Howna Ram (Decd.) Thr. Lr'S vs Purshottam Dass And Ors.
2004 Latest Caselaw 1097 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the order dated 15th September, 2003, of the Additional Rent Control Tribunal (for short "the Tribunal) in RCA No. 51/2002, which appeal arose from the judgment of the Additional Rent Controller dated 5th August, 2002, whereby the learned Additional Rent Controller has allowed the petition filed by the landlord by holding that the tenant had sublet/assigned or otherwise parted with possession of the suit premises rented out to him by the landlord. The learned Tribunal vide its aforesaid judgment has dismissed the appeal by concurring with the findings arrived at by the learned Additional Rent Controller.

2. The brief facts of the case, as has been noted by the Tribunal, are as under :

"2. Briefly stated the relevant facts of the case, as stated by the petitioners are that the respondent No. 1 Howna Ram was inducted as a tenant in respect of one Tin-shed and open courtyard total area measuring 90 sq. yards premises No. 499-B 1A (old No.) and IX/1648 (new No.) Multani Mohalla Road, Gandhi Nagar, Delhi-31, as shown in red colour in the site plan, w.e.f. 1.12.67 and the present rate of rent is Rs.357.50 p.m. besides electricity charges. Petitioners further stated that the tenancy is month by month which starts from the first day of each English calender month and end on the last day of the same month and further the rent receipts were being issued to the respondent No.1. Petitioners further stated that the respondent No. 1 has sub-let, assigned or parted with the possession of open land measuring 45 sq. yards to respondent No. 2 writing about two years back from the date of filing the present petition. Petitioners further stated that respondent No. 1 is doing business of tea and salt under the name and style of Surya Agency in the built-up portion measuring 45 sq. yards, while respondent No.2 is doing his business of building material in open space under the name and style of Kumar Builders. Petitioners further stated that respondent No. 2 is also a tenant in respect of open land measuring 55 sq. yards which is adjacent to the premises in question, vide rent agreement dated 24.9.70. Petitioners further stated that now the respondent No. 2 is in possession of land measuring 100 sq. yards instead of 55 sq. yards as open land measuring 45 sq, yards is being sub-let by the respondent No. 1 to respondent No. 2 out of the tenanted premises of respondent No. 1. Petitioners further stated that there was a partition wall between the tenanted premises of respondent No. 1 and 2 which has been demolished and removed by the respondents without the consent of the petitioners. Petitioners further stated that respondent No. 1 has caused or permitted to be caused substantial damage to the tenanted premises as the respondent No. 1 has constructed three stores on the ground floor and also raised one room on the first floor in the first week of November 1998 and the said construction are shown in green colour in the site plan. Petitioners further stated that respondent No.1 has removed and a puce roof has been raised by the respondent No.1 in place of tin-shed. Petitioners further stated that they have suffered damages to the tune of more than Rs. One lakh. Hence, the present petition. Respondents filed their written statement whereby contested the resent petition on the ground that the petition is liable to be dismissed u/o 7 Rule 11 CPC. Respondents further stated that respondent No.2 is in possession of open area wherein he is running his business of building material. Respondents further stated that open space, let out to to respondent No.1 is in his physical possession where he is running his business of bamboos on hire basis. Respondents further stated that respondent No.1 never sub-let, assigned, parted with possession of any portion of the tenanted premises, as alleged by the petitioners, to the respondent No.2. Respondents further stated that there is no first floor in existence and the stores which were stated to be constructed by the respondent No.1, as alleged by the petitioners, were already in existence and same have been repaired only by the respondent No.1. Respondents further stated that there was kachhi wall which has been bend down as the petitioners did not reconstruct the same despite requests. Respondents also controverter other allegations of the petitioners.

4. Petitioners filed replication wherein reasserted and reaffirmed the previous stand and denied the pleas taken by the respondents in the written statement. Petitioners stated that in fact the respondent No.1 not doing any business in the tenanted premises.

5. Both the parties led their respective evidence in support of their case. Petitioners examined petitioner No.2 Radha Kishan as PW1 and Vijay Arora as PW2. Petitioners proved on record rent receipts as Ex.PW1/1 to 7, site plan as Ex.PW1/8, certified copy of plaint as Ex.PW1/9 and certified copy of orders passed in civil suit as Ex.PW1/10 to 13. Respondents examined attorney of respondent No.1 Sanjay Dua as RW1, respondent No.2 Fatehe hand as RW2, Narender Singh as RW3 and A.Z.I. House Tax Department, MCD as RW4. Respondents also placed/proved on record Special Power of Attorney executed by respondent No.1 as Ex.RW1/A, Report of Local Commissioner as Ex.RW1/P1, photographs as Ex.RW1/P2 to P 20 and House Tax records as Ex.RW1/A and Ex.RW1/B."

3. Counsel for the petitioners submits that it was not proper for the courts below to have relied upon the report of the Local Commissioner and site plan Ex.PW1/B since the same had not been tested by cross-examination. Counsel also submits that there was no parting with possession since there was nothing on record to show that the material lying on property in question belong to anyone other than the petitioners.

4. Heard counsel for the parties and have carefully gone through the judgment of the Additional Rent Controller as also of the Tribunal. It appears that both the courts below have thrashed out this issue threadbare and have arrived at concurrent findings that the tenant has lost effective control of the premises in question and has been parted with possession thereof. It is needless to say that counsel for the petitioners has merely repeated the arguments which have been adequately dealt with by the two courts below. In this view of the matter, It would not be proper for this court exercising jurisdiction under Article 227 of the Constitution of India to alter concurrent findings of fact as has been held by the Supreme Court in M/s Bhojraj Kunwarji Oil Mill and Ginning Factory and Anr. Vs. Yograjsinha Shankersinha Parihar and Ors. , Mohd. Yunus Vs. Mohd. Mustaqim and Ors. and M/s India Pipe Fitting Co. Vs. Fakruddin M.A. Baker & Anr. . In this view of the matter, I find no grounds to interfere. CM(M)229/2004 is accordingly dismissed. CM APPL.2064/2004 also stands dismissed.