JUDGMENT 1. The appellant defendant has filed the present appeal being aggrieved by the judgment and decree dated 17.2.2007, passed by the 17th Additional District Judge (Fast Track), Indore (M.P.) in Civil First Appeal No.10/2006, whereby the judgment and decree dated 30.7.2005, passed by the 9th Civil Judge Class II, Indore in COS. No.131-A/04, dismissing the suit has been reversed and decreed under section 12(1) (b) of the M.P. Accommodation Control Act, 1961 (hereinafter referred as ‘the Act of 1961’) has been granted. 2. The facts of the case in short for disposal of this appeal are as under : 3. That the plaintiff Ramnarayan (now dead represented through legal heirs) being a owner of the House No.73, Bada Sarafa, Indore comprising four shops on the ground floor ( for the sake of convenience herein after referred as ‘suit shops’), filed a suit for eviction, arrears of rent and mense profit against the defendant Surajbhan (now dead represented through legal heirs). As per averment made in the plaint, the defendant is a tenant in the suit shop and running the business of sale of sweets. The tenancy is a monthly . There is an arrears of rent from 1.5.1980. The plaintiff served a notice dt.17.9.1980 to the defendant and despite receipt of the notice, the defendant did not pay the rent within time. The defendant without permission of the plaintiff has sublet the suit shops to his brother Sohanlal and handed over the possession to him and he himself has started the business in shop No.69, Bada Sarafa, Indore. According to the plaintiff the suit shops were given on rent for show-room and sale of sweets purpose, but without his permission the defendant has started the cooking and restaurant. He has also caused nuisance by installing furnace and coal in front of the shop. The behaviour of the defendant is also not pleasant towards neigbours. Whenever the plaintiff goes there for a demand of rent, he used to misbehave with him along with his employees. The plaintiff is in need of the suit shop for starting his own business of sale of jewellery of gold and silver because he is not having alternate suitable accommodation in the Indore city. Whenever the plaintiff goes there for a demand of rent, he used to misbehave with him along with his employees. The plaintiff is in need of the suit shop for starting his own business of sale of jewellery of gold and silver because he is not having alternate suitable accommodation in the Indore city. The plaintiff has also alleged that the defendant in the shop No. 4 has dug the big holes in the wall and constructed the almirah and substantially caused the damaged to the suit property. He has also encroached over the extra area. He has also removed the partitioned walls between three shops and converted them into one shop. Due to the aforesaid reasons, the plaintiff does not want to continue with the defendant in the relationship of landlord- tenant. By way of registered notice dt.17.9.1980, he has terminated the tenancy. Despite receipt of notice he defendant has neither submitted a reply nor deposited the arrears of rent. 4. The defendant has a written statement refuting all the averment and allegations made in the plaint. He submitted that the plaint has been filed on the basis of false and incorrect allegations. He is peacefully running his business in the rented shops and with the permission of the plaintiff, he has renovated the shops. He sent the rent by money order, but the plaintiff has returned the same. He has specifically denied the allegations of sub-tenancy to his elder brother late Sohanlal and pleaded that Sohanlal is actual brother in the rented shops since beginning ,at the time of taking suit shops on rent, he made it clear that he is taking the suit shops for his brother, who is at present residing in Mathura city. He took the shops on rent as per the instruction of his brother Sohanlal who is running his business since 1963 in the said suit shops. He has also specifically denied the nuisance and the misbehaviour and the bonafied need of the plaintiff. The plaintiff has got vacated three shops from the Sohanlal and out of which one is lying vacant and two have been given on rent and prayed for dismissal of the plaint. 5. On the basis of pleading, the trial Court framed 16 issues for adjudication. The plaintiff has got vacated three shops from the Sohanlal and out of which one is lying vacant and two have been given on rent and prayed for dismissal of the plaint. 5. On the basis of pleading, the trial Court framed 16 issues for adjudication. The plaintiff has examined seven witnesses namely Laxminarayan (PW1), Yashwant (PW2), Bherulal (PW3), Ramchandra (PW4), Javerilal Kothari (PW5), Shankarlal (PW6) and Girdharlal (PW7) and exhibited 27 documentary evidence as Exb.P-1 to P-27. In rebuttal, the defendant has examined Madhusudhan Takle (DW1), D.M. Bhatia (DW2), Gulab Chand (DW3) and exhibited the documentary evidence as D/1 to D/100. After appreciating the evidence came on record, the learned Civil Judge Class II vide judgment and decree dated 30.7.2005 has decreed the suit partly by directing the defendant to pay the arrears of rent from the date of filing of the suit, i.e., 1.5.1980 and dismissed the suit for the decree of eviction on bonafide need, nuisance, sub-tenancy etc. 6. Being aggrieved by the dismissal of the suit, the plaintiff preferred a first appeal before the District Judge, Indore. Vide judgment dated 17.2.2007, the learned ADJ (Fast Track), Indore has partly allowed the appeal by decreeing the suit under section 12(1)(b) of the Act of 1961, by directing the defendant to hand over the vacant possession of the suit shops as described in para 4 of the plaint. 7. Being aggrieved by the aforesaid judgment and decree, the defendant filed first appeal before this Court. Vide order dated 7.8.2013, this Court has admitted the appeal on the following substantial questions of law : “(i) Whether the facts of the present case, the first appellate Court was justified in reversing the judgment of the trial Court and passing the decree of eviction under section 12(1)(b) of the M.P. Accommodation Control Act. (2) Whether the landlord has been able to prove the necessary ingredients of subletting for entitling him for a decree of eviction under section 12(1)(b) of the Act specially when the alleged subtenant Sohanlal is the real brother of the appellant ?” 8. The plaintiff has also filed a cross – appeal under Order 41 rule 22 of CPC, against the refusal to grant the decree under section 12(1)(a)(c)(d)(f)(k)(m) and (o) of the Act of 1961 . The said appeal has not been admitted so far on any of the question of law proposed therein. The plaintiff has also filed a cross – appeal under Order 41 rule 22 of CPC, against the refusal to grant the decree under section 12(1)(a)(c)(d)(f)(k)(m) and (o) of the Act of 1961 . The said appeal has not been admitted so far on any of the question of law proposed therein. However, at this stage Shri A.S. Kutumbale, learned Senior counsel for the respondent submitted that the plaintiff are not pressing the cross objection hence same is here by dismissed. Hence, the appeal filed by the defendant is heard only on the aforesaid question of law framed by this Court. 9. Shri A.S. Garg, learned Senior counsel for the appellant defendant submits that defendant and his brother Sohanlal are the member of the joint Hindu family. The defendant took the suit shops on rent as per instruction of his elder brother Sohanlal. Later on he came to Indore in the year 1965 and started the business of sale of sweets in the name of “Brijwasi Mishthan Bhandar” . Defendant and his brother were member of HUF and even-otherwise there is a presumption of joint Hindu family in Hindu law and the learned First Appellate Court has wrongly granted the decree under section 12(1)(b) of the Act of 1961 on the ground of sub-tenancy . The learned trial Court while deciding the issue No. 2(a) and (b) has rightly held that the plaintiff has failed to prove that the defendant has sublet the shop to his brother because his sons are doing the business in it. 10. Shri Garg has further argued that the defendant Sohanbhan has deposed that he himself took five shops in the year 1963 on the rent of Rs. 350/- per month. Sohanlal is his elder brother who is residing in first floor over the suit shops and they have a joint Hindu family and in the year 1983-84, they were separated from each other. He further submitted that Girdharilal (PW7) in his evidence has admitted that Surajbhan is in possession in shop No. 73, Bada Bazar. 350/- per month. Sohanlal is his elder brother who is residing in first floor over the suit shops and they have a joint Hindu family and in the year 1983-84, they were separated from each other. He further submitted that Girdharilal (PW7) in his evidence has admitted that Surajbhan is in possession in shop No. 73, Bada Bazar. In support of his contention, he has placed reliance over the judgment passed by the Apex Court in the case of Dipak Banerjee v. Smt. Lilabati Chakraborty reported as AIR 1987 SC 2055 wherein it has been held that in order to prove the tenancy and sub-tenancy, two ingredients has to be established firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, that right must be in lieu of payment of some compensation or rent . He has further placed reliance over the judgment of the Apex Court passed in the case of Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy reported as (2005)1 SCC 481 in which it has been held that the term ‘sublet’ is not defined in the Act . The definition of ‘lease’ can be adopted mutatis mutandis for defining of ‘sub-lease’. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub- letting. Merely fact that another person is allowed to use the premises while lessee retains the legal possession is not enough to create a sub-lease. He has also placed the reliance over the judgment passed by this Court in the case of Habbu & anr. v. Mohammad Hasan & anr., [ 1985 MPLJ 5 ] in which it has been held that the burden is on a plaintiff to prove that the defendant had unlawfully sublet the accommodation to someone else. If the plaintiff proves the fact of subletting then the burden shifts on a defendant to establish that it is not subtenancy. If the first thing is not prove the second question does not arise for consideration. If the plaintiff proves the fact of subletting then the burden shifts on a defendant to establish that it is not subtenancy. If the first thing is not prove the second question does not arise for consideration. He has placed reliance over the judgment passed in the case of Abdul Rehman v. Mst.Khatun [ 1984 MPWN 14 ] in which it has been held that in case of parting with the possession, it is essential to alleged that tenant has left the premises altogether. Finally, he has placed the reliance over the judgment of the apex Court in the case of Kala & anr. v. Madho Prashad Vaidya reported as (1998)6 SCC 573 . 11. At last Shri Garg Ld. Sr Counsel submitted that the learned first appellate Court has wrongly reversed the decree passed by the civil Court , hence, both the question of law are liable to be answered in the favour of the appellant defendant. 12. Per Contra Shri A.S. Kutumbale, learned Senior counsel appearing for the respondent plaintiff refuted the arguments of Shri Garg by submitting that the Exhibit P-25 is a ‘Rent Note’ executed between plaintiff and the defendant late Surajbhan in which there is no description that he was taking shop for his brother Sohanlal. In reply to legal notice, i.e., Exhibit P-6, the defendant has admitted that the Sohanlal is doing the business in the shop in question. In para 12 of the written statement also he has admitted that Sohanlal is in exclusive possession. PW4 and PW5, who are the witnesses of the rent note have also specifically stated that the rent note was executed by defendant late Surajbhan. The learned trial Court has recorded the finding on issue no.2(a) and (b) in a very slip-shot manner without appreciating the evidence came on record therefore, the first appellate Court has rightly reversed the same. 13. Shri A.S. Kutumbale, learned counsel for the respondent has drawn attention of this Court to para 12 of the appellate Court’s order in which the admission on part of the defendant has been duly considered and held that Sohanlal is exclusively doing business in the suit shop. The defendant had also requested to plaintiff in the year 1972 for change of lease agreement, but the plaintiff denied the same. The defendant had also requested to plaintiff in the year 1972 for change of lease agreement, but the plaintiff denied the same. The first appellate Court has duly considered the evidence came on record in respect of parting of possession by the defendant hence, the said finding is not liable to be interfered in the second appeal and both the questions of law are liable to be answered against the appellant. In support of his contention, he has placed reliance over the judgment passed by the Apex Court in the case of M/s. Shalimar Tar Product Ltd v. H.C. Sharma & ors. reported in AIR 1988 SC 145 in which it has been held that the consent to sublet must be in writing. Mere fact that the tenant asked orally and the landlord refused it would not amounts to acquiescence. He has strongly placed reliance over one of the judgment passed by this Court in the case of Navalmal s/o. Pinjamal v. Laxmansingh s/o. Pachamsingh & anr. reported as 1991 MPLJ 812 in which the tenant took a plea that his real brother is in possession of the shop being a family member, but the same has been considered as a sub-tenancy on the basis of facts and circumstances of the case. It has also been held that there is no presumption in law that the business run by one brother can be treated as joint business of another brother . In the case of Bhairavchand Nandan v. Randhir Chand Dutt reported as 1988 MPRCJ 67 SC, the apex Court held that without consent subletting cannot be done to a real brother even. He has also placed reliance over the judgment in the case of Kishanchand v. Ramkrishna, [ 1991 JLJ 636 ] in which the shop was let out to the defendant who sublet his brother and move to a different place and it has been held that the relation being real brother would not make any exception and decree under 12(1)(b) is liable to be passed. In Second Appeal No.10/2004, decided on 8.3.2018 at Gwalior Bench, the Court has observed that even the possession given by nephew by way of family settlement has been held to be a sub-tenancy without permission of the landlord. In the case of Harishcandra & anr. In Second Appeal No.10/2004, decided on 8.3.2018 at Gwalior Bench, the Court has observed that even the possession given by nephew by way of family settlement has been held to be a sub-tenancy without permission of the landlord. In the case of Harishcandra & anr. v. Chandrakumar & anr., [2000 MPACJ 78] it has been held that the tenant could not produce any material to show that the shop was rented to the joint family business. The tenant parted possession to the real brother and section 12(1)(b) of the Act, 1961 was made out. In Sunil & ors. v. Smt. Vimla Bai & ors. 2007(2) JLJ 432 = 2007(3) MPHT 95 it has been held that the definition of family does not apply to a tenant because the definition of tenant a member of his family are not included. If the tenant has parted with the possession and occupied the another accommodation his defendant or other family members cannot claim that fresh tenancy has been created in their favour, the decree under section 12(1)(b) of the Act of 1961, is liable to be passed. Finally he has placed the reliance over the judgment of the apex Court in the case of Pandurang Jivaji Apte v. Ramchandra Ganghadhar Ashtekar (dead) by Lrs. & ors. reported as AIR 1981 SC 2235 wherein the party failing to appear in the Court drawing an adverse inference would arise only when there is no other evidence on record on the point in issue. Shri Kutumble ld. Sr. counsel further submitted that the defendant has specifically admitted that the shop was taken for his brother and since 1963 he is running the shop and after his death his sons are running the business therefore, there is an admission on part of the defendant contrary to the rent note in his name. He has not produce any material in respect of joint business. The plea of joint Hindu family and joint Hindu business is all together different and the theory joint Hindu family is not applicable to the tenant under the Act of 1961. Hence, the appeal is liable to be dismissed. Conclusion ....... 14. This Court has admitted the appeal on two substantial questions of law. The plea of joint Hindu family and joint Hindu business is all together different and the theory joint Hindu family is not applicable to the tenant under the Act of 1961. Hence, the appeal is liable to be dismissed. Conclusion ....... 14. This Court has admitted the appeal on two substantial questions of law. The second question of law is “Whether the landlord has been able to prove necessary ingredients of subletting specially when the alleged sub-tenant Sohanlal is the real brother of the appellant?” 15. The second issue is liable to be decided first as to whether there is any ingredient of sub-tenancy and the possession of the brother of a tenant in the suit shops amounts to sub-tenancy in order to get the decree of eviction under section 12(1)(b) of the Act of 1961. The plaintiff served the legal notice Exhibit P/1 inter alia on the ground that without his permission defendant has kept Sohanlal as sub-tenant. The aforesaid notice was replied by Sohanlal as well as defendant Surajbhan both, through their counsel by submitting that Sohanlal and Surajbhan, are real brother and Sohanlal, being the elder brother took a shop on rent in the year 1963. They had a joint business in Mathura city and Surajbhan came to Indore first and took the suit shop on rent and started the business in the name of ‘Brijwasi Mishtan Bhandar’. Thereafter, Sohanlal came to Indore in the year 1963 and inaugurated the shop in the name of ‘Brijwasi Sweet’ and since then, he is depositing the rent and running his business in the suit shops. They have converted three shops into one shop. In the aforesaid reply they have further pleaded that from 1970 Sohanlal and Surajbhan, had started separate business and he requested the plaintiff for change of lease agreement, but the plaintiff has refused the same, but started issuing a receipt in the name of Sohanlal. 16. In the written statement also it is pleaded that the defendant is doing the business in house No. 69, Bada Sarafa and his brother Sohanlal is doing the business with his son in the suit shops. Despite the aforesaid pleadings, the defendant did not pray the trial Court that the suit suffers from the nonjoinder of the party and the plaintiff be directed to implead Sohanlal as defendant and his name be deleted. Despite the aforesaid pleadings, the defendant did not pray the trial Court that the suit suffers from the nonjoinder of the party and the plaintiff be directed to implead Sohanlal as defendant and his name be deleted. He continued to contest the suit with the aforesaid plea that the actual tenant from very beginning is Sohanlal and there is no subtenancy therefore, he contested the entire suit on the plea that Sohanlal is tenant from very beginning and he is doing the business in another premises. Admittedly, the lease agreement deed was executed between plaintiff and defendant in which there is no plea of joint business joint Hindu family. There is no averment that he is executing the rent agreement on behalf of his brother Sohanlal and he will start the business in future therefore, the tenancy was established between the plaintiff and defendant alone. In the rent deed also the defendant did not sign as member of joint Hindu family or proprietor of joint business. In para 11 of his cross – examination, he has admitted that when the agreement for rent was arrived with the plaintiff, he alone was present and his brother Sohanlal was not there. He has also admitted that from the very beginning, the rent receipts used to be issued in his name showing as a tenant until filing of the civil suit. ß8- -----;g dguk lgh gS fd nkfo;k nqdku dh 'kq#vkr ls gh fdjk;s dh jlhn esjs Lo;a ds uke ls eq>s fdjk,nkj n'kkZdj nkok izLrqr djus ds iwoZ rd nh x;h-----------------ß ß11 -----;g dguk lgh gS fd tc nqdkusa fdjk, ls ysuk r; gqvk Fkk rks bl ckcr~ fy[kk i 17. The defendant witnesses have also admitted that defendant has started doing the business of jewellery in a shop No.69, Sarafa Bazar whereas in the shops in dispute the business of sweet is going on and the same is being run by his brother Sohanlal and after his death, his son. Therefore, there is enough material available in plaint, documentary evidence as well as in oral evidence to come to the conclusion that the shop was given on rent to the defendant, but he has parted the possession and given it to his brother Sohanlal and he is doing the business. 18. Therefore, there is enough material available in plaint, documentary evidence as well as in oral evidence to come to the conclusion that the shop was given on rent to the defendant, but he has parted the possession and given it to his brother Sohanlal and he is doing the business. 18. The sole defence of the appellant defendant is that Sohanlal and Surajbhan had a joint Hindu family and also had joint business in Mathura city. Admittedly, there is a presumption of joint Hindu family, but there cannot be a presumption of joint family business. No material has been produced before the trial Court as well as before this Court to establish that the defendant and his brother had a joint business and the suit shops were taken on rent by both of them to do the joint family business. Not a single document in respect of registration of firm, joint business, tax and tax returns was submitted by the defendant to prove joint family business. Therefore, the first appellate Court has rightly came to the conclusion that the defendant has parted the possession of the shop in question to his brother and rightly decreed the suit under section 12(1)(b) of the Act of 1961 and I do not find any perversity in it also. The admission is based evidence as held by the Apex Court in the case of United India Insurance Co. Ltd. v. Sameerchandra Choudhary, reported as 2005(5) SCC 784 wherein the defendant has admitted that he is doing the business in the premises 69, Bada Sarafa and his brother Sohanlal is running the business in House No. 73, and 74 and he is residing in the first floor over the shop therefore, the plaintiff is not required to prove any other facts by way of evidence. The defendant has also admitted that since 1972, Sohanlal is doing business independently and he requested for change of rent deed but the plaintiff has declined it. He has also admitted that till filing of the suit, the rent receipt is being issued in his name. In the case of Navalmal s/o. Pinjamal v. Laxmansingh s/o. Pachamsingh & anr (supra), and Kishanchand v. Ramkrishna (supra), the apex Court as well as this Court has held that the parting with the possessionand sub-letting the suit premises, the plaintiff is entitled for a decree under section 12(1)(b) of the Act of 1961. In the case of Navalmal s/o. Pinjamal v. Laxmansingh s/o. Pachamsingh & anr (supra), and Kishanchand v. Ramkrishna (supra), the apex Court as well as this Court has held that the parting with the possessionand sub-letting the suit premises, the plaintiff is entitled for a decree under section 12(1)(b) of the Act of 1961. In the case of Harishcandra & anr. v. Chandrakumar & anr. (supra), this Court has declined to accept the plea of business carrying on by joint Hindu family for want of evidence like sale tax assessment, registration certificate etc. Relevant extract of the aforesaid judgment reads as under : “He claimed that the suit premises were let out to his father, which was contrary to his stand in written statement. However, in para 12, he again changed his version and admitted that in the rent note rent note Ex.D-3, he alone was the tenant. He further admitted that the shop at Milauniganj had a firm name of Lalluram and Harishchandra, but did not produce the sales tax registration certificate. He did not produce the order of sales-tax assessment. He did not produce the registration certificate of the shop for showing that the suit shop belonged to the joint Hindu family. DW3, Udaychand was also examined for proving that in the suit shop a joint Hindu family business was done. This witness admits that the suit shop was let out to Harshchandra and it is registered in the name of Harishchandra. But, he also did not produce any documentary evidence for proving the same. He denied that the licence to sell food articles was not in his name. He claimed that it was in the name of appellant No. 1. He did not produce any bill in order to show that the bills were in the name of joint Hindu family business. He stated that the income tax from the income of the suit shop was paid by the appellant No.1 under his signature and not in the name of joint Hindu family firm. 7. In the opinion of this Court, the appellants did not produce any evidence to prove their case that the appellant No.2 was sitting in the suit shop where the business of the joint Hindu family was carried out. 7. In the opinion of this Court, the appellants did not produce any evidence to prove their case that the appellant No.2 was sitting in the suit shop where the business of the joint Hindu family was carried out. The finding of fact recorded by the Courts below is based on true facts and the Courts below were entitle to draw an inference from proved fact which cannot be interfered with in second appeal. The appellants have failed to prove that the appellant No.1 was sitting n the suit shop only for the purpose of looking after the business of the joint Hindu family. The inference drawn by the Court below that the appellant No.1 parted with possession of the suit shop is purely a finding of fact, being in inference drawn from proved facts. The Court below had not misapplied the law on proved facts and, therefore, also no substantial question of law arises on the point No.1 in this appeal.” 19. In the case of Navalmal v. Laxman Singh (supra), the this Court has observed thus : “17. It is well settled that sub-tenancy cannot be proved by direct evidence. Mostly it is a matter of inference to be drawn from the facts and circumstances brought on record. A mere temporary occupation by someone or where the possession is retained by the tenant through its use is permitted even by someone else, the tenant may not incur disqualification Under section 12(l)(b) of the Act. Because the exact relationship of tenant and the alleged sub-tenant or the person in possession would be within the knowledge of the tenant and such person, the law expects them to come with a clear statement of facts and satisfy the conscience of the Court that law had not been breached. The burden of proof lies on the landlord in the sense that he has to make out the availability of the ground for ejectment; nevertheless once it is shown that the tenant had parted with possession or there was a stranger in the premises the onus would shift on the tenant whom the law would expect to discharge his obligation in shifting the onus back. [See Narayan v. Indian Mill Stores, Raipur, 1977 MPLJ 161 = 1977 JLJ 434 ; Gouribai v. Ranidan, 1977 MPLJ 456 and Rajaram v. Prahladdas, 1961 MPLJ Note 233 = 1961 JLJ 478 ].” 20. [See Narayan v. Indian Mill Stores, Raipur, 1977 MPLJ 161 = 1977 JLJ 434 ; Gouribai v. Ranidan, 1977 MPLJ 456 and Rajaram v. Prahladdas, 1961 MPLJ Note 233 = 1961 JLJ 478 ].” 20. In view of the above findings Hence, the question of law No.2 is answered against the appellant. 21. So far issue No.1 is concerned, the learned Civil Judge decided the issue no.2 (a) and (b) in a very slip-shot manner without appreciating the evidence came on record. The finding recorded by the trial Court is reproduced below : okniz'u Øekad 2] v] c] l % mDr fopkj.kh; iz'u ds laca/k esa fdlh Hkh oknh lk{kh us dksbZ dFku ugha fd;k gSA tosjhyky ok-lk- 5 dk dsoy bruk dFku gS fd nqdku ij vktdy lksguyky ,oa muds yMds cSBrs gS] igys bl nqdku ij izfroknh cSBrs FksA lk{kh ds dsoy brus dFku ls ;g izekf.kr ugha gksrk gS fd izfroknh us lksguyky dks iksV HkfMrh ds :i esa j[k fy;k gS vFkok izfroknh us oknxzLr LFkku dk ewfrZe; vkf/kiR; Lo;a us NksMdj lksguyky dks lkSai fn;k gS] vFkok oknxzLr LFkku NksMdj vyx ls O;olk; djus pys x;s gSa] vr% mDr okniz'uksa dk fujkdj.k mlds fu"d"kZ vuqlkj fd;k tkrk gSA 22. The first appellate Court has considered the entire evidence in detailed in respect of sub-tenancy, joint business, rent agreement and rent receipt etc and then came to the conclusion that the plaintiff is entitled to decree under section 12(1) (b) of the Act of 1961. Therefore, the first appellant Court did not commit any error while reversing the entire judgment and decree. Therefore, the first appellant Court did not commit any error while reversing the entire judgment and decree. Relevant part of the first appellate Court order reads as under : izfroknh lwjtHkku us eq[;ijh{k.k dh dafMdk 2 esa ;g dFku fd;k gS fd lksguyky th mlds cMs HkkbZ yxrs gSa vkSj lksguyky th nkfo;k edku dh igyh eafty ij jgrs Fks vkSj eq[; ijh{k.k dh dafMdk 2 esa gh bl lk{kh us ;g dFku fd;k gS fd mlds cMs HkkbZ lksguyky th vkdj cSBrs Fks vkSj dHkh dHkh fdjk;s dk Hkqxrku Hkh dj nsrs Fks vkSj lu~ 1983&84 ls lHkh HkkbZ vyx&vyx gks x;s] tcfd vfHkopu ds fo'ks"k dFku dh dafMdk 12 esa ;g izfroknh us vfHkopu fd;k gS fd lu~ 1972 ls oknxzLr LFkku esa lksguyky th vdsys O;kikj dj jgs gSA dafMdk 5 eq[; ijh{k.k esa izfroknh lwjt Hkku us ;g dFku fd;k gS fd lksguyky th ds ikl oknxzLr edku ds lkeus edku uEcj 74 esa 4 nqdkusa Fkh vkSj og Hkh feBkbZ dk /ka/kk djrs Fks rFkk izfrijh{k.k dh dafMd&1 esa bl lk{kh us 1958 esa eFkqjk ls bnkSj vkus dk dFku fd;k gS vkSj 69 cMk ljkQk] bUnkSj esa O;kikj djuk vkSj mlds Åij fuokl djus dk dFku fd;k gSA izfroknh ds mijksDr lk{; ls vkSj vfHkopu ls ;g rF; izekf.kr gS fd izfroknh lwjtHkku eFkqjk ls bUnkSj vius iwjs ifjokj ds lkFk vk;k vkSj 69 cMk ljkQk] bUnkSj esa O;kikj djus ds fy;s edku fy;k vkSj mlh edku esa izfroknh lwjtHkku fuokl djrk Fkk rFkk 1963 esa oknxzLr nqdku feBkbZ dk 'kks:e yxkus ds fy;s fy;k Fkk vkSj mlds i'pkr~ lksguyky th vk;s vkSj lksguyky th ds uke ls vkSj muds yMds ds uke ls oknxzLr nqdku ds vfrfjDr LFkku fdjk, ij fy;k x;k] ftlesa lksguyky th vkSj muds yMds jgrs FksA ,slh fLFkfr esa izfroknh ds }kjk tks la;qDr ifjokj dh voèkkj.kk crkbZ xbZ gS] og fo'oluh; ugha gS] D;ksafd izfroknh dh lk{; ls gh ;g rF; izekf.kr gS fd izfroknh lwjtHkku 69 cMk ljkQk] bUnkSj esa fuokl djrk Fkk vkSj lksguyky oknxzLr nqdku ds vykok fy;s x;s 73&74 dh mijh eafty ij fuokl djrk FkkA ekuuh; e/;izns'k mPp U;k;ky; us 'kakfr dqekj cuke usepan 1992 ,e ih lh ts 448 esa ;g izfrikfnr fd;k gS fd tgk¡ ij izfroknh vdsyk HkkMsnkj ds :e esa vdsyk clk;k x;k Fkk vkSj mlds dqN lkyksa ckn mlds firk vkSj HkkbZ mlds lkFk jgus ds fy;s vk x;s Fks rks nksuksa ?kVuk,¡ feykbZ ugha tk ldrh vkSj blls firk vkSj HkkbZ ds i{k esa HkkMsnkj ds :i esa ;k HkkMsnkj ds lnL; ds :i esa jgus dk vf/kdkj mRiUu ugha gksrkA IkzLrqr izdj.k esa Hkh izfroknh lwjtHkku 1958 esa vius ifjokj lfgr bUnkSj esa vk;k rFkk 1963 esa bUnkSj esa oknxzLr nqdku fdjk;s ij fy;k vkSj fdjk;k fpVBh esa bl ckr dk dksbZ mYys[k ugha gS fd mlus ;g LFkku la;qDr ifjokj ds fy;s ;k lksguyky th ds fy;s O;kikj djus ds fy;s fdjk;s ij fy;k gS ,slh fLFkfr esa ;g izekf.kr ugha gS fd izfroknh us ;g nqdku vius HkkbZ lksguyky th ds O;kikj djus ds fy;s fdjk;s ij fy;k Fkk vkSj og la;qDr :i ls fuokl djrs FksA ekuuh; e/;izns'k mPp U;k;ky; us yhyk/kj cuke eaxrwyky 1993 ,e ih , lh ts 3 esa ;g izfrikfnr fd;k gS fd tgk¡ fdjk;kukek esa izfroknh dks HkkMsnkj crk;k x;k gS ogk¡ izfroknh ;g ugha dgk ldrk gS fd ;|fi fdjk;k ukek mlds }kjk fu"ikfnr fd;k x;k gS] okLrfod HkkMsnkj mldk HkkbZ gS tks fd iVVs ij fn;s x;s ifjlj esa nqdku pyk jgk gSA izLrqr izdj.k esa Hkh fdjk;k ukek fpVBh izfroknh ds uke ls fy[kh xbZ gS vkSj izfroknh ds vfHkopu ds vuqlkj lksguyky th 1972 ls oknxzLr nqdku esa O;kikj dj jgs FksA blh U;k; n`"Vkar esa ;g Hkh izfrikfnr fd;k x;k gS fd tgka ij HkkMsnkj mlds }kjk HkkMs ij yh xbZ nqdku ds vf/kiR; esa ugha Fkk vkSj mldh i`Fkd nqdku Fkh tgka ij og viuk O;olk; pyk jgk Fkk vkSj fooknxzLr nqdku esa O;olk; HkkMsnkj ds HkkbZ ds }kjk pyk;k tk jgk FkkA ogk¡ Li"V :i ls fl} gksrk gS fd HkkMsnkj LFkku ds dCts ls foyx gks x;k gSA bl izdj.k esa Hkh izfroknh lwjtHkku 69 cMk ljkQk] bUnkSj esa O;olk; dj jgk gS] ,slk Li"V lk{; gSA ,slh fLFkfr esa izfroknh dh lk{; ls ;g Hkh nf’kZr gS fd izfroknh lwjtHkku us fooknxzLr LFkku ds dCts ls vius vkidks vyx dj fy;k gSA+ 23. In view of the above, I do not find any ground to interfere. Both the questions of law are hereby answered against the appellant and the appeal is dismissed. The judgment and decree dated 17.2.2007, passed by the 17th Additional District Judge (Fast Track), Indore (M.P.) in Civil First Appeal No. 10/2006 is here be affirmed . Decree be drawn in favour of plaintiff..