Shri Bhairon Sahai Through Lrs vs Shri Bishamber Dayal Through Lrs. ...
2011 Latest Caselaw 1575 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                        Judgment reserved on: 11.3.2011
                         Judgment delivered on: 18.3.2011


+                  RCSA No.217/1984

SHRI BHAIRON SAHAI THROUGH LRS.        ...........Appellant
              Through: Mr.R.P.Bansal, Sr. Advocate with
                       Mr.Rakesh Mahajan, Mr.Sheetesh
                       Khanna     &   Mr.Gautam   Anand,
                       Advocates.
              Versus

SHRI BISHAMBER DAYAL THROUGH LRS. & ANR.
                                       ..........Respondents
             Through: Mr.R.L.Kohli, advocate.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This is a second appeal. It has impugned the judgment of

Rent Control Tribunal (RCT) dated 21.4.1984. The RCT had

reversed the finding of the Additional Rent Controller (ARC) dated

14.11.1983 wherein the petition filed by the landlord Bhairon Sahai

under Section 14(1)(b) of the Delhi Rent Control Act 1958

(hereinafter referred to as „the DRCA‟) had been decreed. . The

impugned judgment had reversed this finding; eviction petition of

the landlord stood dismissed.

2. The petitioner/landlord Bhairon Sahai had filed an eviction

petition against two respondent brothers namely Bishamber Dayal

and Ram Avtar under sections 14(1)(b) and 14(1)(j) of the DRCA.

The demised premises comprise of a shop i.e. property bearing

No.7/6403, Dev Nagar, Karol Bagh, New Delhi. Contention of the

landlord was that respondent no.1 had sublet, assigned or parted

with the possession of the shop in favour of respondent no.2

without the consent of the landlord; the property had been

partitioned in two portions by making big holes therein; substantial

damages to the property had also been effected.

3. The respondent had disputed this position. It was denied

that there was any subletting or ground under Section 14(1)(j) of

the DRCA had been made out. Contention was that both the

respondent brothers comprised of a joint hindu famly; the shop had

been taken in the name of Ram Avtar Bishamber Dayal; thereafter

the business continued under the name and style of M/s Ram

Chander Ram Avtar which was being run jointly since 13.9.1959.

On 01.8.1963 a partition took place between the brothers and the

demised shop had fallen to the share of respondent no.1 namely

Bishamber Dayal. Respondent no.2 i.e. Ram Avtar had taken a food

grain licence (FGL) No.901 in March 1964 which was being used

by respondent no.1 as sole proprietor of this Fair Price Shop (FPS).

Respondent no.1 has been running this business as a sole

proprietor although admittedly the FGL was in the name of

respondent no.2. After the change in government policy the

Authorized Retail Distributorship (ARD) was obtained by

respondent no.2 in 1965 in his name because the government had

refused to issue the said ARD in favour of respondent no.1.

However, it was respondent no.1 who is carrying on the business of

the ARD as its sole proprietor. Respondent no.2 had no interest in

the said proprietorship till 1.1.1977. On 1.1.1977 respondent

inducted respondent no.2 as his partner in the ration shop in one

half portion of the disputed premises. The possession of the shop

has always been with respondent no.1. There has been no parting

of possession of the same either in whole or in part; no damage has

also accrued to the said premises.

4. This is an appeal under Section 39 of the DRCA which

provision now stand repealed by the Amendment Act 1988.

However, the present appeal having been filed prior in time,

admittedly the parties are governed by this provision of law.

5. Section 39 of the DRCA reads as follows:

"„No appeal shall lie under sub-section (1) of Section 39 unelss the appeal involes some substantial question of law."

6. On 11.3.2011 the substantial question of law had been

formulated by this Court:

Whether the finding in the impugned judgment of the Land Control Tribunal dated 21.04.1984 are perverse? If so, its effect?

7. Certain facts are admitted. Relationship of landlord and

tenant qua respondent no.1 was not in dispute. The Additional

Rent Controller (ARC) had repelled the contention of the

respondents that the premises was taken on rent by the HUF; no

documentary evidence had been produced to the said effect;

respondent no.1 was the established tenant in his individual

capacity. The FGL No.901 was admittedly in the name of

respondent no.2. This was obtained in the year 1964. Business

was being run under the name and style of M/s Ram Chander Ram

Avtar. In 1965 the government had appointed Authorized Retail

Distributors (ARDs). Persons having FPS were appointed as ARDs.

Respondent no.1 on 2.12.1965 vide Ex.RW-1/1 on an non-judicial

stamp paper of Rs.2/- made efforts to obtain this ARD in his own

name. This was incomplete document. It is an one page document

and had been proved on record by respondent no.1 to substantiate

this effort on his part. It was for no other purpose. ARC had,

however, rejected this document. Impugned judgment had

reserved this finding. It had placed reliance upon Ex.RW-1/1 for

this limited purpose only and rightly so. This stamp paper was

purchased by respondent no.1 in his own name; this is evident from

the back page of Ex.RW-1/1; this prima facie evidenced the

intention of respondent no.1 to get the ARD effected in his name.

However, the government rules did not permit this. The ARD

admittedly could be given only to a person who was holding fair

price shop licence. Thereafter respondent no.2 had applied for this

ARD which was accordingly granted to him. AW-3 J.C.Kaushik,

Public Relation Officer had brought the summoned record to

substantiate that as per the ledger Ex.AW-3/1 the security amount

had been deposited in the name of Ram Avtar. AW-4 Manohar Lal,

the Clerk and Record Keeper, Commissioner of Food and Supplies

deposed that respondent no.2 had applied for the ARD and

agreement to the said effect had been executed between the

government and respondent no.2 which was on 25.1.1977 yet the

stamp paper had been purchased by respondent no.1 in the name

of respondent no.2.

8. This testimony is completely in consonance with the stand of

respondent no.1 who has deposed and also proved on record

Ex.RW-1/1 which was the stamp paper purchased by him to

advance his efforts to obtain the ARD in his name but the

government policy prohibited it; as per the government policy ARD

could be issued only in the name of the person holding the licence

of the fair price shop.

9. AW-2 Maharaj Kumar, an advocate, admittedly had been

appointed as a local commissioner in an earlier eviction petition

filed between the same parties; this was in suit No.441/1976.

AW-2 had on oath proved the said report Ex.AW-2/1. This

document has been scrutinized in the impugned judgment. It had

noted that even when AW-2 had visited the demised shop there was

a black board hanging there wherein in clear terms the name of

the proprietor was mentioned as Bishamber Dayal. These

photographs had been proved and are on record as AW-5/6 and

Ex.PW-5/12. Both these photographs clearly depict the board

outside the shop wherein the name of Bishamber Dayal Aggarwal

had been mentioned as its proprietor. Narender Kumar, the

nephew of respondent no.1 was found sitting in the shop and at

that time respondent no.1 and respondent no.2 were sitting in the

adjoining grocery shop which was being run by respondent no.2.

RW-1 Bishmaber Dayal had on oath testified and explained that his

nephew Narender used to help him in his shop for one hour daily in

issuing bills/slips. He had categorically stated that he had no other

shop except the shop in dispute; he has never worked anywhere

else. It was noted that there was no direct cross-examination of

this witness on this score. RW-8 Krishan Avtar Gautam was known

to both the parties since last 20-25 years. He had also deposed

that respondent no.1 was carrying on business and selling his food

items from his shop; his brother respondent no.1 Ram Avtar has a

shop adjoining the shop of respondent no.1 from where he was

selling his goods. The ARC in fact had not discussed the testimony

of the witnesses of the respondent; it had not been adverted to.

10. These are findings of fact and in no manner can be said to be

perverse. Clear and cogent evidence oral, and documentary had

established that respondent no.1 Bishamber Dayal was running this

shop and was in possession of the same.

11. In AIRCTJ 1969 423 Pearey Lal Syal Vs. Dr.Dhian Singh the

Court had examined what could be a substantial question of law

under the provision of 39 of the DRCA. It was held that even

assuming that a second appellate Court would have come to a

conclusion different from that endorsed by the tribunal, it would

not necessarily assume the scope of a substantial question of law.

The findings of fact when concluded can be interfered with only if

the same are perverse. No such perversity has been pointed out.

12. The question that had arisen is whether respondent no.1 had

in any manner sublet, assign or otherwise parted with the

possession of whole or any part of the suit premises without the

consent of the landlord.

13. At this stage it would be relevant to extract the provisions of

Section 14(1)((b) of the DRCA; they read as follows:

14. Protection of tenant against eviction. - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:

..........

(b) that the tenant has, on or after the 9 th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any of the premises without obtaining the consent in writing of the landlord;"

14. Expression "parted with possession" undoubtedly postulates

the parting with legal possession. It means giving possession to

persons other than those to whom, possession has been given by

the lease and "the parting with possession" must have been by the

tenant.

15. The question of subletting is a conclusion on a question of

law derived from the finding on the material on record i.e. as to

whether there has been a transfer of exclusive possession. Such

finding can be re-examined by the High court under the provision

of Section 15(5) of the DRCA. It is a settled position of law that to

establish subletting onus is on the landlord to prove it through

evidence that the sub-tenant is in exclusive possession of the

property in question; that between the sub-tenant and tenant there

is a relationship of lessee and lessor and that possession of the

premises has been parted with exclusively by the tenant in favour

of the sub-tenant.

16. The impugned judgment had re-appreciated the oral and

documentary evidence to draw a conclusion that there has been no

subletting by respondent no.1 in favour of respondent no.2 thereby

dismissing the eviction petition. Bishmaber Dayal was carrying on

the business as a sole proprietor of the fair price shop. The licence

of the fair price shop was admittedly in the name of his brother; as

a necessary corollary the ARD also had to be necessarily obtained

in the name of his brother. Government policy did not permit him

otherwise; after 01.7.1977 respondent no.1 had inducted his

brother as a partner in his firm in one and half portion of the shop.

The possession of the shop, however, remained with respondent

no.1. There had been no parting of possession either in whole or in

part. The mischief of Section 14(1)(b) was not attracted. The

landlord/petitioner had failed to fulfill the ingredients of Section

14(1)(b) of the said Act. Subletting, assigning or otherwise parting

with possession of the whole or part of the premises without his

consent was not proved.

17. In (1999) SCC 263 Resham Singh Vs. Raghubir Singh & Ors.,

Supreme Court while analyzing the disputed contention where both

the respondents were brothers and tenancy had been executed in

favour of one brother, the said brother being involved in a criminal

proceeding had absconded for a considerable period; physical

presence of the said person in the premises being absent for a

considerable time; as a natural corollary his brother looked after

the shop in his absence; it did amount to a subletting. Court had

held that no evidence of a relationship of a lessee and lessor

between the two brothers had been proved by the landlord.

18. In (1998) 3 SCC 57 Jagan Nath Vs. Chander Bhan the

following observations of the Apex Court are relevant:

"The parting with possession must be by the tenant. Parting with possession means given possession to persons other than those to whom possession had been given by the lease. User by other person is not parting possession so long as the tenant retains the legal possession himself. 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.

19. In AIR 1984 SC 1447 Jagdish Prasad Vs. Angoori Devi a

Bench of the Allahabad High court while dealing with the U.P.

Urban Buildings (Regulation of Letting, Rent and Eviction) Act had

held that mere presence of a person other than the tenant in the

shop could not lead to a presumption of subletting. This answers

the vehement contention of the learned counsel for the appellant

that Narender, newphew of Bishamber Dayal was found sitting at

the time of the visit of the local commissioner establishing that the

premises had been sublet. RW-1 Bishamber Dayal had (as noted

supra) explained in his deposition that his newphew Narender used

to help him for one hour daily in the shop for preparing bills/slips.

The control of the premises was continuously with Bishamber

Dayal and the business was being run by him.

20. These factual findings returned in the impugned judgment

calls for no interference. The landlord/petitioner has failed to show

that Ram Avtar was in exclusive possession of said shop; there was

no relationship of lessee and lessor between the two brothers i.e.

Bishamber Dayal and Ram Avtar. Merely because the food grain

licence was in the name of respondent no.2, it cannot be said that

the business was of respondent no.2. The visit of the local

commissioner (AW-4) in the earlier eviction petition clearly

evidenced that the board on the shop site had depicted the name of

Bishmaber Dayal Aggarwal as the proprietor of the business being

run from the shop. RW-8 who was known to both the parties had

reaffirmed this on oath. Document Ex. RW-1/1 was rightly relied

upon by trial judge to advance the submission of respondent no.1

that he made efforts to obtain the ARD in his name but the

government policy did not permit it; as per government policy the

ARD could only be given to the person holding the licence of the

fair price shop. It was in these circumstances only that the ARD

was issued in the name of respondent no.2. On 1.1.1977 a

partnership had been formed between respondent no.1 and the

respondent no.2 whereby respondent no.2 was permitted half user

of the said shop. It was not a case of exclusive possession of

respondent no.2. Respondent no.1 always continued to retain the

possession of the suit premises. Subletting was rightly held not to

be proved.

21. Impugned judgment calls for no interference on any score.

Appeal is without merit. It is dismissed.

INDERMEET KAUR, J.

MARCH 18, 2011 nandan