Judgment

S. Saghir Ahmad, J.-Indefatigable stamina to litigate has been exhib­ited by the parties in this case in which proceedings started on 5.2.1965 when the respondent, as landlord of the premises in question, filed a petition under Section 14(1)(b) of the Delhi Rent Control Act for the eviction of the petitioner on the ground of subletting. This application was allowed on 29th August, 1974 by the Addl. Rent Controller and the petitioner was directed to be evicted as it was established on record that the premises had been sublet by the peti­tioner in contravention of the prohibitory provisions of the Act.

2. The petitioner challenged the judgment of the Rent Controller in an appeal filed before the Rent Control Tribunal which was allowed on 3rd March, 1978 and the eviction order was set aside. The respondent-landlord approached the Delhi High Court in second appeal (SAO No. 217 of 1978) which was allowed on 26th September, 1994 and the case was remanded to the Tribunal to rehear the appeal. The Rent Control Tribu­nal dismissed the appeal of the petitioner by judgment dated 7.7.1997 and the finding recorded earlier by the Addl. Rent Controller that the premises had been sublet was upheld. The petitioner, thereafter, filed S.A. No. 48 of 1997 in the Delhi High Court which was dismissed on 3.12.1997. Now the matter is before us. Just as every battle has a D-Day, so also this long litigative battle must come to an end today.

3. The only contention raised before us in this Special Leave Petition is that the finding recorded by the Rent Controller as also the Rent Control Appellate Tribunal, Delhi, on the question of subletting is errone­ous as they have not recorded a positive finding that there was payment of consideration by the so-called sub-tenants to the petitioner for parting with the part of possession of the disputed premises. It is contended that unless payment of consideration was established as a fact between the tenant and the sub-tenant, the eviction petition under Section 14(1)(b) of the Delhi Rent Control Act cannot be allowed. We are not impressed by the argument.

4. Sub-tenancy or subletting 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 overtacts 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 sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sublet 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 f