JUDGMENT : Being aggrieved by the judgment dated 12-5-2008 passed by II ADJ. Mandsaur in Civil Regular Appeal No. 69-A/2007 whereby judgment dated 31-10-2007 passed by Civil Judge Class-II, Mandsaur in Civil Suit No. 34-A/2005 whereby suit filed by the respondent for eviction under sections 12(1)(a), (b) and (f) of the M. P. Accommodation Control Act, 1961 (which shall be referred hereinafter as "Act") was dismissed was modified by passing the decree under section 12(1)(b) of the Act, present appeal has been filed. 2. Short facts of the case are that respondent filed a suit for eviction against the appellants on 22-2-2005 alleging that respondent is owner of suit shop situated at Kalidas Marg, in front of Maandasji Ka Bagh, Station Road, Mandsaur in which appellant No. 1 is tenant w.e.f. 1-11-1998 @ Rs. 300/- per month. It was alleged that appellant No. 1 inducted appellant No. 2 as sub-tenant and handed over possession of suit shop to the appellant No. 2. It was alleged that respondent requires the suit accommodation bona fidely. It was alleged that appellants has created nuisance. It was prayed that decree of eviction under section 12(1)(a) (b) and (f) of the Act be passed in favour of the respondent. The suit was contested by the appellants by filing the written statement. In the written statement filed by the appellants it was not disputed that status of the appellant No. 1 in the suit shop is as of tenant. It was denied that appellant No. 1 has inducted appellant No. 2 as sub-tenant. It was alleged that suit shop is in the occupation of appellant No. 1 wherein appellant No. 1 is carrying-on his ancestral business. It was prayed that suit be dismissed. After framing of issues and recording of evidence, learned trial Court dismissed the suit against which an appeal was filed which was allowed in part and decree under section 12(1) (b) of the Act was passed, hence this appeal. 3. Learned counsel for the appellants argued at length and submit that the impugned judgment passed by learned Appellate Court is illegal, incorrect and deserves to be set-aside. It is submitted that appellants has proved that appellant No. 1 is in occupation of the suit accommodation. 3. Learned counsel for the appellants argued at length and submit that the impugned judgment passed by learned Appellate Court is illegal, incorrect and deserves to be set-aside. It is submitted that appellants has proved that appellant No. 1 is in occupation of the suit accommodation. It is submitted that since burden of proof that the appellant No. 1 has transferred his possession and inducted appellant No. 2 as sub-tenant is on the respondent, therefore, there was no justification on the part of learned Appellate Court in passing the decree under section 12(1) (b) of the Act. It is submitted that findings given by learned trial Court in favour of the appellants which are based on due appreciation of evidence. Hence, there was no justification on the part of learned Appellate Court to disturb the same. Reliance is placed on a decision in the matter of M/s Delhi Stationers and Printers vs. Rajendra Kumar, AIR 1990 SC 1208 wherein Hon'ble Apex Court has observed that mere occupation by alleged sub-tenant is not sufficient to infer either sub-tenancy or parting with possession of rented premises by the tenant without permission of landlord. Further reliance is placed on a decision in the matter of Gopal Saran vs. Satyanarayan, AIR 1989 SC 1141 wherein tenant additionally carrying on business of putting up advertisement boards of customers on terrace of demised shop for which some amount also charged to customers, Hon'ble Apex Court held that since there were no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else, there was not any assignment or sub-letting or parting with possession, hence decree under section 12(1)(b) of the Act was refused. 4. On the strength of aforesaid position of law learned counsel for the appellants submit that since in the present case respondent has not proved that appellant No. 1 has transferred his possession, therefore, no decree could have been passed against the appellants. It is submitted that appeal be allowed and the impugned judgment passed by learned Appellate Court be set aside. 5. Learned counsel for the respondent submits that after due appreciation of evidence on record learned Appellate Court has allowed the appeal filed by the respondent in part and passed decree under section 12(1)(b) of the Act which requires no interference. It is submitted that appeal be allowed and the impugned judgment passed by learned Appellate Court be set aside. 5. Learned counsel for the respondent submits that after due appreciation of evidence on record learned Appellate Court has allowed the appeal filed by the respondent in part and passed decree under section 12(1)(b) of the Act which requires no interference. It is submitted that the burden of proof was on the respondent to prove that the appellant No. 1 has transferred the possession and inducted the appellant No. 2. It is submitted that thereafter burden shifts on the appellant No. 1 to prove in what capacity appellant No. 2 is in occupation of the suit accommodation. It is submitted that respondent has discharged his burden by adduicing evidence that appellant No. 2 is in occupation of the suit accommodation. It is submitted that appellant No. 2 has admitted that appellant No. 2 is in occupation of the suit accommodation and is carrying-on the business. It is submitted that it is true that appellant No. 2 is brother of appellant No. 1 but even if the brother has been inducted as sub-tenant, respondent is entitled for decree of eviction. Learned counsel placed reliance on a decision in the matter of Nandlal and anr. vs. Hukum Chand, 1980 MPRCJ 265 wherein shop rented out to son occupied by the father, this Court held that son has parted with the possession of the whole of the accommodation and decree of eviction was granted under section 12(1)(b) of the Act. Reliance is placed on a decision in the matter of Babu lal vs. Bilasi Bai, 1998 MPACJ 151 wherein tenant left the tenanted accommodation and parted with the possession of the tenanted accommodation in favour of son, this Court held that tenant is liable to be evicted. Reliance is also placed on a decision in the matter of Javerilal vs. Mahendra Kumar, 2008 (II) MPACJ 261 wherein tenancy was in the name of husband and wife is running the business in the suit shop, this Court held that ground of sub-tenancy is made out. Reliance is placed on a decision in the matter of Sunil vs. Smt. Vimlabai, 2007(2) MPLJ 438 = 2007(2) JLJ 432 wherein this Court held that brother is not member of family and if the possession is given to the brother, then, his status is of sub-tenant. Reliance is placed on a decision in the matter of Sunil vs. Smt. Vimlabai, 2007(2) MPLJ 438 = 2007(2) JLJ 432 wherein this Court held that brother is not member of family and if the possession is given to the brother, then, his status is of sub-tenant. Reliance is placed on a decision in the matter of Bhawarlal Guman Singh vs. Ratanlal Lahoti, 1985 MPLJ 379 wherein this Court has held that initial burden is on the landlord to prove the sub­tenancy and burden prima facie discharged by landlord, onus shifts on the tenant. Reliance is placed on a decision in the matter of ArifHusain vs. Kamlabai, 1997 MPACJ 128 wherein this Court has held that if the occupation of the part of the accommodation let out is admittedly by a third person, it is for the tenant to prove that the person was not his sub-tenant but was inducted by the original landlord. Further reliance is placed on a decision in the matter of Kishanchand vs. Ramkrishna, 1993 MPLJ 655 = 1991 JLJ 636 wherein this Court has held that even a brother can be a sub-tenant, mere relationship without more will not detract the mischief contemplated under this provision. 6. Learned counsel for the respondent submits that to prove the sub­tenancy it is difficult for the landlord to adduce direct evidence. It is submitted that burden was on the appellant No. 1 to prove that in what capacity appellant No. 2 is in occupation in the suit accommodation. For this contention again reliance is placed on a decision in the matter of Bhanwarlal vs. Ratanlal, 1985 MPLJ 379 = 1986 JLJ 780 wherein this Court has held that sub-tenancy can be inferred from circumstances proved, direct evidence hardly available. Reliance is also placed on a decision in the matter of Indore Transport Co. vs. Firm Saify Iron & Eng. Works, 1984 MPWN SN 507 wherein this Court has observed that finding of sub-letting is binding in second appeal. On the strength of aforesaid position of law, learned counsel for the respondent submits that in the facts and circumstances of the case learned Appellate Court rightly allowed the appeal filed by the respondent and set-aside the judgment passed by learned trial Court. Learned counsel submits that, appeal filed by the appellants be dismissed. 7. On the strength of aforesaid position of law, learned counsel for the respondent submits that in the facts and circumstances of the case learned Appellate Court rightly allowed the appeal filed by the respondent and set-aside the judgment passed by learned trial Court. Learned counsel submits that, appeal filed by the appellants be dismissed. 7. From perusal of record, it appears that to prove the case respondent has filed the documents which are Ex.P/1 to P/12. Ex.P/1 and P/2 are the receipts wherein name of appellant No. 1 has shown as tenant. Ex.P/3 to P/6 are the photo print and negatives. Ex.P/7 to P/9 are the notices and acknowledgement. Ex.P/10 to P/12 are the record of Municipal Corporation, Mandsaur which shows that appellants No. 1 and 2 are having separate houses. Apart from this, respondent has examined himself as PW/1 and Madanlal PW/2 while appellants has examined appellant No. 1 as DW/1 and appellant No. 2 as DW/2. 8. From perusal of the record it is evident that while decreeing the suit learned Appellate Court has observed that Purushottam DW/1 who is appellant No. 1 herein has stated that the license of both the shops are separate, while appellant No. 2 Rameshchandra alleged sub-tenant has stated that the registration of sales tax of both the shops is one and the same. No registration certificate was produced by the appellants before the Court. Learned Appellate Court also found that both the brothers who are appellants are living separately. Apart from this, there are number of other reasons, such as no books of account of the suit shop was filed to demonstrate that the account was being maintained by the appellant No. 1. Shop is also required to be registered under the Shop and Establishments Act. The document could have been produced by the appellants to prove that the suit shop is registered in the name of appellant No. 1. Appellants also failed to prove that what job is being done by appellant No. 2 to negative the claim of the respondent on the ground of sub-tenancy. It is settled position of law that initial burden is on the landlord to prove the sub-tenancy as it is secret arrangement between tenant and sub-tenant and then the burden shifts on the tenant to disprove that the suit accommodation is not sub-let. It is settled position of law that initial burden is on the landlord to prove the sub-tenancy as it is secret arrangement between tenant and sub-tenant and then the burden shifts on the tenant to disprove that the suit accommodation is not sub-let. In the facts and circumstances of the case, this Court is of the opinion that the learned Appellate Court committed no error in allowing the appeal and dismissing the judgment passed by the learned trial Court in granting the decree under section 12(1)(b) of the Act. In view of this, appeal filed by the appellants has no merits and the same stands dismissed. 9. Since in consequence the appellants have to vacate the suit accommodation, therefore, to save the appellants from peril of eviction, it is made clear that the order of eviction shall not be executed on or before 31-12-2011 on the condition that the appellants herein file an undertaking before the learned trial Court within six weeks to the following effect namely :- 1. that the appellants herein shall not induct any other person in the suit premises and shall hand-over vacant and peaceful possession of the said premises to the respondent/landlord on or before the 31-12-2011. 2. that the appellants herein shall pay to the respondent/landlord arrears of rent, if any, within one month from today and shall pay to the respondent/landlord future compensation for use and occupation of the suit premises month by month before the 10th day of every month. With the aforesaid observations, appeal stands disposed of. No order as to costs. Order accordingly.