Judgment

M.K. MUKHERJEE, J.- The tenants in a suit for eviction are the appellants before us. Though the landlord-respondent sought eviction of the tenants on various grounds the only ground which survives for our consideration in this appeal is of illegal subletting. According to the landlord the tenants had without his consent sublet the verandah of the tenanted premises to certain individuals, namely, Zinda Hasan, Abdul Rashid and Dhunna, who were doing business there. The defence of the tenants, so far as this ground was concerned, was one of denial.

2. The trial court answered all the issues regarding the grounds of eviction against the landlord and dismissed the suit. In appeal the first appellate court, however, on an exhaustive analysis of the evidence adduced during trial, reached a conclusion to the contrary so far as the issue of subletting was concerned and decreed the suit. The High Court dismissed the second appeal preferred by the tenant affirming the factual findings recorded by the first appellate court. Hence this appeal by special leave.

3. The learned counsel appearing for the appellants first submitted that both the appellate courts failed to consider that in order to constitute subletting there must be parting with legal possession, that is, possession with the right to include and also the right to exclude others and that the evidence on record did not justify such a conclusion. In support of this contention he relied upon the judgments of this Court in Shalimar Tar Products Ltd. v. H.C. Sharma{(1988) 1 SCC 70} and Gopal Saran v. Satyanarayana{(1989) 3 SCC 56}.

4. As we find that both the appellate courts have considered the evidence in the light of the above proposition of law we are unable to accept the contention of the learned counsel for the appellants. The first appellate court dealt with and discussed the entire evidence adduced during trial, including the evidence of the Rent Control Inspector who had visited the suit premises in connection with a proceeding earlier initiated between the parties before the Rent Controller, and concluded that one of the three alleged subtenants viz. Zinda Hasan was in possession of the verandah of the demised premises and was carrying on his business. It further found that the said subtenant was in possession with the consent and approval of the tenants but without the consent of the landlord. In the second appeal the High Court also considered the evidence and agreed with the finding of the first appellate court that Zinda Hasan was in exclusive possession of the premises in question. The above concurrent finding of fact, based on proper appreciation of evidence, cannot be disturbed in this appeal.

5. The other contention raised on behalf of the appellants was that even if it was assumed that there was parting with possession still it could not be said that the appellants had sublet the premises as there was not an iota of evidence to prove that rent was a consideration for the grant. On this aspect of the matter, while the first appellate court recorded the following finding : "From the facts discussed above, it is proved that the subtenant was not sitting in the verandah with the consent of landlord. It is rather proved that he had been occupying with the consent of the tenant-defendant. It can be presumed in the circumstances of the case that he has been occupying as subtenant." The High Court stated as under:

I am clearly of the view that in the absence of any plea or reliable evidence suggesting any other kind of legal relationship existing between the defendant and those persons and on the finding that Zinda Hasan and others were in exclusive possession of the premises in question the lower appellate court was fully justified in concluding that the appellants had sublet the premises."

6. The findings so recorded are in conformity with the following observations made by this Court in the case of Rajbir Kaur v. S. Chokesiri and Co.{(1989) 1 SCC 19) "If exclusive po