Mange Ram (Deceased) Through Lrs. vs Chhuttan Lal (Deceased) Through ...
1999 Latest Caselaw 731 Del

ORDER

Vijender Jain, J.

1. Eviction petition under Section 14(1)(a) and (b) of the Delhi Rent Control Act was filed against the appellant. Addl. Rent Controller held that appellant committed default in payment of rent and also parted with possession of the demised shop in favour of his son. An order of eviction was passed under Section 14(1)(b) of the Act. Aggrieved by the said order, appeal was preferred before the Rent Control Tribunal which dismissed the appeal of the appellant. Second appeal has been filed by the appellant in this Court aggrieved by the said dismissal of appeal by Rent Control Tribunal.

2. Mr. Rawal, learned counsel for the appellant has contended that the appellant has not given up right to possession and in the absence of any finding or evidence on record that right to possession has also been surrendered by the appellant, eviction order could not have been passed by the Addl. Rent Controller. Learned counsel for the appellant has contended that case of the appellant would not fall in the mischief of "assigning, parting with or subletting" occurring in Section 14(1)(b) of the Delhi Rent Control Act. Another contention raised by shri Rawal was that Tribunal failed to exercise jurisdiction vested in it by not taking subsequent event pursuant to which an application under Section 151 was filed by the appellant bringing to the notice of the Tribunal that there was a dispute inter se between the heirs of deceased Chhuttan Lal-Landlord.

3. It seems that during the pendency of the proceedings both Chhuttan Lal-Landlord and Mange Ram-Tenant died. There legal heirs were brought on record. Mr. Rawal has further contended that in the written statement it was specifically pleaded that Gopi Ram, son of Mange Ram was not in exclusive possession of the property in dispute. It was contended that plea taken by the respondent was that the respondent were in joint possession of the shop in question and appellant and his son Gopi Ram were tenants running their joint business. Mr. Rawal has further contended that on the basis of the cross-examine of Chhuttan Lal dated 14.1.1983 he had stated that Gopi Ram used to sit with Mange Ram. Lastly Mr. Rawal has contended that there is nothing on record to show that parting of the possession was in lieu of some compensation or rent paid by Gopi Ram to Mange Ram. In support of his contention, learned counsel for the appellant has relied upon Dipak Banerjee Vs. Smt. Lilabati Chakraborty . The relevant paras are as under :

"............................................................

But 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......................................."

"The question in this case is whether the alleged sub-tenant was in exclusive possession of the part of the premises and whether the tenant had retained no control over that part of the premises. There is no evidence on the fact that the alleged subtenant was in exclusive occupation of any part of the premises over which the tenant had not retained any control. 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."

4. Mr. Rawal in his support has also cited Delhi Stationers & Printers Vs. Rajendra Kumar 40(1990) DLT 446 and has contended that mere occupation is not sufficient either to infer sub-tenancy or parting with possession. Relevant para is as under:

"Under Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'), the tenant is liable to be evicted, if he has assigned , sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession."

5. Learned counsel for the appellant has further cited Sohan Lal Vs. Sri Pal & Ors., . In support of his contention that in view of non-production of account by the appellant no inference could be drawn by the Courts below, he has cited Ramrati Kuer Vs. Dwarika Prasad Singh and others :

"........... An adverse inference could only have been drawn against the plaintiff-respondents if the appellant had asked the Court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts . But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the non- production of accounts. But it is urged that even so the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance by Basekhi Singh. Even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to widows may not be acceptable; but no adverse inference can be drawn (in the absence of any prayer by the appellant that ac- counts be produced) that if they had been produced they would have shown that income was divided half and half in accordance with the title claimed by the appellant."

6. On the other hand, Mr. Ishwar Sahai, learned senior counsel for the respondent has contended that this Court, while exercising its appellate jurisdiction, will not interfere with the finding of facts arrived at by the courts below. Mr. Sahai has contended that there is a concurrent finding regarding the fact that Gopi Ram was the tenant and not Mange Ram in view of the stand taken by the appellant before the courts below. Mr.Sahai has contended that the stand of the appellant was not that he was in per-missive possession but the case set up by the appellant was that they were joint tenants and case of joint tenancy was pleaders before the Addl. Rent Controller. Mr.Sahai has contended that at page 26 of the paper-book ( written statement on behalf of the appellant) in preliminary objection, the stand has been taken by the appellant is as follows :

".............The tenancy is in the name of Shri Mange Ram and that of Shri Gopi Ram, s/o Shri Mange Ram . The rent has been paid by the said Shri Gopi Ram in the name of M/s. Mange Ram Gopi Ram, which is owned by both Shri Mange Ram and Shri Gopi Ram who are father and son respectively, hence the petition is bad and is liable to be rejected."

7. Mr. Sahai has contended that it was the appellant Mange Ram who was the tenant at the rate of Rs. 7.75 per month. He has further contended that in view of the fact that the appellant himself has not contended that the possession of Gopi Ram, although exclusive, is permissive in character nor it has been pleaded that Gopi was running the business with the permission of Mange Ram, it was sufficient that Gopi Ram was alone running the business exclusively, then it shall be presumed that the appellant has parted with the possession of the tenanted premises. In support of his contention, learned senior counsel for the respondent has cited Gurcharan Singh & Ors. Vs. Shri V.K. Kaushal and Amar Singh Vs. Washeshar Nath 1972 RLR 116.

8. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. In view of the definite stand taken by the appellant that the business is being run in the premises jointly and not exclusively. Nowhere any material is on record to show that although Gopi Ram was running the business in the premises, the appellant had not divested himself of the legal possession of the premises. It is not the stand of the appellant that the possession of Gopi Ram was permissive. The evidence of RW 2 and RW 3 was that both Mange Ram and his son Gopi Ram where working in the shop. But from the evidence on record it was not found that the business being run in the premises, was joint.

9. In the impugned order the Rent Control Tribunal in paragraph 4 has observed:

".................................................................

The appellant had also moved an application under Order 41 Rule 27 CPC seeking permission to file certified copy of judgment of the court of Shri N.R. Sharma, Sub Judge, Ist Class rendered on 17.5.1956 between the parties and municipal licence for running business in the suit premises. Both these documents which are sought to be considered while deciding this appeal were within the knowledge and control/possession of the original appellant/tenant and, therefore, permission to take these documents on record could not be granted as contemplated by clause (a) of Rule 27(1) of Order 41 CPC. However, in the interest of justice, I have permitted these documents to be considered provided the appellants also file the statutory licence issued by the Department of Food & Supplies, Delhi Admn. which has been filed during arguments of this case."

10. Mr. Rawal has vehemently contended that the application ought to have been allowed by the Rent Control Tribunal. The Rent Control Tribunal rightly did not allow these documents to be produced on the ground that same were within the knowledge and control/possession of the original appellant/tenant and, therefore, permission was not granted. However, the Rent Control Tribunal permitted these documents to be considered.

11. The argument of Mr. Rawal that Gopi Ram has filed his suit claiming co-tenancy right in the disputed shop along with his father Mange Ram and in which a deposit was made under Section 27 in the joint names. That suit for a co-tenancy right was ultimately dismissed.

12. The suit, filed by Gopi Ram alleging himself to be joint tenant with Mange Ram, his father, was dismissed by the Civil Court. In spite of that the stand of Gopi Ram that suit shop was taken by Mange Ram and Gopi Ram, same was falsified by the cross-examination of Mange Ram itself, he took the stand that the licence for running the kerosene oil depot was in the name of both Mange Ram and his son. The said licence was not produced and, therefore, the trial court was fully justified in drawing adverse inference against the tenant. Kerosene oil depot was started in the year 1976 and, therefore, the judgment of Mr. N.R. Sharma, Sub Judge, holding that there was no sub-tenancy prior to 1956 was not relevant and was rightly discarded by the trial court. The Municipal licence in the name of Mange Ram was also of no use to determine as to who was in actual possession of the shop in question. The shop was being run previously for selling cattle feed and since 1976 it was used as a kerosene oil depot. It was only before the Rent Control Tribunal that licence issued by the Food and Supply Department for running a kerosene oil depot which was granted in the name of Gopi Ram alone was filed pursuant to the direction issued by the Rent Control Tribunal.

13. Therefore, I do not see any justification in setting aside the finding of fact by the two courts below that the kerosene oil depot was being run in the name of the firm by a sole licensee and owner Gopi Ram alone and Mange Ram, tenant did not have any connection with this oil depot in any manner.

14. No document was brought before the trial court or before the Rent Control Tribunal to establish partnership between Mange Ram and Gopi Ram. In Niranjan Lal Kanodia Vs. Harbans Lal 1995 II AD(Delhi) 347, the Court observed as follows:

"The law on the question of sub-letting is fairly well settled. Mere user of a premises by any person or party does not amount to sub-letting, assigning or parting with possession so long as the tenant retains legal possession of the premises with himself. The test to be applied is : has the tenant given up or lost the right to the premises If he retains the right to possess the premises it will not be a case of sub-letting. In Jagdish Prasad Vs. Angoori Devi, it was observed "the Act does not require the Court to assume a sub-tenancy merely from the fact of presence of an outsider". In Jagan Nath Vs. Chander Bhan, a case under the same provision which is for consideration in the present case, it was 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 possession must have been by the tenant; user by the 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 not parting with possession in terms of Clause (b) of Section 14(1) of the Act. It was further observed "where the tenanted premises were residential-cum-commercial and the tenant was carrying on the business with his sons and the family was a joint Hindu family, it was difficult to presume that the tenant had parted with possession legally to attract the mischief of Section 14(1)(b) of the Act. Even though the tenant had retired from business and his sons had been looking after the business, it could not be said that the tenant had divested himself of the legal right to be in possession."

15. It is also pertinent to mention that in a proceedings under the Slum Areas (Improvement & Clearance) Act vide order dated 19.8.1972 it was held that Mange Ram alone was the tenant. Notice was served on Mange Ram (Ex. AW 1/2) dated 24..1972. Gopi Ram, the alleged joint-tenant filed Civil Suit No. 447/78 for declaration that he was a co-tenant in the shop in question along with his father Mange Ram. That suit though originally decreed by the trial Court, was later on dismissed by the appellate Court. Aggrieved by the dismissal of the said appeal, Gopi Ram preferred RSA No. 254/82 which was dismissed in limine by the High Court on 12.2.1983 and thereafter an SLP (No. 2676/83) was preferred, which was also dismissed on 26.4.1983.

16. I do not find any force in the arguments of the appellant that mere issuances of a licence to run kerosene oil depot in the name of Gopi Ram will not show that Mange Ram has parted with the possession. The said licence, first of all, was not produced before the Addl. Rent Controller, it was only at the direction of Rent Control Tribunal that the said licence was produced in the Court. No evidence was produced as was contended before the Addl. Rent Controller that the kerosene oil depot was in the name of both Mange Ram and Gopi Ram. Onus was on Gopi Ram to show before the Addl. Rent Controller that the kerosene oil business was run with Mange Ram either in partnership or otherwise. No document or any business account or bank account that Mange Ram was in joint business of kerosene oil with Gopi Ram was brought on record.

17. I also find no force in the argument of the learned counsel for the appellant that there was nothing on record to show that the transfer to Gopi Ram was in view of some compensation of rent paid by Gopi Ram to Mange Ram. In Bharat Sales Ltd. Vs. L.I.C. of India, 1998 RLR 192 Supreme Court held as under:

"When a tenant parts with possession of premises to another without consent of the landlord, then landlord is kept in the dark and scene is enacted behind his back concealing the overt acts and transferring possession clandestinely to a person whom landlord had not allowed or consented, to occupation of alleged sub-tenant. In such circumstances landlord is not expected to prove terms of sub-tenancy including payment of rent by sub- tenant which may have been paid secretly."

18. In Gurcharan Singh & Ors., Vs. Shri V.K. Kaushal , where shop was let out to one G alone and not to a joint Hindu family and subsequently when the business of G was taken over by partnership firm consisting of his father and brother and firm coming into possession of the shop and G was not a partner of the firm and not having right to possession, it was held by the Supreme Court that it was a case of sub-letting.

19. Therefore, it was for the tenant to bring on record some evidence that he has not parted with the possession of the property in question. Therefore, I hold that Mange Ram, original tenant did not retain even right to possession in the property in question.

20. In view of the above discussion, I do not find any force in this appeal and the same is dismissed.