Narain Singh vs Vijendra Singh Chadha
1995 Latest Caselaw 918 Del

JUDGMENT

Arun Kumar, J.

(1) The respondents in this appeal filed eviction petition against the appellants herein under the provisions of clauses (b), (c) and (J) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act) for eviction of the tenants from the premises comprising one hall (15' X 16') and one kitchen-cum-shop on the ground floor of property No.F-14/1, Model Town,Delhi. As per the case of the landlords in the eviction petition the premises had been let out for purpose of restaurant business at a monthly rent of Rs.l26.88p excluding water and electricity charges.

(2) The eviction was sought on the following grounds-

(I) that the premises was let out to appellants I and 2 for restaurant business but the same was mis used for residential purpose without the consent of landlords. The misuser had not stopped in respect of service of notice dated 4th April 1973.

(II) appellants I and 2 bad caused substantial damage to the premises by removing certain wooden doors, windows etc. etc.

(III) appellants 1 and 2 bad unauthorisedly sub-let, assigned or otherwise parted with possession of a portion of the premises measuring 3' X 3' by carving out a shop out of the hall as shown green in the plan attached, to appellant No.3 and the remaining premises to appellant No.4 without the consent of the landlords.

(3) According to the averments made in the eviction petition by the landlords appellants 3 and 4 were in exclusive possession of their respective portions of the tenancy premises.

(4) The appellants filed a joint written statement denying all the allegations made in the eviction petition about the grounds of eviction. It was stated that the whole premises was in possession of appellants I and 2. The carving out of a portion from the hall of the size of 3' X 3' was denied, though it was admitted that there was pan shop in that 3' X 3' portion and the pan shop was stated to be in furtherance of the business of appellants I and 2. Appellants I and 2 were stated to be in full possession and control of the entire tenanted premises. The possession of appellants 3 and 4 was thus denied.

(5) A Local Commissioner bad been appointed by the AddL Controller on a prayer made in that behalf by the landlords for the specific purpose of visiting the spot and make a report as to who was in possession of the tenancy premises. The Local Commissioner made a report Ex. Aw 5/1, dated 23rd May 1975 in which he stated that he had visited the premises on 16th May 1975 and found Ratan Singh, appellant No.3 present in the portion meant as pan shop which had been carved out from the big hall. The Local Commissioner further reported that there was a door in the pan shop which opened in the hall. The door could be locked from both sides, i.e. from the side of the hall as well as inside the pan shop. The pan shop bad a door opening towards street. There was a board of Kumaon Pan Bhandar displayed outside the pan shop. In the remaining portion of the hall he found a restaurant being run under the name and style of Kumaon Restaurant and Gopal Singh, appellant No.4 was found present there. Khem Singh appellant No.2 is also stated to have arrived at the restaurant afterwards and stayed there for few minutes only. The Local Commissioner in his report opined that the tenanted premises had been sub-let partly to Ratan Singh and partly to Gopal Singh. This part of the report of the Local Commissioner cannot be referred to because the Local Commissioner had no business to give any opinion or make on any observations about sub-letting of the premises. He was only required to report about the factual position about the occupation of the shop. The report can be, therefore, looked into for purposes of the fact that pan shop had been carved out from the main hall and about the possession of the pan shop and .the remaining portion of the tenancy premises.

(6) The Addl. Controller dismissed the eviction petition vide his Judgment dated 9th August 1976. All the three grounds of eviction were held to be not made out and, therefore, the petition was dismissed. The landlords filed appeal against the said judgment of the Addl. Controller. The Rent Control Tribunal allowed the appeal on 7th April 1979 so far as the ground under clause (b) of the proviso to sub-section (1) of section 14 is concerned dealing with the sub- letting, assignment and parting with possession. On the other grounds pleaded by the petitioner, the judgment of the Addl. Controller was upheld. The Tribunal accordingly passed an eviction order in favor of the landlords and against the tenants under the ground covered by clause (b). The tenants have filed the present appeal challenging the said judgment of the Tribunal.

(7) The main point in controversy in. the present appeal is whether the ground of sub- letting, assigning or parting with possession by appellants I and 2 in favor of appellants 3 and 4 is made out or not. First thing which needs to be noted in this behalf is that the finding on this aspect of the case is essentially a finding of fact based on appreciation of evidence and this court in this second appeal which the statute confines to a substantial question of law, will not normally interfer with. on the basis of appreciation of evidence the Tribunal has come to the conclusion that the case has been made out under clause (b) of proviso to sub-section (1) of section 14 of the Act.

(8) The main contention of the learned counsel for the appellants is that the burden of proof to establish the grounds under clause (b) was on. the landlords which they failed to discharge. It is submitted that appellants 3 and 4 are close relations of appellants I and 2 appellant No.4 being real brother of appellants 1 and 3 and appellant No.3 being the brother of wife of appellant No.2. On this basis it is submitted that even if they were found to be working on the suit premised this fact could not alone lead to a finding of sub-letting, assigning or parting with possession. No proof of payment of rent was forthcoming. Payment of rent by the sub-tenant to the tenant is an essential ingredient to make out a case of sub-letting. So far as the question curving out a khokha for purposes of pan shop is concerned, it is submitted on behalf of the appellants that the khokha is not an independent portion, it is part of the main hall and, therefore, it cannot be considered as having been carved out of the main hall and having been handed over to a third party. Learned counsel for the appellants submitted that the stand of the appellants through out has been that appellants 1 and 2 are in possession of the tenancy premises and appellants 3 and 4 were never in possession thereof.

(9) On the other hand the learned counsel for the respondents landlords submitted that the presence of appellants 3 and 4 on the tenancy premises has been established on record. This fact has been clearly pleaded by the landlords in the eviction petition itself. Therefore, it was for she tenants to explain the presence of appellants 3 and 4 on the tenancy premises. The tenants should have shown or explained how appellants 3 and 4 were found to be in possession of the tenancy premises. In this behalf the learned counsel for the landlords had drawn my attention to the written statement filed on behalf of the tenants. The submission is that in the written statement no effort has been made to explain the presence of appellants 3 and 4 on the tenancy premises. It is not stated as to whether they were present as employees of appellants 1 and 2 or they were present as mere relations of appellant 1 and 2 or they were present as partners of appellants 1 and 2. Nothing at all has been stated except saying that appellants 1 and 2 are in actual possession of the premises. It is further submitted on behalf of the landlords that in the absence of a plea to explain the presence of appellants 3 and 4 no amount of evidence even if led on the points by the tenants can be looked into. The landlords in fact proceeded for the trial of the suit on the pleadings of the parties as they stood and led their evidence. It is submitted that it was for the first time when the tenants started to lead their evidence that they tried to set up a case that appellant No.3 Ratan Singh was a mere employee and appellant No.4,Gopal Singh was a partner and had been inducted in pursuance of clause (9) of the Rent Note (Ex.AW 7/7) executed by the tenants in favor of the landlords. Regarding the Rent Note it is submitted by the counsel for the landlord that the landlord is not a party to the Rent Note because the said document has been executed by appellants 1 and 2 alone. Secondly, it is submitted that if it was a case of taking appellant No.4 as a partner in restaurant business, the tenants should have so pleaded in their written statement so that the landlords could meet such a case. Regarding the plea of appellant No.4 being taken as a partner, it has been submitted that no partnership deed is forthcoming. No accounts have been filed to show that the restaurant business was being run in partnership. Even in the evidence led by the landlord the case of partnership was not put to the landlord who appeared as witness in support of his case. The learned counsel for the respondents urged that the moment presence of appellants 3 and 4 in the tenancy premises was established, the burden of proof shifted on to the tenants to explain their presence and to establish a case which could take them out of the purview of clause (b) of section 14(1) of the Act. Regarding the pan shop (khokha) it was submitted that the fact that the fact it had doors on both sides, one opening towards hall and the other opening towards the street coupled with the further fact that the doors had bolts on both the sides shows that the khokha had been carved out as an independent portion so that it could be independently locked by the person occupying the same. According to the learned counsel if the pan shop was part of the restaurant business there was no need to make a provision for its independent locking. The pan shop has a roof of wooden planks which shoes that the said portion is totally exclusively and independent. In support of the plea that the landlords had established the presence of appellants 3 and 4, i.e. sub-tenants or alleged persons in whose favor there was assignment of parting with possession, reliance was mainly placed on two pieces of independent evidence - (1) report of the Local Commissioner, Ex.AW 5/1;and (2) Ex.AW2/1, i.e. Survey Report of an M.C.D. official in the year 1973 which showed the presence of appellant No.3 in the pan shop and appellant No.4 in the remaining portion of the tenancy premises. Although the survey report mentions the words as "sub-tenant", the said words can be ignored. Still the presence of the persons concerned cannot be disputed.

(10) An important fact to be noted is that the stand of the appellants regarding Ratan Singh, appellant No.3 is shifting. Ratan Singh when he appeared as a witness slated that he was an employee and Was being paid a sum of Rs.100.00 to Rs.150.00 per month for working in the demised premises. However, when Khem Singh, appellant No.2 appeared as Rw 9, he slated-in his cross- examination that Ratan Singh was not being paid anything and was having only his meals in restaurant in lieu of the work he was doing for the restaurant. In the written statement there was no plea that Ratan Singh was only an employee. This apart from absence of proper pleadings, is a case of contradiction in evidence on a very material aspect. The contradiction in the evidence pointed out above knocks out the case sought to be set up in evidence that Ratan Singh was only an employer. The .next question will be in what capacity. Ratan Singh was found to be present on the premises. The obvious answer is that he; was occupying the pan shop either as a sub-tenant or as a person in whose favor possession of the said portion had been parted with.

(11) The presence of appellant No.4, has been established on record. The evidence of witnesses of landlords AW-6 and AW-7 shows that Narain Singh appellant No.1 was practically living in the village and did not take any interest in the suit premises, About Khem Singh, appellant No.2 the evidence reveals that he. was doing business at some other place in Delhi, In the absence of any plea regarding partnership in the written statement and total absence of documents to suggest existence of a partner ship, the plea of partnership with appellant No.4 sought to be developed at the stage of evidence of the tenants can neither be believed nor sustained. Therefore, if not anything else, it will be a clear case of parting with possession of the hall in favor of Gopal Singh, appellant No.4. It is evident that the original tenants, i.e. appellants 1 and 2 have really effaced themselves from the tenanted premises and list entire possession and control has been left with appellants No.3 and 4.

(12) The Rent Control Tribunal rightly observed that "once it is proved that Gopal Singh and Ratan Singh, two persons who are not connected with the tenancy of the premises are in occupation :of the premises, the onus shifted heavily on the respondents (tenants) to prove that these persons were not sub-tenants and no portion of the premises has been parted with in their possession". Appellants 1 and 2,i.e. the original tenants failed to show that in fact they were in actual possession and control of the premises and that they were doing business therein.

(13) Thus I find no merit in this appeal. There is no ground to interfere with the judgment of the Rent Control Tribunal on the question of sub-letting, assigning and parting with possession of the tenancy premises as per clause (b) to the proviso to sub-section (1) of section 14 of the Act. The appeal is dismissed leaving the parties to bear their respective costs.