Honble Apex Court in the matter of O.T.M.O.M. Meyyappa Chettiar Vs. O.T.M.S.M. Kasi Vishwanathan Chettiar 1994 (I) MPWN SN 94 wherein Honble Apex Court has observed that High Court is not entitled to re-appraise evidence by merely saying that findings recorded by Court below are perverse. ( 9. ) So far as status of appellant in the suit accommodation as sub-tenant is concerned, learned counsel submits that both the Courts below found that respondent No.8 has no control over the suit accommodation and it is appellant who is in occupation of the suit accommodation. For this contention reliance is placed on a decision in the matter of Vaishakhi Ram Vs. Sanjeev Kumar Bhatiani 2008 (II) M.P.A.C.J. 1 wherein it was found that tenant has no legal control over the suit shop and sub-tenants were in exclusive possession of suit shop and were carrying on a different independent business in the suit shop, Honble Apex Court held that eviction of tenant is justified. Learned counsel submits that it is true that rent was accepted by predecessor-in-title of respondents No.1 to 7 from the appellant but that acceptance of rent was on behalf of the respondent No.8. It is submitted that even if, it is assumed that rent was accepted by predecessor-in-title of respondents No. 1 to 7 from the appellant, then too, it is not waived the rights of respondents No. 1 to 7 to evict on the ground of sub-tenancy. For this contention reliance is placed on a decision in the matter of Tek Chand Vs. For this contention reliance is placed on a decision in the matter of Tek Chand Vs. Bali Ram All India Rent Control Journal 1995 (II) wherein Punjab and Haryana High Court held that acceptance of rent continuously for 18 years from subtenant, does not amounts to waiver of right of landlord to get the suit accommodation vacated on the ground of sub-letting. It was further observed that it cannot take the place of consent in writing of landlord. Learned counsel submits that on the basis of arguments advanced by counsel for the appellant it goes to show that status of the appellant in the suit accommodation is of sub-tenant only. It is submitted that appellant is not the member of family under Section 2 (e) of the Act. For this contention reliance is placed on a decision in the matter of Sunil Vs. Smt. Vimlabai 2007 (2) JLJ 432 wherein this Court has held that brother of tenant is not a family member. It is submitted that it is difficult to prove the sub-tenancy by direct evidence as the landlord is kept out of scene. Reliance is also placed on a decision in the matter of Shyam Kant Nigam Vs. Nawab Ahmad Yar Jahangeer Khan 2007 (II) MPWN 90 wherein this Court held that negative burden is on tenant, landlord not required to prove payment of consideration. Reliance is also placed on a decision of Honble Apex Court in the matter Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) by L.Rs. 1998 (2) AIRCJ 305 wherein the premises let out to a tenant who carried on business as sole proprietor and converted business into partnership with his sons and subsequently the tenant was retired and sons carried on business in same premises while rent was being paid by the partnership firm of sons and the rent receipts were issued in favour of tenant, Honble Apex Court has held that facts do not show that tenant could exercise his power throughout suit premises at his pleasure. It was also observed that in fact he did not continue to exercise control over premises. It was also held that occasional visit by tenant to premises does not amount to exercising rights over premises. It was also observed that in fact he did not continue to exercise control over premises. It was also held that occasional visit by tenant to premises does not amount to exercising rights over premises. It was also held that tenant completely divested himself of premises as well as business and there is nothing on record to support plea that tenant had taken premises on lease for benefit of family, therefore, act of the tenant amounted to unlawful sub- letting and landlord entitled to eviction. On the strength of aforesaid position of law and in the facts and circumstances of the case, it was prayed that the appeal be dismissed. idence by merely saying that findings recorded by Court below are perverse. ( 9. ) So far as status of appellant in the suit accommodation as sub-tenant is concerned, learned counsel submits that both the Courts below found that respondent No.8 has no control over the suit accommodation and it is appellant who is in occupation of the suit accommodation. For this contention reliance is placed on a decision in the matter of Vaishakhi Ram Vs. Sanjeev Kumar Bhatiani 2008 (II) M.P.A.C.J. 1 wherein it was found that tenant has no legal control over the suit shop and sub-tenants were in exclusive possession of suit shop and were carrying on a different independent business in the suit shop, Honble Apex Court held that eviction of tenant is justified. Learned counsel submits that it is true that rent was accepted by predecessor-in-title of respondents No.1 to 7 from the appellant but that acceptance of rent was on behalf of the respondent No.8. It is submitted that even if, it is assumed that rent was accepted by predecessor-in-title of respondents No. 1 to 7 from the appellant, then too, it is not waived the rights of respondents No. 1 to 7 to evict on the ground of sub-tenancy. For this contention reliance is placed on a decision in the matter of Tek Chand Vs. Bali Ram All India Rent Control Journal 1995 (II) wherein Punjab and Haryana High Court held that acceptance of rent continuously for 18 years from subtenant, does not amounts to waiver of right of landlord to get the suit accommodation vacated on the ground of sub-letting. It was further observed that it cannot take the place of consent in writing of landlord. It was further observed that it cannot take the place of consent in writing of landlord. Learned counsel submits that on the basis of arguments advanced by counsel for the appellant it goes to show that status of the appellant in the suit accommodation is of sub-tenant only. It is submitted that appellant is not the member of family under Section 2 (e) of the Act. For this contention reliance is placed on a decision in the matter of Sunil Vs. Smt. Vimlabai 2007 (2) JLJ 432 wherein this Court has held that brother of tenant is not a family member. It is submitted that it is difficult to prove the sub-tenancy by direct evidence as the landlord is kept out of scene. Reliance is also placed on a decision in the matter of Shyam Kant Nigam Vs. Nawab Ahmad Yar Jahangeer Khan 2007 (II) MPWN 90 wherein this Court held that negative burden is on tenant, landlord not required to prove payment of consideration. Reliance is also placed on a decision of Honble Apex Court in the matter Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) by L.Rs. 1998 (2) AIRCJ 305 wherein the premises let out to a tenant who carried on business as sole proprietor and converted business into partnership with his sons and subsequently the tenant was retired and sons carried on business in same premises while rent was being paid by the partnership firm of sons and the rent receipts were issued in favour of tenant, Honble Apex Court has held that facts do not show that tenant could exercise his power throughout suit premises at his pleasure. It was also observed that in fact he did not continue to exercise control over premises. It was also held that occasional visit by tenant to premises does not amount to exercising rights over premises. It was also held that tenant completely divested himself of premises as well as business and there is nothing on record to support plea that tenant had taken premises on lease for benefit of family, therefore, act of the tenant amounted to unlawful sub- letting and landlord entitled to eviction. On the strength of aforesaid position of law and in the facts and circumstances of the case, it was prayed that the appeal be dismissed. t business in the suit shop, Honble Apex Court held that eviction of tenant is justified. On the strength of aforesaid position of law and in the facts and circumstances of the case, it was prayed that the appeal be dismissed. t business in the suit shop, Honble Apex Court held that eviction of tenant is justified. Learned counsel submits that it is true that rent was accepted by predecessor-in-title of respondents No.1 to 7 from the appellant but that acceptance of rent was on behalf of the respondent No.8. It is submitted that even if, it is assumed that rent was accepted by predecessor-in-title of respondents No. 1 to 7 from the appellant, then too, it is not waived the rights of respondents No. 1 to 7 to evict on the ground of sub-tenancy. For this contention reliance is placed on a decision in the matter of Tek Chand Vs. Bali Ram All India Rent Control Journal 1995 (II) wherein Punjab and Haryana High Court held that acceptance of rent continuously for 18 years from subtenant, does not amounts to waiver of right of landlord to get the suit accommodation vacated on the ground of sub-letting. It was further observed that it cannot take the place of consent in writing of landlord. Learned counsel submits that on the basis of arguments advanced by counsel for the appellant it goes to show that status of the appellant in the suit accommodation is of sub-tenant only. It is submitted that appellant is not the member of family under Section 2 (e) of the Act. For this contention reliance is placed on a decision in the matter of Sunil Vs. Smt. Vimlabai 2007 (2) JLJ 432 wherein this Court has held that brother of tenant is not a family member. It is submitted that it is difficult to prove the sub-tenancy by direct evidence as the landlord is kept out of scene. Reliance is also placed on a decision in the matter of Shyam Kant Nigam Vs. Nawab Ahmad Yar Jahangeer Khan 2007 (II) MPWN 90 wherein this Court held that negative burden is on tenant, landlord not required to prove payment of consideration. Reliance is also placed on a decision of Honble Apex Court in the matter Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) by L.Rs. Nawab Ahmad Yar Jahangeer Khan 2007 (II) MPWN 90 wherein this Court held that negative burden is on tenant, landlord not required to prove payment of consideration. Reliance is also placed on a decision of Honble Apex Court in the matter Mohammedkasam Haji Gulambhai Vs. Bakerali Fatehali (D) by L.Rs. 1998 (2) AIRCJ 305 wherein the premises let out to a tenant who carried on business as sole proprietor and converted business into partnership with his sons and subsequently the tenant was retired and sons carried on business in same premises while rent was being paid by the partnership firm of sons and the rent receipts were issued in favour of tenant, Honble Apex Court has held that facts do not show that tenant could exercise his power throughout suit premises at his pleasure. It was also observed that in fact he did not continue to exercise control over premises. It was also held that occasional visit by tenant to premises does not amount to exercising rights over premises. It was also held that tenant completely divested himself of premises as well as business and there is nothing on record to support plea that tenant had taken premises on lease for benefit of family, therefore, act of the tenant amounted to unlawful sub- letting and landlord entitled to eviction. On the strength of aforesaid position of law and in the facts and circumstances of the case, it was prayed that the appeal be dismissed. ( 10. ) Keeping in view the aforesaid position of law and after re-appreciating the evidence, this Court finds that due to following reasons no interference is called for :- (i) It is true that Shankerlal/landlord predecessor-in-title of respondents No. 1 to 7 has admitted in his evidence that rent-note was executed at the time of induction of respondent No.8 and same has not been filed by the respondents No. 1 to 7 but appellant is not entitled for any advantage of it because it was not the case of the appellant that in the rent-note appellant was also shown as tenant or rent-note was executed by respondent No.8 for the business of family. (ii) Even otherwise on account of failure on the part of respondents No. 1 to 7 in filing the rent-note no advantage can be given to the appellant as the respondent No.8 did not choose to appear in witness-box to submit that the rent-note was executed by him for the business of family or appellant was also shown as tenant. (iii) In the evidence it has come that appellant and respondent No.8 are living separately and respondent No.8 is carrying on his business alongwith his sons separately while business of the appellant is separate. (iv) No documentary evidence has been produced by the appellant to prove that business which is being carried out by the appellant is the business of Undivided Joint Hindu Family which includes the respondent No.8. The documentary evidence which has been produced by the appellant and also by respondents No. 1 to 7 goes to show that rent was paid by the appellant on behalf of respondent No.8. (v) It is true that in the notice Ex.D/2 which was issued by the deceased/Shankerlal Joshi to respondent No.8, it Is mentioned that respondent No.8 has removed his possession from the suit accommodation and business of M/s K.P. Bottles and M/s Prakash Company are being carried out which are not the firms of respondent No.8 and in the said notice respondent No.8 was asked to disclose the name of sub-tenant. In the said notice name of appellant was not alleged as sub-tenant and the notice was also sent to respondent No.8 through appellant, and thereafter for a considerable time the rent was accepted from appellant but on the basis of this it cannot be said that status of appellant in the suit accommodation is of tenant. ( 11. ) This Court is of the opinion that the learned Courts below were justified in decreeing the suit under Section 12 (1) (b) of the Act against the respondent No.8 and also against appellant and on the basis of Ex.D/2 and D/3 dated 08/08/1979 and 15/05/197S it cannot be said that sub-tenancy was condoned by predecessor- in-title of respondents No. 1 to 7 because of filing of the suit after a long period of 12 years. In view of this, the appeal has no force and is hereby dismissed. No order as to costs. Appeal dismissed.