Delhi High Court
Surinder Bala vs Satpal Chandha And Anr. on 3 December, 1990
Equivalent citations: 43(1991)DLT307
JUDGMENT Sunanda Bhandare, J.
(1) This second appeal is directed against the order of the Rent Control Tribunal dated 27th May 1980 the facts of the case in brief are as follows: A petition was filed by the respondent-landlord herein for eviction of the appellant from premises bearing No. S-360 Greater Kailash, Part I, New Delhi on the ground of sub-letting under Section 14(l)(b) of the Delhi Rent Control Act. It was alleged in the petition that the appellant had sublet the premises to one Shri Madan Lal, i.e., respondent No. 2 herein. The respondent No. I made the following averments in paragraph 18(a) of the petition and claimed the following relief: "18. (a) That the respondent No. 1 has sublet one room in the previous House No. S.-360 Greater Kailash, New Delhi to Shri Madan Lal-respondent No. 2 at a monthly rent of Rs. 125.00 p.m., without the prior written consent of the landlord/owner-the petitioner". 20. An order of eviction against the respondent/tenant and respondent No. 2 with respect to House No. S. 360 Greater Kailash, Part I, New Delhi as shown in the plan attached with the petition be passed. Costs of the petition be also awarded to the petitioner."
The appellant filed a written statement and denied that she had parted with possession, assigned or sublet the premises to respondent No. 2. In fact, in her written statement she stated that she did not know respondent No. 2 Madan Lal. A separate written statement was filed by Madan Lal. He stated that he was the husband of Ayha of the appellant and as such he was in possession of one room in the premises. Respondent No. 2 did not participate in the proceedings thereafter and did not lead any evidence. The Rent Controller came to the conclusion on the basis of the evidence of A.W. 3, A.W.4 and A.W. 6 that respondent No. I had proved that Madan Lal was living in the premises in dispute for some time. The Rent Controller therefore observed that since the presence of Madan Lal was proved, the onus to prove that she had not sublet the premises shifted on the appellant and she having failed to give any satisfactory explanation for Madan Lal's presence, respondent no. I was entitled to eviction on the ground of subletting. Accordingly an order of eviction was passed on 23.4.77. The appellant, therefore, filed an appeal under Section 38 of the Delhi Rent Control Act. The appellate court observed that from the statement of A.W. 4 i.e., the Ration Shop owner it was proved that respondent no. 2 had drawn ration from his shop from June 1973 to August 1973. From the statement of A.W. 5 it was established that a Fir was lodged with the Police Station by Madan Lal and from this evidence it was clear that Madan Lal was present in the property in question. The Tribunal further observed that since Madan Lal's presence was proved and appellant has failed to explain the presence of Madan Lal the necessary inference has to be drawn regarding sub-letting. The Tribunal, therefore, by the impugned order dismissed the appeal filed by the appellant.
(2) It was submitted by the learned counsel for the appellant that for proving subletting it is necessary to show that the tenant had divested himself not only of the physical possession of the premises but also of the right of possession. Learned counsel submitted that from the evidence it is clear that the appellant continued to be in possession all through. The witnesses produced by respondent no. I particularly, the evidence regarding Ration Card and Fir did not prove the presence of respondent no. 2 in the premises in question. Great emphasis was laid by the learned counsel for the appellant on the evidence of respondent no. I himself to show that he took a contradictory stand in his evidence. Counsel submitted that Fir and the register maintained by the Ration Shop owner did not have any evidentiary value as to residence. Counsel submitted that the ration was drawn by respondent no. 2 only for two months, i.e. June to August 1973 and thereafter it was cancelled. The petition for eviction was filed in September 1973 which showed that the entry in the Register of the Ration Shop owner was manipulated. Respondent No. I did not prove the ration card, but only proved the Register of the Shopkeeper and that too, not through a Rationing Inspector, but only by the shop owner. Learned counsel further submitted that Fir was allegedly lodged .on 15th April 1973 by Madan Lal himself. The constable who wrote the report was not produced. Counsel submitted that respondents 1 and 2 are in collusion with each other. Collusion is evident from the statement of the landlord, respondent no. I himself, who had stated that the alleged sub-tenant met him and be also knew his wife and children. Learned counsel further submitted that respondent no. I failed to file the replication, to the written statement filed by respondent No. 2 and as such had indirectly admitted that Madan Lal was the - husband of the Ayha of the appellant. Counsel further submitted that the premises in question consist of two rooms and a varandah etc. The appellant is a single lady with four daughters. Thus, it was highly improbable that she would sublet one room from the small accommodation to any third party, particularly, when two of her daughters were at a very sensitive age. Counsel submitted that the whole evidence led by the respondent is unbelievable and the findings of both the courts below are perverse.
(3) On the other band, learned counsel for the respondent submitted that this court cannot re-appreciate the evidence in a second appeal and since there are concurrent findings of fact interference by this court is not called for.
(4) Section 14(l)(b) of the Rent Act gives a right to the landlord to seek eviction of a tenant if the tenant has on or after 9th June 1952 sublet assigned, or otherwise parted with possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
(5) The Supreme Court in Dipak Banerjee v. Smt. Lilabati Chakroborty, has observed that : "in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly 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."
(6) In Jagannath (deceased) through LRs. v. Chander Bhan and others the Supreme Court held: "It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with the possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act."
(7) The Supreme Court in another judgment in the case of Gopal Saran v. Satyanarayana, has held that : The question whether there is a tenancy or license or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. Parting of the .legal possession means possession with the right to include and also right to exclude others. Sub-letting means transfer of an exclusive right to enjoy the property in favor of the third party. Assignment means a "a transfer or making over to another of the whole of any property, real or personal, in possession or in action or of any estate or right therein".
(8) It is true that ordinarily this court does not re-appreciate the evidence in a second appeal. However, this court can interfere even with concurrent finding of fact if it comes to the conclusion that the reasoning of the courts below is against settled principles of law or the findings are perverse. In the present case, the landlord alleges that the appellant has parted with part of the premises, i.e., one room. This one room is alleged to have been sublet to respondent No. 2 Madan Lal. The appellant not only denied subletting, but also stated that she even does not know Madan Lal. In order to prove the presence of Madan Lal in the one room of the said premises the landlord has produced the evidence of A.W. 2, Padma Vishwanathan who is a relation of the landlord being the sister-in-law of the landlord's sister. She has stated in her evidence that she had gone to the disputed premises. She could not find the appellant there, but she met a lady whose name she did not remember. That lady told her that she was paying rent of Rs. 125.00 to the appellant. She further stated that she knows the husband of that lady who was running Pakora shop. This witness does not tell why she went to the disputed premises, nor does she disclose the name of the person who owns 'Pakora shop' though she says that she knew the lady who told her that she was paying Rs. 125.00 per month rent to the appellant. This witness admits to be very close to the landlord's brother-in-law and is a regular visitor to his house atleast once in a week. She does not prove the presence of Madan Lal in the premises. Another witness Prit Pal Gupta admits to be related to Madan Lal. He states that he had not seen Madan Lal paying rent to the appellant nor was he present at the time of letting. He states that Madan Lal visited him in 1972 and at that time he mentioned that he wanted to take some premises on rent. This witness however admits in his cross-examination that Madan Lal was running a tea-shop in the village previously and even on the date his statement was recorded he was running a tea-shop in the village, but states that Madan Lal owned a tea-shop in Delhi for about 8 to 9 months. The Landlord also examined A.W. 4 one Shri C.R. Gupta who is the proprietor of Grocery and Ration Shop in Greater Kailash. He stated that Madan Lal drew ration from 6th June 1973 to 7th August 1973 and he had given the address as S-360 Greater Kailash, New Delhi. He stated that Ration Card of Madan Lal was cancelled thereafter. He produced the register maintained by him. Landlord has examined A.W. 5 a constable from the Police Station at Greater Kailash to prove the FIR. alleged to have been lodged by Madan Lal. He stated on oath that the police did not take any action un the report lodged by Madan Lal. This witness has stated that he had not written the report, but the report was written by some other constable. He does not know who is Madan Lal. The landlord examined himself as A.W. 6. He stated on oath that he visited the house of the appellant in April 1973 and he came to know about the sub-tenancy in May 1973. He saw a lady in the front side bed room burning a stove and some children were playing there. He stated that it was only thereafter that he came to know that some Madan Lal was staying in the premises. He admitted in his statement that he knew Madan Lal since June 1973 and Madan Lal had visited his house and also was carrying on correspondence with him from Nirvana. He has also seen Madan Lal's wife and children. He admits that at the time when statement was being recorded, Madan Lal was not living in the premises in dispute. He admitted in his evidence that even summons in the suit were served on Madan Lal at his village address. He admits that Madan Lal himself told him about the report lodged by him with the police though he states that he had met Madan Lal only at the time when the appellant had disconnected the water and electricity supply of Madan Lal.
(9) On reading the evidence led by respondent No. I, I find that none of the witnesses has actually seen Madan Lal in the premises. The tenor of the statements makes the whole story unbelievable. The evidence is not only uninspiring but appears to be false and tutored. On reading this evidence, it is obvious that all the witnesses who gave evidence are related or known to respondent No. I, landlord and far from independent. They contradict each other. The evidence of the landlord himself is also contradictory and uninspiring. The evidence of the shopkeeper and the F.I. R. does not prove the presence of Madan Lal in the disputed premises. A.W. 4 did not produce the ration card, but produced the register maintained by himself. On perusal of the register I find that it contains several blanks, and it is not difficult to fill a name in the blank space. None from the rationing office was examined to prove that in fact Madan Lal had a Ration Card with that address. Just on the basis of the register it is even difficult to accept that Madan Lal actually had a ration card on that address. This coupled with the fact that the ration card was valid only for two months and no one knows what has happened to that ration card now makes the whole story unbelievable. It my view, the Fir also could not be relied upon to prove the presence of Madan Lal. Apart from the fact that Fir does not have any evidentiary value as held by the Supreme Court in Dharma Ram Bhagare v. State of Maharashtra, , the constable who wrote the Fir was also not examined. Excepting one witness, i.e. A.W. 3, none of the witnesses have seen Madan Lal in the premises. A.W. 3 was not present when Madan Lal got the house on rent nor was he present at the time of letting or when Madan Lal paid the rent. Though this witness stated that he visited Madan Lal at the said premises he does not give either the date, time and the purpose of his visit. The evidence of this witness does not appear to be truthful because he has contradicted himself at several times.
(10) Moreover, respondent No. I did not choose to file a replication to the written statement filed by Madan Lal. This also shows that Respondent No. I accepted the version of Madan Lal that he was the husband of the Ayah of the appellant. If that be so, there is no question of any further explanation by appellant regarding the presence of Madan Lal in the premises Nonappearance of Madan Lal after he filed the written statement and the fact that the landlord did not choose to examine Madan Lal though he was constantly in touch with him even after he shifted back to the village makes the position more doubtful.
(11) I am constrained to say that in the present case, both the courts below have been completely misled and both the judgments are not only against the settled principles of law but are based on no evidence at all. There is no evidence in the present case to prove the presence of Madan Lal in the premises or that the appellant parted with possession of one room to Madan Lal. There is also no evidence that Madan Lal paid any rent to the appellant. In my view, both the courts below committed an error in placing the burden on the tenant to explain the presence of Madan Lal in the premises. If presence of Madan Lal was proved then only the question of explaining why he was present would arise. Since both the courts below came to the conclusion of creation of sub-tenancy without considering the essential ingredients for finding of fact as to sub-tenancy, I find it difficult to uphold their findings.
(12) In the circumstances, the Second Appeal is allowed. The judgments of the Rent Control Tribunal dated 27th May 1980 and of the Addl. Rent Controller dated 23rd April 1977 are set aside and the eviction petition filed by Respondent No. I is dismissed.