( 1 ) THE petitioner tenants have preferred this petition against the judgment and order passed by the lower appellate Court dated 25th October, 1993 dismissing the appeal No. 7 of 1992 and confirming the order passed by the Trial Court dated 5th October, 1991 whereby the petitioners were directed to hand over the vacant and peaceful possession of the suit premises to the present respondents.

( 2 ) I have heard the learned counsel for both parties. Perused the record.

( 3 ) THE original plaintiff had filed the suit for possession of the suit premises i. e. Block No. 2, "anupam" situated at 777 Tilak Road, Dadar, Bombay - 400 028 against the original tenant Vasant G. Thakur (defendant No. 1) and his sister-in-law Mrs. Rajani talwalkar (sister of 1st defendants wife) as the 2nd defendant. The plaintiff had claimed possession on two grounds, namely, (i) that the tenant had acquired suitable alternative accommodation and (ii) defendant no. 1 had sublet the premises to defendant No. 2. The plaintiffs case was based on the fact that the 1st defendant was an Under Secretary to the State Government and was given Government accommodation being Govt. Bungalow No. 7, Opp. Sachivalaya and was required to shift to the said bungalow alongwith his family members in June, 1973. On the death of the original 1st defendant in 1990, the present petitioners were brought on record as legal heirs and representatives of original defendant No. 1. The original defendant No. 1 had stated in his evidence that defendant No. 1b i. e, first petitioner was staying with the tenant since 1958 continuously as a member of his family. On pleading of both parties, the trial proceeded and the trial Court, after considering the evidence on record, decreed the suit on the ground that the 1st defendant had acquired suitable residential accommodation. However, the Trial Court held that the plaintiff had failed to prove that the defendant No. 1 had unlawfully sublet the premises in favour of the defendant No. 2. The appeal was carried to the lower appellate Court. The lower appellate Court was of the view that the findings recorded by the Trial Court on the ground of residential accommodation was required to be evicted and further it was also held that subletting was proved. In the result the appeal was dismissed and cross-objection filed by the respondent came to be allowed. Hence the present petition.

( 4 ) THE learned counsel for the petitioner submitted that though there are concurrent findings of both the courts below on the ground of acquisition of suitable accommodation, there was conflicting finding on the point of subletting. On this back ground, it would be proper to address both points separately.

( 5 ) ON the question of subletting, it was submitted on behalf of the petitioner that pleadings and evidence on record show that defendant No. 2 who was sister-in-law of defendant No. 1 was gratituously allowed to occupy the suit premises when defendant No. 1 shifted to Government accommodation. The Trial Court observed that, during the pendency of the suit, defendant No. 1 re-occupied the suit premises and defendant No. 2 left the same and went to reside at Palghar. The petitioner submit that the said observation showed that defendant No. 2 was temporarily allowed to occupy the suit premises to take care of the suit premises and there was no parting with possession of the premises. The original 1st defendant tenant had specifically denied in his evidence that he had sublet the suit premises since he had not recovered any rent or compensation. The Trial Court had further observed that there was no evidence of consideration. Therefore, the Trial Court was of the opinion that no consideration was paid to defendant No. 2 by defendant no. 1 towards occupation of the suit premises and, therefore, the burden was cast upon the landlord to prove consideration which was not discharged and, therefore, the landlord failed to prove the alleged unlawful subletting and the trans

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