The evidence of allowing another person to run a business in the rented premises was sufficient to show sub-tenancy, leading to the presumption that the defendant had sub-let the premises.

P.R. Sharma, J.

1. This is a defendants' second appeal against the judgment and decree dated the 8th of March 1960 passed by the First Addl. District Judge, Gwalior, in Civil Appeal No. 23 of 1960, whereby he reversed the judgment and decree dated 8-8-1958 passed by the 2nd Civil Judge Class II, Gwalior in Civil Original Suit No 331 of 1957.

2. The suit out of which the present appeal arises was filed by the respondent for ejectment of the present appellant from a shop on the grounds that he required it for his personal use, that the defendant was in arrears of rent and that he had sub-let the shop.

3. The trial Court dismissed the suit, but on appeal the decree passed by the trial Court was reversed and the plaintiff's suit was decreed.

4. The only point urged by the learned counsel for the appellant in support of this appeal is that there is no evidence in the case to show that Rajaram had given exclusive possession of the shop to Kishan or that he had legally divested himself of his right to use the same. Reliance was placed by the learned counsel in support of this proposition on the case of Naraindayal vs. Deepchand (1955 MBLJ 2076) wherein it was held by Dixit J (as he then was) that the mere fact that a person is allowed to use the premises while the lessee retains legal possession is not enough to create a sub-lease.

5. The facts of that case were not similar to those of the present case. In this case the defendant was a tenant only in respect of a shop The evidence led by the plaintiff in the case, which was relied on by the lower appellate Court, was to the effect that the defendant had started working in another shop, that Kishan had occupied the shop and was making use of it for running his own business. This evidence is to my mind sufficient to show that Kishan was in exclusive possession of the shop. The mere fact that Kishan is a cousin of the defendant would not in my opinion be enough to show that he is using the shop on behalf of the defendant or that they are both in joint possess on of the same.

6. A case somewhat similar to the present case is to be found in Santoshilal vs. Chandramohan (AIR 1956 MB 121). In that case a portion of the premises which the defendant had tenanted was found to be in the possession of another person who had opened a shop therein. It was held that these facts would lead to a presumption that the defendant had sub-let a portion of the premises.

7. Sub-tenancy can hardly ever be proved by the direct evidence of persons in whose presence the terms of sub-tenancy were settled. It will in most cases be a matter of inference to be drawn from the facts of each case. It is, therefore, not possible in my opinion to lay down any hard and fast rules as to the circumstances which could in every case be deemed to be sufficient to give rise to a presumption of the existence of a sub-tenancy. For instance where the premises are being used for residential purposes, the mere fact that a relative or even a friend is allowed temporarily to occupy a portion of the rented premises will without any thing more, be altogether insufficient to give rise to a presumption that the premises or a portion thereof have been sub-let. But in a case like the present where the only use of the rented premises was for the purposes of running a shop therein; if the defendant closes his business and allows another person to run his own shop therein, it would not be wrong to presume that he has sub-let the premises. In such a case facts specially within the knowledge of the defendant and the sub-tenant from which it could be shown that the defendant still has a subsisting interest in the business run on his behalf by another person in the shop and that he has therefore, be deemed to be in possession thereof must be led by the defendant.

In the present case Kishan was not examined as a witness by the defendant in order to show that he was running the business of mounting frames on pictures on behalf of the defendant.

8. I