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In the premises the question arises whether the High Court was right in law. It is true that in second appeal no court, and in the instant case the High Court should not interfere with the concurrent findings of facts. It was rightly pointed out and it is well-settled law by this Court not to interfere with the concurrent findings of facts. This was reiterated by this Court in Smt. Krishnawati v. Shri Hans Raj, A.I.R. 1974 S.C. 280 where this Court observed that on the concurrent finding of the fact where no question of law arises, the High Court should not interfere. It was further high-lighted before us that the question of sub- tenancy in a situation like the present, is an inference drawn from a certain conduct. But in order to prove tenancy or sub-tenancy two ingredients had to be established, first- ly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent. In Associated Hotels of India Ltd. Delhi v. S.B. Sardar Ranjit Singh, [1968] 2 SCR 548 this Court reiterated that on the question whether the occupier of a separate apartment in a premises was a licensee or a tenant, the test was whether the landlord had retained control over the apartment. Nor- mally an occupier of an apartment in a hotel was in the position of licensee as the hotel-keeper retains the general control of the hotel including the apartment. But it is not a necessary inference of law that the occupier of an apart- ment in a hotel is a tenant. A hotel-keeper may run a first class hotel without sub-letting any part of it. Where the hotel-keeper retained no control over the apartment, the occupier was in the position of a tenant.

The question in this case is whether the alleged sub- tenant was in exclusive possession of the part of the prem- ises and whether the tenant had retained no control over that part of the premises. There is no evidence on the fact that the alleged sub-tenant was in exclusive occupation of any part of the premises over which the tenant had not retained any control at all. On this aspect neither was there any pleading nor any evidence at all. No court gave any finding on this aspect at all. In that view of the matter one essential ingredient necessary for a finding, the case of sub-tenancy has not been proved. If that is so, the trial court, the first appellate court and the High Court were in error in holding that the sub-tenancy was proved. Our attention is drawn to this Court's decision in Sachindra Nath Shah v. Santosh Kumar Bhattacharya, A.I.R. 1987 SC 409 where paying guests were occupying a portion of the premises, this Court reiterated that finding of fact regarding those persons would not be interfered with. But where the finding has been arrived at without finding the basic facts, it cannot be sustained.

There is another aspect of the matter, i.e., the payment of rent for sub-tenancy or consideration for sub-tenancy. Undoubtedly the alleged sub-tenant rendered certain services to the tenant but can the same be considered as rent under the Rent Act? Section 14(1) of the said Act prohibits sub- tenancy and it was pointed out before us that receipt of service in lieu of the occupation of a part of the premises as a Iicensee did not amount to payment or receipt of rent. Sub-tenancy as such is not defined in the Act. The sub- tenancy under the Transfer of Property Act, 1882 is governed by section 105 of the said Act and it defines sub-leases as a lease of immovable property as a transfer of right to enjoy such property, made for a certain time, express or implied. or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

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There is no clear evidence in the instant case as to what kind of sewing Lalit Mohan Biswas used to perform for the tenant, on the other hand, he did perform some work which could be considered to be in lieu of his right to occupy the portion of the premises, if so this may be sub- lease in terms of section 105 of the Transfer of Property Act. But is it in lieu of consideration as contemplated under the Rent Act. The question is, whether in the context of the provisions of Rent Act, can services be consideration for sub-tenancy? In other words whether in view of the provisions of the Rent Act services can be a good or any consideration for sub-lease is the question. We are of the opinion that it cannot be. See in this connection section 4 of the Rent Act, and the different sub-sections of that section, section 5, especially section 5(b). These enjoin that excess over fair rent to be irrecoverable, put restric- tion on claim, demand or receipt of premium or other consid- eration. Section 8 is also relevant in this connection, see also section 9. Sections 2(h) and 2(d) also indicate money consideration. Section 13(j) and section 13(i) cannot be anything but money. Section 17(1) and section 17(2) and 17B also militate against the concept that services in lieu of money can be consideration. It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub-tenancy. This frustrates and defeats the purpose of the Rent Act. Take for instance a case where a person renders services to the landlord in lieu of rent but this will completely erode the provisions of Rent Act and defeat the claims for services. Work performed by sub-tenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of Agricultural Tenancies. But in urban area in civilized time that cannot be so. The Rent Act, 1956 cannot be fitted into a position where the serv- ices can be rendered in exchange of the right of occupation. This question arose in England in the case of Barnes & Another v. Barratt and another., [1970] 2 All E.R. 483. There the defendants occupied part of the house which was let to C. The defendants had exclusive use of three rooms and a kitchen while C had similar use of two rooms. The bathroom was shared. In return for their use of the above mentioned accommodation the defendants cleaned part of the house, cooked for him and paid electricity, gas and fuel bills for the whole of the house. On more than one occasion C refused to accept any payment of rent. The arrangement continued from 1951 until C's death in February, 1969. The interests of C were then surrendered to the plaintiffs who were the landlords. The plaintiffs claimed possession of the whole house. The county court judge ruled that the defend- ants were tenants within the protection of the Rent Acts, and were not licensees, since the services rendered by defendants, according to the county court judge constituted rent. The court of appeal in England held that the defendants were granted personal privilege of occupation and not tenancy. It was further held that even if there was a tenancy, the Rent Acts did not apply to it, because there was no agreed monetary quantifi- cation of the rent nor any agreed method of quantification. Sachs LJ. observed at page 484 of the report as follows:-