S.P. Khare, J.

This is Defendants' second appeal u/s 100, CPC Code. Arguments on the question of admission heard.

Plaintiff's suit for eviction has been decreed under Sections 12(l)(b) and (f) of the M.P. Accommodation Control Act, 1961 (hereinafter to be referred to as 'the Act'). This decree is assailed in this second appeal.

12(1)(b):

There is a concurrent finding of fact of the trial Court and the first Appellate Court that Defendant No. 1 Bhagchand has sub-let the suit accommodation to Defendant No. 2 Ashok Kumar, who is his brother. The Defendant No. 2 is carrying on his business in the name of "Ashok Agency" and he is the Proprietor of this business. The first Appellate Court has held in para 13 of its judgment on the basis of admission of the Defendant No. 2 in his cross-examination that he is carrying on his business independently and his brother, the Defendant No. 1 has "no relation with the Defendant No. 2." Thus, according to this finding, Defendant No. 2 Ashok Kumar is incharge of the business which is being run in the name of Ashok Agency and Defendant No. 1 Bhagchand has no control over that business. It is important to note that Defendant No. 1 Bhagchand has not entered into the witness box to explain how Defendant No. 2 Ashok Kumar has been inducted into the shop in dispute. On this finding the first Appellate Court relying upon the decision of this Court in Kishanchand Vs. Ramkrishna Vaishya, has held that the Defendant No. 2 is the sub-tenant of Defendant No. 1. It has been held by this Court in the said decision: "even a brother can be a sub-tenant and mere relationship, without more, would not detract from attracting the mischief contemplated by Section 12(1)(b) and Section 14 of the Act.

The law on the point whether the tenant has sub-let or parted with the possession of the suit accommodation has been succinctly stated by the Supreme Court in M/s. Bharat Sales Ltd. Vs. Life Insurance Corporation of India, : "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 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 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 delivery of exclusive possession to infer that the premises were sub-let."

Learned Counsel for the A