The burden of proof to establish subtenancy is on the landlord, and the court may affirm an eviction decree if the landlord successfully demonstrates the creation of subtenancy.

JUDGMENT :

Vishal Mishra, J.

1. With consent of the parties the matter is heard on admission.

2. The present appeal under Section 100 of CPC has been preferred by the appellant against the judgment and decree dated 30.06.2014 passed by the III Additional District Judge, Gwalior in Civil Appeal No. 10-A/2014 confirming the judgment and decree dated 28.09.2012 passed by Vth Civil Judge, Class-I, Gwalior in Civil Suit No. 44-A-A/2011.

3. It is alleged by learned counsel for the appellant that the plaintiff-respondent-landlord has filed a civil suit for eviction with respect to the premises i.e. non residential accommodation situated in Ganj Morar, Gwalior. It is alleged that the plaintiff is a owner of the property in question and the aforesaid property has been given on rent @ Rs. 800/- per month to the defendant/tenant. It is submitted that the defendant-appellant is in habit of not paying the rent on regular basis and he has created a subtenancy in the premises in question and has given the shop in question to one Atish Kumar Jain who is carrying out the business of grains in the aforesaid shop in question. Therefore, the eviction civil suit was filed for on two grounds non-payment of rent timely and on the basis of Section 12(1)(b) of M.P. Accommodation Control Act (for short 'Accommodation Act') creating a subtenancy.

4. The defendant by filing the written statements has denied all the plaint's averments and contending therein that the rent is being deposited and no subtenancy is being created, he himself is carrying on the business in the premises in question. The trial Court has framed as many as five issues, and after getting evidences from the rival parties and after providing opportunity of hearing to them, has finally decided the civil suit vide its judgment and decree dated 28.09.2012 and has found that the property in question is being given on subtenancy to Atish Kumar Jain who is carrying out the business activities and the defendant has created a subtenancy in the matter. In such circumstances, the decree of eviction dated 28.09.2012 was granted in favour of the plaintiff and the defendant was directed to handover the vacant possession of the property to the plaintiff/respondent within a period of one month. The appeal was preferred by the defendant which was registered as Regular First Appeal No. 10-A/2014 on the ground that the learned trial Court has not appreciated the evidence correctly. Appellate Court has affirmed the judgment and decree passed by the trial Court despite of the fact that there are clear denial with respect to the averments of the plaints as well as evidences available on record. It is submitted that Atish Kumar Jain is working as a Palledar in the shop in question and entire business is being carried out by the defendant only. In such circumstances and without appreciating the evidence available on record, the trial Court has wrongly passed the judgment and decree. The Appellate Court after hearing the parties at length and going through the entire record of the trial Court has affirmed the judgment and decree passed by the learned trial Court and has held that there is no illegality in the judgment passed by the learned trial Court and accordingly, has dismissed the appeal vide its judgment and decree dated 30.06.2014. Being aggrieved by the judgment and decree passed by the both the Courts' below, the present second appeal has been filed. It is argued that no grounds of granting eviction decree under Section 12(1)(b) of Accommodation Act is made out as from the evidences available on record, the same is not proved.

5. He has drawn attention of this Court to the statement of PW/1 particularly, para 10, 11, 12 and 19, wherein he has specifically denied that Atish Kumar Jain is being handed over the property in question and he is carrying out the business. Further he has drawn attention of this Court to statement of PW/2 particularly paras, 5, 6, 9 and 10, wherein, who has supported the version of