Delhi District Court
Sh.Jaspal Singh Uppal vs Bajrang Bali Singh on 25 February, 2020
IN THE COURT OF SHRI DINESH KUMAR SHARMA
DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL
NEW DELHI
In the matter of :
RCT No.154/2016
CNR No.DLND010006432014
Sh.Jaspal Singh Uppal
Since deceased
Now Represented by LR
(i)Smt.Amrit Uppal
Widow of Late Sh.Jaspal Singh Uppal
R/o H100,Connaught Circus
New Delhi. .....Appellant
Versus
Bajrang Bali Singh
S/o Late Sh.U.R.Singh
Shop No.H32/1
Connaught Circus, New Delhi. .....Respondent
Date of filing : 16.09.2014
Date of arguments : 13.02.2020
Date of judgment : 25.02.2020
JUDGMENT
1. Vide this judgment, I propose to dispose of the present appeal filed u/S 38 of The Delhi Rent Control Act,1958("DRC RCT No.154/16 Page No. 1 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh Act" in short) by the appellant challenging the impugned order dated 16.08.2014 by which the Ld. Rent Controller dismissed the eviction petition u/S 14(1) (b) & (d) DRC Act.
2. The appellant/petitioner therein filed an eviction petition u/S 14(1)(b)(c) & (d) DRC Act. However, the ground u/S 14 (1) (c) DRC Act was dropped and the petitioner maintained the eviction petition only u/S 14(1) (b) & (d) DRC Act. The facts in brief as alleged in the eviction petition are that the premises in dispute i.e. H32/1, Connaught Circus, New Delhi was let out to the respondent for residential purposes at the monthly rent of Rs.15/pm. The appellant/petitioner stated that the respondent sublet,assigned and parted with possession of the premises in dispute to one Sh.Anand Sharma who is running his liasioning business from a portion of the premises in dispute while another person whose name could not be ascertained has started courier agency with some kind of agreement/arrangement with DTDC Courier. The appellant/petitioner further alleged that the respondent was neither in possession nor in control of the premises in dispute and the same is in exclusive possession and complete control of the subtenants. It was further alleged that neither the tenant nor any member of his family has been residing RCT No.154/16 Page No. 2 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh therein in the premises in dispute for a period of more than six months immediately before the filing of the present petition.
3. The respondent in his written statement denied all the averments and stated that the premises in dispute was let out for composite purposes and he is in exclusive possession of the premises in dispute. The respondent submitted that infact apart from his residence, his son is running/using the said premises for his tour and travel business under the name and style of M/s Aver Overseas. The respondent vehemently denied that he sublet the premises in dispute/parted with possession of the premises to Sh.Anand Sharma or to any courier company.
4. In replication, the petitioner reiterated that the premises was let out for residential purposes. Petitioner submitted that even if the son of the respondent is carrying on his tour and travel business from the premises in dispute, it amounts to subletting. The petitioner examined himself as AW1 and tendered his affidavit wherein he stated that the respondent has illegally, unauthorizedly and without his consent in writing has sublet, assigned or parted with possession of the premises sometime in the year 2008 to one Sh.Anand Sharma who is running his liaison business from a portion of the premises in RCT No.154/16 Page No. 3 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh disputes while a portion is being used by another person who is carrying on courier business by booking courier under DTDC couriers. The appellant/petitioner stated that neither the respondent nor any authorized person is in possession of the premises. The appellant/petitioner also denied that the son of the respondent is running/using the premises for his tour and travel business under the name and style of M/s Aver Overseas. It was specifically stated that the son of the respondent is not carrying on any business from the premises and infact the tenant has sublet, assigned or parted with the possession of the premises in dispute. The petitioner/appellant stated that neither the respondent nor any member of his family has been residing in the premises in dispute for a period of more than six months immediately before filing of the present petition and to his knowledge since 2008. In the cross examination of petitioner, it came that summons of the petition were served on the address mentioned in the petition filed in this court. The petitioner admitted that the wife of the respondent also resides alognwith the respondent. Further in his answer to the specific question, the petitioner stated that the respondent and his family members used to reside at the premises six months prior of the filing of the present eviction petition. The petitioner admitted that the RCT No.154/16 Page No. 4 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh electricity connection has been installed in the name of the respondent. The petitioner reiterated that the respondent has handed over the possession of the premises to Sh.Anand Sharma and one courier company which is not run by Sh.Anand Sharma. The petitioner was not aware who runs the courier company at the premises. The petitioner stated that in the site plan Ex.AW1/1, it has been referred to as shop by mistake. It is pertinent to mention here that in the cross examination, the petitioner stated that he has no knowledge if the ground floor, Connaught Place can be used for composite purpose.
5. Respondent appeared as RW1 and tendered his evidence by way of affidavit. The respondent specifically stated on oath that the premises in dispute was taken on rent of Rs.15/ per month for composite purpose and since then it is in use and occupation of the respondent. Respondent stated that the electricity meter is installed in his name and he is paying electricity charges regularly as per consumption. The electricity bills are Ex.RW1/8 to Ex.RW1/12. Respondent stated that the the premises in question is in his use and occupation and besides that his son is also running his business from the said premises. A copy of the bank certificate and passport are Ex.RW1/13 to RCT No.154/16 Page No. 5 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh Ex.RW1/14. The respondent submitted that he has neither sub let nor assigned nor parted with possession of the premises to anyone else. The respondent stated that the premises consist of shop on the ground floor with mezzanine and it was let out to him for composite purpose. In the cross examination, the respondent admitted that the electricity connection was sanctioned for domestic light.He voluntarily stated that though he had applied for change of user from domestic to commercial but it was not permitted by the authorities. He again stated that he had never applied for enhancement of load. It also came in the testimony of the respondent that the water connection in the premises was for commercial user however, it was installed in the premises in the name of Gheomal & Sons, the firm which was earlier in existence/ occupation of the premises. He did not get the same transferred in his name. He also got his ration card from the premises in dispute and got himself enrolled as Voter from the premises in dispute and Voter identity card was issued in his name. The respondent produced the original Voter I Card issued in the year 1995. The respondent stated that his son is sole proprietor of M/s Aver Overseas. The respondent also stated that he alone resides in the premises and his son alongwith his family is residing somewhere in Rohini. The respondent also stated that RCT No.154/16 Page No. 6 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh the electricity bill as well as other charges payable to NDMC are paid by his son. It also came in cross examination of the respondent that there is no latrine or bathroom in the premises in dispute. The respondent admitted that his son is using the premises in dispute for commercial purposes and there is no separation of portions for commercial activity and for his residence. The respondent denied the suggestion that he has sublet, assigned or part with possession of the premises in dispute to a third person and his son is not carrying on the business from the premises in dispute.
6. Ld.Rent Controller after taking into account the factual matrix on record, the evidence as well as the submissions of the parties, dismissed the petition u/S 14(1)(b) DRC Act on the ground that the appellant/landlord miserably failed to prove that the tenanted premises was sublet, assigned or parted with possession by the respondent. The petition u/S 14(1) (d) DRC Act was also dismissed as under the said clause, eviction can be sought with respect to premises let out for residential purposes only and not for nonresidential/composite purpose and in the present case, the petitioner miserably failed to prove that the tenanted premises was let our for residential purposes only.
RCT No.154/16 Page No. 7 of 21Jaspal Singh Uppal vs Bajrang Bali Singh
7. Aggrieved by this, the landlord/appellant has challenged the impugned order on the ground that the Ld.Trial Court has not correctly appreciated the evidence and illegally dismissed the eviction petition. The Ld.Trial Court wrongly held that the appellant/landlord has failed to discharge his initial burden of proving the subletting as well the purpose of letting despite specific evidence lead by the appellant in this regard. The appellant stated that since the Ld.Trial Court awfully failed to appreciate that in case if third party's presence is admitted by the tenant in case of sub letting, the entire burden of proving the status of the third party solely lies upon the tenant. Appellant also stated that the respondent concealed the material facts and did not produce any evidence regarding business activity being carried on by his son. The appellant also stated that the Ld.Trial Court awfully failed to consider that even handing over the exclusive possession to his son amounts to sub letting. Ld.Counsel for the appellant submitted that the Ld.Trial Court has committed grave illegality in dismissing the eviction petition filed by the appellant/petitioner. Ld.Counsel submitted that it has been admitted by the respondent/tenant that his son is running business from the premises in dispute and is the sole proprietor of the firm. Ld.Counsel for the appellant also submitted that the RCT No.154/16 Page No. 8 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh Ld.Trial Court totally ignored the fact that even respondent admitted in the cross examination that the electricity and other charges payable to NDMC are paid by his son. It has been submitted that it has also came in the cross examination of respondent that even his son is not residing alongwith him in the premises in dispute and therefore, it cannot be a case of permissive user.
8. Ld.Counsel for the appellant has relied upon Joginder Singh Sodhi Vs Amar Kaur, 2005(58) ALR 683. In this case, the eviction petition was filed on the ground of nonpayment of rent and sub letting. The plea of the tenant was that they were neither in arrears of rent nor the premises was sub let. It was asserted that the premises was taken on rent by the father for his son. The ground of non payment of rent was not pressed. Ld.Rent Controller returned the finding that the premises in dispute was let out by the father to the son. The appellate authority also agreed with the findings of the Ld.Rent Controller and it was found that the son was in exclusive possession and he was running the business of photography. The Ld.Rent Controller and appellate authority held the concurrent finding that the father and son were staying separately. Against the eviction order, a RCT No.154/16 Page No. 9 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh revision petition was filed in the Hon'ble High Court of Punjab & Haryana. The Hon'ble High Court also dismissed the revision petition. Hon'ble Supreme Court after relying upon the various judgments i.e. Associated Hotels of India Ltd. Vs S.B.Sardar Ranjit Singh, MANU/SC/0333/1967:[1968]2SCR548, Sharma Prashant Raje Vs Ganpatrao and Ors., MANU/SC/0609/2000:AIR 2000SC3094, Bharat Sales Ltd. Vs Life Insurance Corporation of India, MANU/SC/0131/1998:
[1998] 1SCR711, Smt.Rajbir Kaur and Anr. Vs S.Chokesiri & Co., MANU/SC/0453/1988:AIR1988SC1845, Kala and Anr. Vs Madho Parshad Vaidya, MANU/SC/0571/1998:AIR1998SC2773 and Bhairab Chandra Nandan Vs Randhir Chandra Dutta, MANU/SC/0742/1987:AIR1988SC396, interalia held as under:
"25.We are not impressed by the argument. Firstly, waiver is a question of fact which must be expressly pleaded and clearly proved. No such plea had been raised either by the tenant or by the "sub tenant' before the Rent Controller, before the Appellate Authority or even in the High Court. Such question cannot be allowed to be raised for the first time in this Court. That apart, the language of Section 13(2)(ii)(a) of the Act is clear and unambiguous. It mandates that no tenant can sublet the tenanted property or part thereof without the written consent of the landlord. In the present proceedings, it is not even the case of the tenant (deceased Mukand Singh) that he had obtained 'written consent' of the landlady to sublet the shop to his son Joginder Singh. On the contrary, his assertion that the property was taken by him for his son was not believed. Hence, order of eviction cannot be held illegal as the doctrine of waiver cannot be applied. A bald plea of waiver cannot defeat statutory provision made in larger public interest [Vide M/s Shalimar Tar Products Ltd. v. H.C. Sharma RCT No.154/16 Page No. 10 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh and Ors., MANU/SC/0785/1987:[1998] 1 SCR1023; Pulin Behari Lal v. Mahadeb Dutta and Ors.MANU/SC/0455/1993: [1993] 1SCR472]."
9. Further, Ld.Counsel for appellant also relied upon Munshi Lal vs Smt.Santosh & Ors., Civil Appeal No.1327 of 2017 of the Hon'ble Supreme Court. In this case, the landlord had filed an eviction petition against the tenant on the ground of sub letting and arrears of rent. However, the question before the Apex Court was only on the ground of subletting. The facts were that the original tenant was an old man and the son in law used to sit in the shop and conducted business exclusively therefrom. The dispute was whether he was doing business alongwith his father in law or independent of him. It was an admitted fact that consent in writing of the landlord was not obtained. It was also pleaded that the son in law was a partner alongwith the original tenant. The Ld.Rent Controller found that the partnership was a ruse and son in law was in exclusive possession of the shop and running the business on his own and passed the eviction order. The appellate authority interalia held that it could not be said that there was a parting of possession, if an alleged sub tenant was closely related to a tenant, or if he was a person whose assistance was a matter of necessity for the survival of the business of the tenant. The Hon'ble High Court concurred with the finding of RCT No.154/16 Page No. 11 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh appellate authority that that the partnership was a genuine partnership and the possession of the shop in question was not given exclusively to the son in law and mere occupation of his son in law was not sufficient to establish a case of subletting. The Hon'ble Supreme Court interalia held as under :
"12.We are satisfied that the respondentstenants have been found to have inducted the soninlaw as a subtenant for the purpose of doing business under a partnership agreement. The arrangement between Hakim Rai and his soninlaw Raj Kumar was not a casual arrangement wherein the latter was requested to conduct business at the shop because the former was old and infirm. There was no need of entering into a partnership agreement in that case."
10. The respondent in support of his contention relied upon Bhagwan P.Sanjani Vs Ranbir Singh, 29(1986) DLT 45. In this case, the Ld.Rent Controller dismissed the eviction petition. However, the appellate authority passed the eviction order on the ground that the tenant has sublet, assigned and has parted with the possession of the premises. The plea of the landlord was that tenant has sub let, assigned and has parted with possession of part of the premises to M/s Ajit (India) Pvt. Ltd. without obtaining his consent in writing. The defence of the appellant/tenant was M/s Ajit (India) Pvt. Ltd. had never functioned from the property in question and the tenant retained with him the legal and actual RCT No.154/16 Page No. 12 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh control of the property. The plea of the appellant was that he had two sisters who were residing with him and had got married. V.P.Sajnani, one of the brothers of appellant used to live with him and has a firm by the name of M/s Deluxe Tiles Manufacturing Co. and had taken a plot of land for establishing a factory at Kundli in Haryana. The loan was to be raised from Haryana Financial Corporation and he gave the address of the suit premises namely G21, Jangpura Extension for correspondence purpose only. The court after taking into account facts and circumstances interalia held as under :
"7..... This Court has repeatedly held that Clause(b) of proviso to Section 14(1) uses three expressions, namely sublet, assigned, and otherwise parted with possession. These three expressions deal with different concepts and apply to different circumstances. In subletting there exists the relationship of landlord and tenant as between the tenant and his subtenant and all the incidents of letting of tenancy have to be found namely, the transfer of an interest in the estate, payment of rent, and the right to possession as against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression parted with possession undoubtedly postulates parting with legal possession. Parting with legal possession means giving possession to persons other than those to whom possession has been given by lease and parting with possession must have been by the tenant. The mere user by other persons is no parting with possession so long as the tenant retains the legal possession himself on in other words there must be vesting of possession of the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession. Seen in this connection 1972 R.C.R.74 and Viswa Nath and Anr. v. Chaman Lal."RCT No.154/16 Page No. 13 of 21
Jaspal Singh Uppal vs Bajrang Bali Singh The Hon'ble High Court reversed the finding of the Ld.Rent Controller and interalia held that the brother of the appellant continues to live with him in the premises in dispute and tenant has never parted with possession of the entire premises. The Hon'ble High Court was pleased to take a view that merely because a telephone connection was in the name of V.P.Sajnani which was provided by his company M/s Ajit(India) Pvt.Ltd. for his residence only, will not prove that company had any connection with the property where he was residing. It was also taken on record that in 1970 when brother of appellant left the company M/s Ajit (India)Pvt. Ltd. , he was allowed to retain the telephone. After 1970, the telephone bills were paid by the appellant by cheques. The Hon'ble High Court took note of the fact that the landlord admitted in his statement that he never saw any customer of the company visiting the premises. Hon'ble High Court relied upon the case of Smt.Krishna Vati Vs Hans Raj, (1974) 1 SCC 289, wherein it was interalia held that:
"Subletting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and if one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner had let out that part of the premises."RCT No.154/16 Page No. 14 of 21
Jaspal Singh Uppal vs Bajrang Bali Singh Hon'ble High Court in Bhagwan P.Sanjani's case(Supra) concluded as under:
"9.It is wellsettled that a tenant cannot be said to part with possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. In the present case, it was never disputed by the respondent that the appellant continued to occupy the premises and retained the legal possession over the premises. The appellant appeared as his own witness and it was not even suggested that his brother was not residing with him. It was also not suggested that he had parted with possession and was no more in legal possession of the part of the premises. The case of the respondent that three clerks were working in the premises was also not put to the appellant when he appeared as his own witness. Considering the circumstances of the case, it has to be held that Mr.V.P.Sanjani had only given the address the premises for the purpose of correspondence and nothing else. This by itself cannot amount to subletting."
11. Coming to the facts of the present case, I consider that in the present case, the appellant has miserably failed to prove the case of subletting. As has been discussed above, the law of subletting is very clear. In Woodfall on 'Landlord and Tenant' 27th Edition Volume 1 page 523, it is said:
"A covenant against parting with possession in the demised premises is not broken so long as the lessee retains legal possession by allowing other person to use the premises, either under a licence or under a declaration of trust." And again "a lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part."RCT No.154/16 Page No. 15 of 21
Jaspal Singh Uppal vs Bajrang Bali Singh
12. In Bharat Sales Ltd. Vs LIC, (1998) 3 SCC 1, it was held that subtenancy or subletting comes into existence when a tenant gives up the possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof in such process. In Delhi Stationers and Printers Vs. Rajendra Kumar,(1990) 2 SCC 331, the term "subletting" was explained to mean transfer of an exclusive right to enjoy the property in lieu of payment of some compensation or rent. It was observed that "parting with legal possession" mean parting with possession with the right to include and to exclude others and mere occupation is not sufficient to infer either subtenancy or parting with possession.
13. In Parvinder Singh Vs Renu Gautam, AIR(2004) SCC 799, the three Judge Bench of the Apex Court devised as test as under:
"If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for proving a cloak or cover to conceal the transaction not permitted by law. The Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant."RCT No.154/16 Page No. 16 of 21
Jaspal Singh Uppal vs Bajrang Bali Singh
14. In Joginder Singh Sodhi Vs Amar Kaur, (2005) 1 SCC 31, the Hon'ble Supreme Court noted that as far as subletting is concerned, the two ingredients namely parting with possession and monetary consideration therefore have to be established. In Seth Narainbhai Ichharam Kurmi and Anr. Vs Barbada Prasad Sheosahai Pande, AIR 1941 Nag.357, it was observed that possession includes legal possession and unless the legal possession is parted with ejectment cannot be ordered. Bare occupation and possession are two different concepts. Possession as it is understood in legal terminology is complex one which need not include actual occupation. It comprises rather the right to possession and right and control coupled with mental element namely the animus possidendi, that is to say knowledge of these rights and the desire and intention of exercising them, if need be.
15. In G.D.Chaudhary Vs Anand Sarup, 1966 DLT 28, it was held that so long as lessee retains legal possession of whole of the premises, he does not commit a breach of law against parting with the possession by allowing other person to use the same. In Gurdial Singh Vs Brij Kishore & Ors, 1970 DLT 592, it was observed that simply because the tenant has allowed another person to use or share a premises, it does not amount to breach of RCT No.154/16 Page No. 17 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh covenant not to part with the possession of the premises. It was further explained in this case that it is not the law that no sooner does any person other than the lessee occupies a premises, it must be held that the tenant has parted with possession of the demised premises. What has to be seen in such a case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee.
16. In the present case, the petitioner approached the court stating that the respondent has sublet, assigned or parted with possession of the premises in dispute to one Sh.Anand Sharma or any courier agency working with M/s DTDC Courier. The respondent in the written statement has very honestly stated that infact his son is carrying on his business in the premises in dispute. The respondent in his evidence has stated that the premises in dispute is at the ground floor, Connaught Circus. The petitioner in his cross examination very cleverly stated that he does now know whether the premises in ground floor, Connaught Circus can be used for composite purposes. This is a matter of common knowledge that in Connaught Place on the ground floor, commercial activities are being carried out. So the ground u/S RCT No.154/16 Page No. 18 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh 14(1)(d) DRC Act does not survive in view of the fact that the landlord has failed to prove that the premises in dispute was let out for residential purposes only. The respondent in his cross examination has specifically stated that he is residing in the premises in dispute. It also came on record that the electricity connection was in his name and Voter I card was also in his name. Simply because the electricity bills or NDMC charges are being paid by his son will not amount to subletting. It is pertinent to mention here that respondent was around 64 years in 2013 at the time of recording of the evidence. It is a common practice in the society that when parents grow old, the children started shouldering their responsibility. It is a settled proposition that to prove the ground of subletting, firstly, the landlord has to prove that the premises in dispute has been sublet, assigned or parted with possession. In the present case, the petitioner has not been able to prove that the premises has been sublet by the father to his son or he has assigned in any manner, the premises in dispute to somebody else. The case of the appellant is marred by contradiction in itself. It started with the plea that the premises in question was let out to one Sh.Anand Sharma and another person who is running courier agency and ended with the plea that the son of respondent is carrying on his business in the premises RCT No.154/16 Page No. 19 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh where respondent is also residing. DRC Act is a welfare legislature and has been enacted with a view to protect the interest of the landlord and the tenant. The tenant can be evicted only if one of the grounds exist as provided u/S 14 DRC Act. It has been held in catena of judgments that mere permissive user is not sufficient to make the ground of subletting.
17. The judgment cited by the Ld.Counsel for the appellant are respectfully distinguished. In Munshi Lal's case(Supra), Hon'ble Supreme Court held that the partnership was only a ruse and infact son in law was in exclusive possession of the premises in question. Similarly in Joginder Singh Sodhi 's case(Supra) also, the facts are distinguishable as in that case the tenant himself had taken the plea that he had taken the premises in dispute on rent for his son. There also it was held that the sub tenant was in exclusive possession. In the present case, it has nowhere been proved that son of the respondent was in exclusive possession. I consider that that appellant has failed to prove its case. The appeal is dismissed accordingly.
18. TCR be sent back along with copy of this judgment.
19. Appeal file be consigned to Record Room.
RCT No.154/16 Page No. 20 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh Announced in open Court (DINESH KUMAR SHARMA) on 25.02.2020. District & Sessions Judge/ Rent Control Tribunal New Delhi RCT No.154/16 Page No. 21 of 21 Jaspal Singh Uppal vs Bajrang Bali Singh