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Pragowati Devi Vs. Bhawani Shankek Basrurker - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 13D of l961
Judge
Reported in3(1967)DLT545
ActsDelhi Rent Control Act, 1958 - Sections 14
AppellantPragowati Devi
RespondentBhawani Shankek Basrurker
Advocates: D.D. Chawla and; R.L. Tandon, Advs.
Cases ReferredJiwan Dass v. Devi Bai. and
Excerpt:
.....as well. (7) then shri chawla contented that the conclusion of the rent controller as well as the rent tribunal on the ground that the landlady bona fide required the premises for her occupation is nit correct. with reference to the negation of the first ground, it has to be borne in mind that the tenant in his reply to the application expressly denied that the premises were originally let for residential purposes and put forward the contention that no purpose whatever was stipulated as part of the tenancy agreement and 'he tenant was at liberty to put the premises to any use he liked. p 7 thereforee, in the light of the paucity of the evidence on the part of the landlady in this behalf, i cannto find fault with the conclusion of the rent controller as well as the tribunal on this..........appeal. (7) then shri chawla contented that the conclusion of the rent controller as well as the rent tribunal on the ground that the landlady bona fide required the premises for her occupation is nit correct. here again, the claim of the landlady has been rejected on two grounds : (i) it was nto proved that the premises in question was originally let for residential purposes, as required by proviso (e) to section 14, and (ii) the landlady had toher reasonably suitable residential accommodation. with reference to the negation of the first ground, it has to be borne in mind that the tenant in his reply to the application expressly denied that the premises were originally let for residential purposes and put forward the contention that no purpose whatever was stipulated as part of the.....
Judgment:

M.M. Ismail, J.

(1) The landlady, who is the appellant before this Court, filed an application under section .14 of the Delhi Rent Control Ait, 1958, for the eviction of the respondent-tenant on several grounds, two of which alone were argued before me and those two grounds, as set out in the application, are as follows :

'(I)that the tenant has sublet, assigned, and toherwise parted with the possession of a part of the premises without obtaining the consent in writing from the landlady ; and (ii) the premises let for residential purposes are required bona fide by the landlady and for members of her family, and the landlady has no toher reasonably suitable accommodation.'

(2) The respondent-tenant denied the allegations contained in the application. He expressly stated that there was no agreement as to the letting purpose or to the nature of user to which the premises would be put and it was, thereforee, incorrect that the premises were residential. He further denied that the premises were let for residential purposes only and contended that there was no agreement limiting the manner of user of the premises. He also denied that the premises were bona fide required by 'he appellant had no toher reasonably suitable accommodation. With regard to the allegation of subletting assignment, or toherwise parting with the possession of any part of the premises, the same was also denied by the respondent-tenant. The Rent Controller on the first ground held in favor of the appellant, but on the second ground held against the appellant. In view of his finding on the first ground, he passed an order for recovery of possession of the premises in favor of the appellant. Against this order the respondent had preferred an appeal to the Rent Control Tribunal, who by an order dated 22nd August, l961, reversed the finding of the Rent Controller on the first ground and confiemed the finding of the Rent Controller on the second ground with the result the appeal was allowed and the petition for eviction was dismissed. It is under these circumstances the second appeal has been preferred to this Court.

(3) Shri Chawla, appearing for the appellant, challenged the finding of the Rent Control Tribunal on the first ground and the findings of buth the Rent Controller and Rent Control Tribunal on the second ground. Before dealing with the contention of the learned counsel, it is necessary to mention as to what exactly was the evidence that was available before the Tribunals below. The landlady, who was examined as P. W. 3, did nto give any evidence as to the allegation of sub-letting, assignment, or parting with possession of the premises in question. It is only A. W. 5 who stated something with regard to this and he too stated that the respondent herein for the last 1' or 2 years sublet the portion of these premises to one Nair. This was all the evidence that was available on behalf of the landlady with reference to this allegation. On the toher hand, the respondent-tenant stated in his evidence that Shri Nair was working as P. A. to his father and subsequently was work ing as such to himself. It was his father's wish expressed before his death that Shri Nair and his wife should be allowed to remain in the premises to look after the respondent and his mtoher, and accordingly Shri Nair and his wife were living in the premises in question, the respondent was nto collecting any rent from Shri Nair, Shri Nair and hi, wife were allowed the exclusive use of one room, the toher portions of the premises were in joint use, and a joint mess for the respondent Shri Nair and his wife was run by a servant of the respondent. Shri Nair himself gave evidence and he stated that he was residing in the house since March, 1958, i.e, even before the death of the respondent's father, and he and his wife were using one room while the toher portions of the house were being used by all the three He further stated that the respondent's house-hold articles were kept even in their bed-room which was in their use. It is on the basis of this evidence that the Rent Controller and the Tribunal came to different conclusions with regard to the ground alleged by the appellant. On appreciation of this evidence the Tribunal stated as follows :

'THEcircumstances of the case and the conduct of the parties showed that all that was intended was that Nair should be granted a personal privilege with no interest in the promises and he is merely a licensee. In this view of the matter I am fortified by the law laid down in Murray pull & Co. Ltd. v. Murray and. Errington v. Errington. The facts of these cases were somewhat similar to the present case. I, thereforee, hold that the possession of Nair of the room in his possession was that of a mere licensee. By no stretch of imagination it can be said that the tenant parted with possession of any part of the premises in favor of Nair. The legal possession of the tenancy premises all through remained with the tenant.'

(4) It is this finding of the Rent Control Tribunal that was challenged before me by the learned counsel for the appellant and he strongly relied upon the fact that the tenant himself admitted that exclusive possession on one room was given to Shri Nair and his wife. In this context a decision of S. K. Kapur, J. reported in G. D. Chaudhary v. Anand Surup', was brought to my ntoice The facts of that case were somewhat similar to the facts of the present case. In that decision the learned Judge observed as follows :

'Iam of the opinion that so long as the lessee retains the legal possession of the whole of the premises he does nto commit a breach of law against parting with possession by allowing toher people to use the same ...........In any view a tenant cannto 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 If there is anything in the nature of a right to concurrent user there is no parting with possession. Retention of a key may be negative indictum but ntohing short of a complete exclusion of the granger or licensor from the legal possession for all purposes amounts to a parting with possession.'

(5) If I may say so with respect. I am in complete agreement with the principles laid down by the learned Judge. On the facts of this case, it cannto be said that the respondent was completely excluded from the legal possession for all pupspoes even with reference to that one room which was in the exclusive user of Shri Nair and his wife From the nature of the case that room being a bed room in the user of the couple, it could nto have been anything but meant for the exclusive use of that couple. thereforee, from the grant of exclusive us' of one room in this context, it cannto be said that the respandent-tenant has parted with the possession of that room within the scope of Section 14 clause (b) of the. proviso. In any event, if the Tribunal has drawn that conclusion from the evidence, as stated above, it cannto be said that such a conclusion involves a substantial question of law falling within the scope of section 39(2)of the Delhi Rent Control Act 1958 Shri Chawla referred to the decision of the Punjab High Court in Jiwan Dass v. Devi Bai. and drew my attention to a paragraph occurring as follows on-page 426 of the Reports (pages 1012 and 1013 of 66 P.L.R.) :

'MR.Kapur. as a last resort, sought to contend that the learned Single Judge could nto interfere in appeal because there was no substantial question of law arising for determination. We are unable to agree with this contention as well. The entire approach of the Tribunal was erroneous. The tribunal was ttoally oblivious of the requirement of law and his approach to the entire case was from a wrong angle. In this situation it cannto be said that there was no substantial question of law arising .for determination by the learned Single Judge.'

(6) As far as the present case is concerned, it cannto be said that the entire approach of the Tribunal was erroneous or the Tribunal was ttoally oblivious of the requirement of law or the approach of the Tribunal to the entire case was from a wrong angle. Whether one agrees with the conclusion of the Tribunal or nto, certainly it cannto be said that the interference drawn by the Tribunal from the facts and evidence placed before it is nto a possible inference which any Court or Tribunal can draw. In view of this I am of the view that this part of the order does nto call for any interference in this second appeal.

(7) Then Shri Chawla contented that the conclusion of the Rent Controller as well as the Rent Tribunal on the ground that the landlady bona fide required the premises for her occupation is nit correct. Here again, the claim of the landlady has been rejected on two grounds : (i) it was nto proved that the premises in question was originally let for residential purposes, as required by proviso (e) to section 14, and (ii) the landlady had toher reasonably suitable residential accommodation. With reference to the negation of the first ground, it has to be borne in mind that the tenant in his reply to the application expressly denied that the premises were originally let for residential purposes and put forward the contention that no purpose whatever was stipulated as part of the tenancy agreement and 'he tenant was at liberty to put the premises to any use he liked. In this situation, certainly the onus was on the landlady to prove that the premises were originally let out for residential purposes. Admittedly, the landlady in her evidence did nto say anything in this behalf. The document, Ex. P. 15/A. dated 1st August, 1940, which was the rent ntoe between the original landlord and the tenant did nto specify either expressly or by necessary implication that it was let for residential purpose. Shri Chawla relied upon Ex. P. 7 which was the certificate of completion of the construction by the New Delhi Municipal Committee, wherein it was described as 'residential quarters.' However, I am of the view that Ex. P. 7, which is dated 11th October, 1939, cannto be of any assistance, since the point with which we are concerned is that the premises should have been let for residential purposes and that cannto certainly be proved by Ex. P 7 thereforee, in the light of the paucity of the evidence on the part of the landlady in this behalf, I cannto find fault with the conclusion of the Rent Controller as well as the Tribunal on this aspect.

(8) With regard to the second point, Shri Chawla contended that the landlady had five sons and two daughters even though only one son, two unmarried daughters could be said to be members of the family of the landlady dependent on her within the scope of proviso (e) to section 14. His contention was that in arriving at a conclusion whether the appellant has toherwise reasonably suitable accommodation or nto, the Rent Controller or the Tribunal ought to have taken into account that in the present premises the appellant's toher sons were also living Along with her and consequently the existing accommidation in that context cannto be said to be a reasonably suitable accommodation for the landlady and her minor son and the two unmarried daughters, and the Rent Controller and the Tribunal did nto approach this question from that a.ngle. The learned counsel for the respondent on the toher hand pointed out to me that there is absolutely no evidence to show that the toher independent sons of the landlady were also reaiding with the landlady in the premises in question and without there being any evidence in that behalf the Tribunal's below cannto be blamed for nto approaching the question from that angle. I may point out here that this is a case which suffers .from paucity of evidence on the side of the landlady and on the materials that had been placed before the Tribunals, I cannto say that the contention of the Respondent 1n this behalf is nto well-founded On the evidence that has been placed before the Tribunal's below I am of the opinion that there is no scope for any argument of the kind put forward by the learned counsel lor the appellant before me In any event, I am nto able to find that any substantial question of law arises out of the findings of the Tribunal below on this question.

(9) In view of these considerations, I dismiss the second appeal but without costs.

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