Judgment Heard learned counsel appearing for the petitioners. The petitioners are the defendants and the respondent is the plaintiff. The suit premises is one room admeasuring 10 feet x 5.5 feet situated at Navi Peth Pune. Suit for eviction was filed by the respondent under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (Hereinafter referred to as "the said Act of 1947") on various grounds. It was alleged that the suit premises was let out to the first petitioner for the purpose of tailoring business. It was alleged that the first respondent secured business premises at Shirwal and shifted there with the sewing machines. It is alleged that while shifting, the first petitioner inducted second petitioner in the suit premises. It is alleged that first petitioner has sublet the suit premises to the second petitioner and that the second petitioner has changed the user of the suit premises by using the suit premises for the purpose of residence. 2. The petitioners filed a common Written Statement. The petitioners denied that first petitioner shifted to Shirval along with his business. It is alleged that the petitioners are real brothers and along with their brother Rajendra, they have taken the suit premises on rent for the composite purpose of business of the joint family and for residence. It was alleged that the petitioners along with their brother Rajendra were carrying on business in the suit premises. 3. The Trial Court proceeded to pass a decree for possession on the ground of change of user and subletting. The decree passed by the Trial Court has been confirmed in the appeal by the District Court. 4. First submission of the learned counsel appearing for the petitioners is that the specific case of the petitioners is that the petitioners along with their brother Rajendra had taken suit premises on rent for the composite purpose of business of the joint family and for residence. He submitted that the respondent admitted in the cross-examination that both the petitioners and their brother Rajendra were carrying on tailoring business in the suit premises and they used to work on sewing machines. He submitted that the contention of the respondent that only first petitioner who was the tenant must fail on the basis of the said admission. He submitted that none of the ingredients of subletting have been proved. He submitted that the contention of the respondent that only first petitioner who was the tenant must fail on the basis of the said admission. He submitted that none of the ingredients of subletting have been proved. He submitted that, in any case, as the case of the petitioners that both of them along with their brother Rajendra were carrying on business in the suit premises is accepted by the respondent, the contention that first petitioner parted with the exclusive possession of the suit premises to the second petitioner cannot be accepted. He submitted that on admitted facts, the allegations of sub-letting could not have been accepted by the Courts below. 5. He submitted that evidence on record shows that the purpose of letting was a composite purpose of business and residence and that the evidence of the second petitioner shows that user for both purposes was continued. He submitted that the respondent has not discharged burden on him. He relies upon the decision of this Court in the case of Balwant Datye & others Vs. Vasudev Shripad and others (1986 Bom. Rent Cases 1). He submitted that the decree can be passed only on the basis of complete nonuser and not on the ground of change of user. 6. First point for consideration is as regards the purpose of letting. The case made out in the plaint is that the suit premises was let out for carrying on tailoring business. The averment made in paragraph 2 of the plaint that the suit premises was taken on rent by the first petitioner from the respondent/ plaintiff for carrying on tailoring business has been specifically admitted in paragraph 7 of the joint Written Statement of the petitioners. After admitting said averment, the petitioners have not clarified that the purpose of letting was composite. Only in paragraph 10 of the Written Statement, a contention is raised by the petitioners that the suit premises was taken on rent for joint family business and for residence. In paragraph 7 of the Written Statement, the petitioners admitted that the purpose of letting was of carrying on tailoring business. In the cross-examination of the respondent, a suggestion was given that the suit premises was let out for the composite purpose. The correctness of the suggestion was denied. It will be necessary to make a reference to the examination-in-chief of the second petitioner. In the cross-examination of the respondent, a suggestion was given that the suit premises was let out for the composite purpose. The correctness of the suggestion was denied. It will be necessary to make a reference to the examination-in-chief of the second petitioner. First petitioner did not step in to the witness box. In first paragraph of the examination-in-chief, second petitioner stated that the first petitioner had taken the suit premises on rent about 20 years back. He stated that he after taking the suit premises on rent, he along with first petitioner and their brother started tailoring business therein. Further categorical statement is that when they started tailoring business in the suit premises, they were residing in Kasba Peth, Pune. He further stated that for a period of last 10 years, he has started residing in the suit premises and that the respondent never objected to his residence in the suit premises. He stated that rent was being accepted by the respondent from his wife. These are the assertions in first paragraph of the deposition. In second paragraph of the deposition, he denied that he was occupying suit premises as a subtenant and he denied that suit premises was let out only for the purpose of business. There is not even an assertion that the suit premises was let out for composite purpose of the business and residence. On the contrary, it is his specific case that on taking the suit premises on rent, the brothers started business in the suit premises and at that time they were residing elsewhere. In first paragraph of the examination-in-chief second petitioner admitted that he was residing in the suit premises for last 10 years, but in second paragraph of the examination-in-chief he stated that during the said period of ten years he was also carrying on his business. Thus in view of the admission in paragraph 7 of the Written Statement and in view of failure of the second petitioner to depose that the purpose of letting was composite, the Courts below were right in proceeding to held that purpose of letting was of carrying on tailoring business. 7. It is not the case of the second petitioner that during the said period of 10 years when he started residing in the suit premises, the first petitioner and the other brother were carrying on business in the suit premises. 7. It is not the case of the second petitioner that during the said period of 10 years when he started residing in the suit premises, the first petitioner and the other brother were carrying on business in the suit premises. It is his specific case that he was residing in the suit premises for a period of 10 years. In the cross-examination, he admitted that prior to the year 1978, he did not obtain a licence from the Municipal Corporation for carrying on business. There is no documentary evidence produced by the second petitioner to show that he was carrying on business in the suit premises. Therefore, there is no difficulty in accepting the correctness of the finding of the Courts below that the suit premises which was let out for the purpose of business was used exclusively for the purpose of residence. Therefore, what is brought on record is that the suit premises was being used for a period of ten years only for the purpose of residence. Therefore, it is established that prior to the institution of the suit, for a period of ten years, the suit premises was not used for a purpose for which it was let out and that it was used for some other purpose. Thus, the Petitioners committed the acts contrary to clause (O) of Section 108 of the Transfer of Property Act, 1882 which is a ground of eviction incorporated in clause (a) of Section 13(1) of the said Act of 1947. The decision of this Court relied upon by the Petitioners in case of Balwant Datye (supra) holds that the ground of non-user in clause (k) of sub-section 1 of Section 13 of the said Act of 1947 is available only in the case of complete non-user. Therefore, there is no scope to interfere with the decree passed by the Courts below under clause (a) of Section 13(1) on the ground of change of user. 8. As far as allegation regarding creation of sub-tenancy is concerned, there may be some merit in the contention raised by the petitioners. It is not in dispute that the petitioners/original defendants are real brothers. There is material on record to show that initially both of them were carrying on tailoring business in the suit premises. 8. As far as allegation regarding creation of sub-tenancy is concerned, there may be some merit in the contention raised by the petitioners. It is not in dispute that the petitioners/original defendants are real brothers. There is material on record to show that initially both of them were carrying on tailoring business in the suit premises. The evidence on record shows that even from the date of inception of the tenancy, both the brothers were carrying on tailoring business in the suit premises. The evidence which is brought on record is that the first petitioner started the business elsewhere and the second petitioner starting residing in the suit premises without carrying on any business therein. Therefore, it cannot be said that the possession of the second petitioner in the suit premises was not explained or that there is any transfer of interest by the first petitioner to the second petitioner. 9. However, the ultimate decree for possession passed by the Courts below will have to be confirmed on the ground of change of user. 10. Hence, I pass the following order: (i) The Petition is rejected. (ii) Rule is discharged with no order as to costs. (iii) At this stage, the learned counsel appearing for the petitioner states that the petitioners are willing to vacate the suit premises and, therefore, time of one year be granted to vacate the suit premises subject to filing undertakings. Hence, it is directed that notwithstanding the dismissal of the Writ petition, the decree for possession shall not be executed till 19th January, 2013 subject to condition of the petitioner and all the adult members of their family filing usual undertakings in this Court within a period of six weeks from today. If the undertakings are not filed within the stipulated period, the decree for possession shall forthwith become executable.