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2022 DIGILAW 154 (CHH)

Vikesh Kumar Saraf, S/o. Shri Ashok Chand Saraf v. Asha Agrawal, W/o. Shri Bijay Kumar Agrawal

2022-03-29

NARENDRA KUMAR VYAS

body2022
JUDGMENT : 1. The instant First Appeal has been filed by the appellant/ plaintiff under Section 96 of the Code of Civil Procedure,1908 challenging the judgment and decree dated 25-11-2010 passed by 9th Additional District Judge (FTC) Raipur in Civil Suit No. 15-A/2006 by which the suit filed by the plaintiff for ejectment of defendant from shop No. J-47 situated on the ground and first floor at Textile Market, Pandri, Raipur for arrears of rent from July 2005 to August 2005 and damages has been dismissed. 2. Brief facts necessary for disposal of this appeal are that the plaintiff is the owner of Shop No. J-47 as detailed in the map attached with the plaint. It is averred in the plaint that the plaintiff gave the shop No. J-47 on rent to the defendant vide agreement dated 04.11.2004 for 11 months on monthly rent of Rs. 13,180/-. As per the terms of rent agreement, the defendant had to pay the rent on 5th day of every month. The defendant has stopped the payment of rent from July 2005, then the plaintiff made personal contact but he has not paid the rent despite request made by him. It has been further contended that after completion of studies, the plaintiff decided to start his cloth business and since there was no suitable place available to him, then he made personal request to the defendant to vacate the suit premises, also requested for payment of arrears of rent but the defendant has not paid the monthly rent and has violated the terms of rent agreement. It is contended that the shop is bonafide required for the plaintiff but defendant was not vacating the same, therefore, he has sent legal notice on 01.09.2005 and demanded vacant possession of suit shop. 3. It is further contended that after receiving the notice, the defendant has neither vacated the suit premises nor he paid arrears of rent, therefore, there was no option for the plaintiff to file the suit for ejectment. The plaint was amended and it was pleaded that the plaintiff has divided the shop on various parts and has given on rent to other persons. The plaint was amended and it was pleaded that the plaintiff has divided the shop on various parts and has given on rent to other persons. It is further contended that other than the disputed shop, one shop was given on rent to Smt. Sunita Garg, she was running her business in the name and style of Shakhi Saheli and the other shop was given on rent to Bharti Jain, she was running her business in the name and style of Rajdhani Saries. It has also been contended that the plaintiff has filed the Civil Suit for eviction against Smt. Sunita Garg before the Court of Additional District Judge (FTC) Raipur in Civil Suit No. 15-A/2006, the Court has granted decree of eviction and arrears of rent on 27.11.2007. The plaintiff has filed an appeal against the judgment and decree dated 27.11.2007 which is pending for consideration before this Court. It is further contended that during execution proceedings Smt. Sunita Garg had given vacant possession of the shop measuring 15x18 squire feet, in which, the plaintiff has started his shop in the name and style of Chetna Sari but this space is not sufficient to run Sari business and readymade garments, therefore, the shop is bonafidely required for plaintiff to run his business smoothly. It has also been contended that the defendant has given rented shop to Vijay Agrawal as sub-tenant, in which Vijay Agrawal is running his business in the name and style of Rajgharana Saris, therefore, the suit shop deserves to be vacated for violation of terms of rent agreement. 4. The defendant has filed her written statement denying the allegation made in the plaint and would submit that the plaintiff has enhanced the rent ignoring the provisions of Rent Control Act, therefore, she has moved an application for fixation of rate of suit shop, as such the defendant is not responsible for payment of Rs. 13,180/-. It has been further contended that whatever rent fixed by Rent Control Authority, she is ready to pay the rent. It has also been denied that the Shop has been divided in many parts and is given on rent to other person. It has also been contended that the plaintiff has given some portion of the shops to Sunita Garg and Bharti Jain as tenant. It has also been denied that the Shop has been divided in many parts and is given on rent to other person. It has also been contended that the plaintiff has given some portion of the shops to Sunita Garg and Bharti Jain as tenant. He has filed the suit for eviction which was allowed by the trial Court and accordingly vacant possession has been given, therefore, it is incorrect to say that the plaintiff is bonafidely required the suit shop. It has also been denied that the plaintiff is intends to open the shop in the name and style of Chetna Saris and ready-made garments for this space is required bonafidlly. It has also contended that the defendant is in possession of shop since March 2001 and the agreement which was executed for 11 months has become void ab initiao because of as per provisions of law, possession for more than 1 year can be done through registered sale deed only. It has also contended that other shops are available for the plaintiff in the same premises, therefore, he can use those shops for his purpose but with malafide intention for ejecting the plaintiff has filed the suit. The contention of the plaintiff is that, he intends to start his Sari and readymade garments business is incorrect as the plaintiff was doing business of interior designer and plaintiff's father is already running the shop near Gokulchandra Mandir road which is managed by the plaintiff as such the suit shop is not required bonafidly. It is denied that defendant has given the suit shop to Vijay Agrawal as sub tenant, in fact, the defendant and Vijay Agrawal were doing their business as per rent agreement executed in the year 2001. Vijay Agrawal is the husband of the defendant and would pray that the suit for ejectment be kindly be dismissed with heavy costs. 5. On the pleading of the parties, learned trial Court has framed as many as six issues. The issues which are relevant for adjudicating the present appeal, are being extracted below:- (I) Whether the plaintiff is required the suit shop bonafidely?. (ii) Whether the defendant has given sub-tenancy to Vijay Agrawal?. 6. 5. On the pleading of the parties, learned trial Court has framed as many as six issues. The issues which are relevant for adjudicating the present appeal, are being extracted below:- (I) Whether the plaintiff is required the suit shop bonafidely?. (ii) Whether the defendant has given sub-tenancy to Vijay Agrawal?. 6. The plaintiff examined himself as (PW-1) Jaichand Saraf (PW-2) and exhibited documents rent agreement dated 04.11.2004 (Ex.P1), rent agreement dated 05.03.2001 (Ex.P-2), rent agreement dated 02.02.2002 (Ex.P-3), rent agreement dated 01.01.2003 (Ex.P-4), rent agreement dated 05.12.2003 (Ex.P-5), notice dated 01.09.2005 (Ex.P-6), postal receipt (Ex.P-7) and receipts (Ex.P-8). 7. Vikesh Kumar (PW-1) in his examination-in-chief has stated that since he was studying therefore, he has given shop on rent and after completion of his study, he was well aware of business practice of clothes, therefore, to start his business he wanted to vacate the suit shop as well as shop given on rent to the tenant Smt. Sunita Garg as this space is most suitable for his clothe business. It is also stated that the shop is situated in the textile market at Pandri Raipur which is suitable place for the business which he intends to start and no other space is available for his business. This witness was extensively cross-examined, wherein he has denied the fact that he was working as interior designer. He has also stated that after the decree of ejectment passed by the Court he has opened the shop in the name of Chetna Sari. The disputed shop is sufficient space and there was two sides of road which was suitable for clothe business. He has also denied that except disputed shop he has not opened any shop in the name of Chetna Sari at Gokulchandra Mandir, Budhapara. He has admitted that his residence is situated at Gokulchandra Mandir and it is denied that his father was doing any clothe business at Gokulchandra Mandir. He has denied that he has closed the shop at Gokulchandra Mandir and thereafter he opened the shop in the name of Sakhi Saheli. He has admitted in paragraph-28 of his cross-examination, that he has gained some experience while working with his uncle. 8. Jaichand Saraf (PW-2) has deposed that plaintiff has gained experience while working under his guidance now he is capable of doing the clothe business independently. He has admitted in paragraph-28 of his cross-examination, that he has gained some experience while working with his uncle. 8. Jaichand Saraf (PW-2) has deposed that plaintiff has gained experience while working under his guidance now he is capable of doing the clothe business independently. This witness was cross-examined but nothing was brought on record to challenge the bonafide requirement of the shop. 9. Defendant has examined herself as (DW-1), Vijay Kumar Agrawal (Ex.D2) and exhibited documents rent receipts from Ex.D-1 to Ex.D-47, receipt of CD preparation (Ex.D-48), Photograph (Ex. 49 and Ex.D-50), copy of application dated 04.03.2005 (Ex.D-51) reply dated 23.06.2005 (Ex.D-52), reply to the notice dated 19.09.2005 (Ex.D-53), postal receipts (Ex.D-54), postal receipts (Ex.D-55), certified copy of judgment dated 27.11.2007 (Ex.D-56). 10. Defendant No. 1 has examined wherein she has stated that she has filed an application before the Rent Control Authority for fixing the standard rent which is pending and at present she is regularly paying rent of Rs. 13,180/- in the C. C.D. (Court) and no arrears of rent is due for payment. She has admitted that Vikesh Saraf has signed the rent agreement (Ex.P2 to Ex.P-5) as landlord and she has put her signature as tenant. She has denied that she has given shop on rent as sub tenant. She has stated that in the disputed shop she and her husband Vijay Agrawal are doing business of Ghaghara in the name and style of Rajgharana. It is denied that her husband was doing business in the name of M/s. Rajgharana Classic in the disputed shop. She has admitted that her husband is the partner of M/s. Rajgharana Sari firm. She has admitted that J-47 is one shop and plaintiff has divided into three parts and given on rent. She has admitted the plaintiff has not given on rent to anybody wherein Sakhi Saheli Sari shop was running. She has admitted that she has filed the application for fixing the standard rent of the shop which is pending. 11. Vijay Kumar Agrawal (DW-2) wherein he has reiterated the same stand as taken by the defendant. He has admitted that shop situated on the ground floor and first floor at Pandri Market is best for doing clothe business and first floor is suitable for showroom. 11. Vijay Kumar Agrawal (DW-2) wherein he has reiterated the same stand as taken by the defendant. He has admitted that shop situated on the ground floor and first floor at Pandri Market is best for doing clothe business and first floor is suitable for showroom. This witness has stated that there was rent agreement executed between the plaintiff and the defendant in the year 2001 and in the said agreement he was the witness. This witness has further deposed that in the Ex.P-1 to Ex.P-5, plaintiff has been shown as owner and the defendant has been shown as tenant of the dispute shop. It has also been admitted by him that in the agreement he was not included as tenant. He was also admitted that in the agreement Ex.P-1 to Ex.P-5 there was specific condition that Smt. Asha Agrawal will not give suit shop to any person on rent. 12. That the trial Court after examining the evidence, material on record has dismissed the suit filed by the plaintiff by recording a finding that the plaintiff is unable to prove that plaintiff is entitled for decree of ejectment as per provisions of Section 12(1)(a) (b) (f) of Chhattisgarh Accommodation Control Act. Being aggrieved by the judgment and decree passed by the trial court on 25-11-2010, the plaintiff has filed First Appeal under Section 96 CPC. 13. Learned Counsel for the appellant/ plaintiff would submit that learned trial Court ignoring the evidence, material on record on perverse finding has held that the appellant has other shop situated at Mahalaxmi Market, other suitable alternative vacant accommodation is available. It is also contended that the landlord is not supposed to curtail his need and convenience for the need, convenience and pleasure of the tenant. He would further submit that definition of family under Section 2(e) of the Chhattisgarh Accommodation Act definition of family does not apply to a husband still the trial Court has committed illegality in not holding that the defendant has given the shop on sub tenant and violated provision of Section 12(1) (b) of the Chhattisgarh Accommodation Act. He would further submit that definition of family under Section 2(e) of the Chhattisgarh Accommodation Act definition of family does not apply to a husband still the trial Court has committed illegality in not holding that the defendant has given the shop on sub tenant and violated provision of Section 12(1) (b) of the Chhattisgarh Accommodation Act. He would further submit that the trial Court has passed the judgment and decree ignoring the settled parameters and norms to be declared sub-tenancy as held by the Hon'ble Supreme Court, therefore, the appellant would pray that the judgment and decree passed by the trial Court be kindly be set aside and decree of eviction against the defendant be kindly granted in favour of the appellant. 14. On the other hand, learned counsel for the respondent/defendant would submit that the finding and the reason assigned by the trial Court is legal, justified and not liable to be interfered by this Court. He would further submit that other accommodation is available for the plaintiff to run his business therefore, it cannot be said that there is bonafide requirement of suit shop, as such learned trial Court has not committed any illegality which warrant interference and would pray for dismissal of the appeal. 15. I have heard learned counsel for the parties and record of the Court below with utmost satisfaction. 16. Before adverting to the legal submission made by the appellants and respondents it would be expedient for this Court to extract relevant provisions which are applicable for deciding the present controversy raised in the appeal. The Act defines member of the family as under :- In case of any person means the spouse, son, unmarried daughter, father, grand father, mother, grand mother, brother, unmarried sister, paternal uncle, paternal uncle’s wife or widow, or brother’s, son or unmarried daughter living jointly with or any other relation dependent on him. 17. Section 12 (1) (a), (b), (f) of the Act provides as under :- “12. 17. Section 12 (1) (a), (b), (f) of the Act provides as under :- “12. Restriction on eviction of tenants – (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :- (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner ; (b) that the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise; (f) that the accommodation let for non- residential purpose is required bonafide by the landlord for the purpose of continuing or starting his business or that of any of his major son or unmarried daughters, if he is owner thereof any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned. 18. From the evidence adduced before the trial Court wherein the plaintiff has categorically deposed that shop is bonafide required and no other open space is available for him at Textile Market Pandri. This Court cannot lost site of the fact that Textile market at Pandri is the biggest textile market of State of Chhattisgarh where entire textile business is carried out, therefore, it will be definitely most suitable place for anybody including the plaintiff. Plaintiff was cross-examined wherein he has denied that he is running clothe business anywhere except in portion of the suit shop which is not sufficient for his business expansion. There was no rebuttal to this evidence still the learned trial Court has committed illegality in holding that the shop is not required bonafidely for the plaintiff to carry out his business. 19. It is well settled position that on the bonafide requirement the tenant cannot dictate the plaintiffs bonafide requirements of the tenancy land. There was no rebuttal to this evidence still the learned trial Court has committed illegality in holding that the shop is not required bonafidely for the plaintiff to carry out his business. 19. It is well settled position that on the bonafide requirement the tenant cannot dictate the plaintiffs bonafide requirements of the tenancy land. Hon'ble Supreme Court in case of Prativa Devi (Smt) vs. T.V. Krishnan (1996) 5 SCC 353 has held as under :- “2.The proven facts are that the appellant who is a widow, since the demise of her husband late Shiv Nath Mukherjee, has been staying as a guest with Shri N. C. Chatterjee who was a family friend of her late husband, at B-4/20, Safdarjung Enclave, New Delhi. There is nothing to show that she has any kind of right whatever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. The reason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and therefore she should continue to live with Shri Chatterjee, was hardly a ground sufficient for interference. The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a lookout of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances. 3. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances. 3. The learned counsel for the appellant however relies on the following observations made by a learned Single Judge (T. P. S. Chawla, J.) supposed to be based on the decision of this Court in Phiroze Bamanji Desai v. Chandrakant N. Patel [ (1974) 1 SCC 661 : (1974) 3 SCR 267 ] to the effect "I think, the true test is whether, on an overall and reasonable view, it can be said that the landlord has suitable accommodation available for his use. In deciding this question one should certainly have regard to the fact that the landlord has no legal right to the other accommodation, but that is only a factor and not the end of the matter." These observations proceed on a misunderstanding of the ratio of the decision of this Court in Phiroze Bamanji Desai case [ (1974) 1 SCC 661 : (1974) 3 SCR 267 ]. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bona fides of the claim of the landlord under Section 14(1)(e) of the Act. The decision of this Court in Phiroze Bamanji Desai case [ (1974) 1 SCC 661 : (1974) 3 SCR 267 ] does not lay down any such proposition. On the contrary, this Court reversed the judgment of the Bombay High Court which proceeded upon that basis. In that case, the first floor was in occupation of the mother of the appellant as a tenant and the question was as to the availability of the Truth Bungalow which was given on leave and licence to one Dr. Bharucha. The High Court came to the conclusion that the requirement of the appellant for the ground floor of the demised premises was not reasonable and bona fide since the appellant was in juridical possession of the Truth Bungalow. This Court in allowing the appeal observed : (SCC p. 668, para 8). Bharucha. The High Court came to the conclusion that the requirement of the appellant for the ground floor of the demised premises was not reasonable and bona fide since the appellant was in juridical possession of the Truth Bungalow. This Court in allowing the appeal observed : (SCC p. 668, para 8). "Now, it is true that when premises are given on leave and licence, the licensor continues, from a juridical point of view, to be in possession of the premises and the licensee is merely given occupation and therefore, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and licence to Dr. Bharucha, was in the possession of the appellant." The Court then pointed out : (SCC p. 668, para 8) "But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bona fide, what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the appellant for occupation so that he could not be said to need the ground floor premises. If the Truth Bungalow was in occupation of Dr. Bharucha on leave and licence, it was obviously not available to the appellant for occupation and it could not be taken into account for negativing the need of the appellant for the ground floor premises." 20. The Hon’ble Supreme Court in Civil Appeal No. 231-232 of 2021 (Balwant Singh @ Bant Singh and Anr vs. Sudarshan Kumar and Anr) decided on 27.01.2021 has held that adequacy or otherwise of the space available with the landlord for the business in mind is not for the tenant to dictate. The Hon’ble Supreme Court in para 11 and 12 of the judgment held as under:- “11. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate. Insofar as the earlier eviction proceeding, the concerned vacant shops under possession of the landlords were duly disclosed, but the case of the landlord is that the premises/space under their possession is insufficient for the proposed furniture business. Insofar as the earlier eviction proceeding, the concerned vacant shops under possession of the landlords were duly disclosed, but the case of the landlord is that the premises/space under their possession is insufficient for the proposed furniture business. On the age aspect, it is seen that the respondents are also senior citizens but that has not affected their desire to continue their business in the tenanted premises. Therefore, age cannot be factored against the landlords in their proposed business. 12. The Rent Controller in denying right to contest to the tenants and ordering handover of vacant possession to the landlord had noted that the landlord had returned to India and required the premises for his bona fide need and accordingly, the summary proceedings under Section 13B for recovery of possession of the entire building was found to be justified. It was also adverted that the present proceedings under Section 13B is the first one filed by the landlord to secure eviction and the earlier proceedings was under Section 13 of the Act. Moreover, there is no bar for a Non-resident Indian to get a building of choice vacated, under Section 13B of the Act.” 21. The Hon’ble Surpeme Court in case of Harish Kumar (since dead) vs. Pankaj Kumar Garg 2022 live law SC 239 decided on 07.01.2022 has held as under:- It is quite clear that afore stated provision seeking release of the premises on the ground of bonafide requirement does not strictly require the landlord to be “unemployed” to maintain an action. All that the provision contemplates is that the requirement so pleaded by the landlord must be bona fide. It is to be noted that the instant premises have been in the occupation of the tenant for more than 30 years and are situated in Jawalapur near Haridwar. The facts on record indicate that the appellant had suffered an accident and he genuinely wanted his son to be settled in 5 business. It may be that the son of the appellant was have some income but that by itself would not disentitle him for claiming release of the premises on the ground of bona fide need. The need pleaded by the appellant was found to be genuine and was accepted by the appellant authority which is the final fact finding authority. The issue with regard to comparative hardship was also answered in favour of the appellant. 22. The need pleaded by the appellant was found to be genuine and was accepted by the appellant authority which is the final fact finding authority. The issue with regard to comparative hardship was also answered in favour of the appellant. 22. From appreciating the evidence, material placed on record and law on the subject it is quite vivid that the tenant cannot dictate the term of landlord with regard to its bonafide requirement of the landlord. Leaned trial Court has not appreciated the evidence, material on record and given perverse finding that no bonafide requirement of suit shop is required ,therefore, the finding and rejection of the suit on the count that no case for ejectment of defendant is made out under Section 12(1) (f) of the act is erroneous and deserves to be set aside by this Court. Accordingly it is held that the plaintiff has made out case for ejectment of defendant/tenant as per provisions of Section 12 (1)(f) of the Act. 23. Learned counsel for the appellant would submit that the plaintiff has made out case for eviction of tenant on the basis of Section 12(1)(a) of the Act 1961 as the defendant is not paying the rent for the month of July 2005 to August 2005, this was vehemently objected by the defendant and would submit that she is paying the interim rent as fixed by the Rent Controlling Authority and also exhibited the rent receipts as Ex.D-1 to Ex.D-47. Learned trial Court after appreciating the evidence has recorded a finding that the plaintiff has not proved that the defendant is not paying the rent without rhyme and reasons but she was depositing in the rent control authority and negative the claim of the plaintiff for eviction of the defendant on the count of Section 12(1)(a) of the Act, this finding is correct as learned trial Court has rightly appreciated the evidence. The plaintiff was cross examined by the defendant wherein he has admitted that the defendant has deposited the amount after issuance of the notice of ejectment of suit shop and has deposed Rs. 26,360/- before the Court. Thus, no case for ejectment of defendant under Section 12(1)(a) of the act is made out. This finding of the trial Court does not suffer from any perversity or illegality which warrants interference by this Court. 24. 26,360/- before the Court. Thus, no case for ejectment of defendant under Section 12(1)(a) of the act is made out. This finding of the trial Court does not suffer from any perversity or illegality which warrants interference by this Court. 24. The learned counsel for the appellant would submit that learned trial Court has committed illegality in not holding that the defendant has given the shop on sub tenancy to other person and there is no violation of section 12(1)(b) of the Act. The learned trial Court while deciding the issue no. 6 has recorded a finding that the defendant and her husband is not adducing correct evidence and has held that the defendant’s husband is doing clothe business in the name and style of M/s. Maharaja Gharana Classic still erred in holding that no case of section 12(1)(b) is made out. The learned trial Court has committed illegality in not granting ejectment decree of defendant on the violation of section 12(1)(b) of the Act despite holding that defendant's husband doing business in the suit property which is amounting to sub tenancy. Hon’ble Supreme Court in the case of M/s. Puri Investments vs. M/s. Young Friends and Co. & Ors. decided on 23.02.2022 in Civil Appeal No. 1609 of 2022 has held as under:- In the case of Flora Elias Nahoum (supra) the question of burden to establish sub-letting has been discussed and it has been observed:- “36. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop”. In that case, plea of sub-letting was made on the allegation of inducting one Joynal Mullick in a shop room by the tenant. 9. On the question of onus to establish receipt of monetary consideration by the tenant from the person whose induction gives rise to cause of action based on sub-letting, it has been held in the case of Bharat Sales Ltd. (supra):- “4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sublease. It may be paid in cash or in kind or may have been paid or promised to the paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delievery of exclusive possession to infer that the premises were sub-let. 12. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. 12. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. There is no dispute that the three medical practitioners were in our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. There is no dispute that the three medical practitioners were in occupation of part of the premises in question. The onus, In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. There is no dispute that the three medical practitioners were in occupation of part of the premises in question. The onus, under such circumstances, was on the respondents to establish the degree of control they were maintaining over the said premises for repelling the plea of sub-letting or assignment or parting with possession. From the passage of the judgment of this Court in the case of Bharat Sales Ltd. (supra) above, it transpires that it was also the respondents’ obligation to demonstrate that there was no monetary consideration on the basis of which the medical practitioners were allowed to operate from the subject premises. Though, it was a chemist shop, evidence reveals that the portion of the premises of which the three medical practitioners were in occupation consisted of individual cabins and had separate telephone connections. These are the factors, on the basis of which, the Appellate Tribunal came to its conclusion against the respondents. 25. From the evidence, material placed on record and law on the subject, it is quite vivid, that the defendant has given sub tenancy to her husband who is not member of the family as defined in Section 2(e) of the Chhattisgarh Accommodation Act and it amounts to sub tenancy. The defendant has failed to prove the factum of sub tenancy and despite clinching evidence adduced by the plaintiff and even after holding that sub-tenancy exists. The defendant has failed to prove the factum of sub tenancy and despite clinching evidence adduced by the plaintiff and even after holding that sub-tenancy exists. Learned trial Court has committed illegality in not granting decree of eviction to the defendant under Section 12(1)(b) of the Act which is illegality and deserves to be interfered by this Court. Accordingly, it is held that plaintiff/appellant is entitled to get decree of eviction against the defendant for violation of section 12(1)(b) of the Act. 26. From the above stated legal position and considering the materials on record, I find that learned trial Court has committed illegality in not granting decree of ejectment against the defendant under Section 12(1)(b) and 12(1)(f) of the Act. Accordingly, the appeal is allowed in part and it is held that appellant is entitled to get ejectment of decree against the defendant under Section 12(1) (b) and 12(1) (f) of the Act. 27. The defendant shall vacate the premises in question on or before 31.03.2023 and shall handover the peaceful and vacant possession to the appellant also by that date or before 31.03.2023. 28. The appeal is allowed in the above terms. No order as to the cost. 29. A decree be drawn up accordingly.