B.C. Misra, J.
(1) This second appeal under section 39 of the Delhi Rent Control Act 59 of 1958 (hereinafter referred to.as 'the Act') has been filed by the legal representative of the landlord against the appellate judgment of the Rent Control Tribunal, dated 10th September, 1970, by which the Tribunal has dismissed the appeal and affirmed the order of the Additional Controller dated 27th July, 1968, finally refusing the petition of the landlord turn eviction of the respondent-tenant on the ground of unlawful subletting, but for different reasons.
(2) The material facts of the case are that the first respondent before me is a tenant in respect of premises in dispute situared in Connaught Place, New Delhi. On or about 25th October 1961 the first respondent entered into a partnership with respondent No. 2 (copy Ex. Rw 5/1). On 12th June, 1963 the landlord, who was the predeceos -in-interest of the appellants, instituted a petition for eviction against respondent No. 1 in which respondent No. 2 was also imp leaded on the ground of unlawful subletting specified in clause (b) of the provise to sub section (1) to section 14 of the Act. It was alleged in the petition that respondent No. 1 had sublet, assigned or otherwise parted with possession of the premises in dispute in favor of respondent No. 2 after 1952 without the permission of the landlord, The petition was contested and the first respondent reply to paragraph 18 (a) of the petition urged that respondent No. 2 was a firm of the first respondent and was not a sub-tenant and it had no interest whatever in the tenancy or the premises and that the firm did not have any legal personality apart from its partners and no rent was being paid or agreed to be charged by the first respondent from the said firm and no possession of any part of the premises had been given or held by the partners of the firm other than the first respondent. In other words, the case of subletting was denied, but it was averred that there was a partnership between the first respondent and the second respondent. On this controversy, the parties proceeded to trial and Mr. S.R. Goel, Additional Controller, found that the partnership evidenced by Ex R5/1 was genuine and so the landlord had failed to prove the breach of clause (b) of the material proviso and he dismissed the petition for eviction.
(3) Feeling aggrieved, the legal representatives of the landlord (who died during the pendency of the proceedings before the Additional Controller), appealed to the Tribunal. The Tribunal reversed the finding of the Additional Controller that a genuine partnership had been proved, but after considering the material on record came to the conclusion that the first respondent had failed to prove that he was a partner of the second respondent and it, thereforee, reversed the finding with regard to genuineness of the partnership Having done that, the Tribunal applied its mind to the case as to whether the landlords had succeeded in proving the breach of clause (b) of the relevant proviso. The Tribunal observed ; 'what has to be seen in each case is whether a tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee'. On examination of the evidence, it found that it had no reason to disbelieve the evidence of the respondent-tenant on the point and in any case the evidence produced by the appellants was not in any way better than the evidence produced by the respondents and the onus being on the appellants they must fail. Accordingly, it held that the appellants had failed to prove that respondent No. 1 had sublet, assigned or otherwise parted with possession of a portion of the premises in dispute in favor of respondent No. 2. As a result, it dismissed the appeal and affirmed the decision of the Additional Controller.
(4) Hence the appellants have filed this appeal. Under section 39 of the Act, the appeal is confined only to determination of substantial question of law and the findings of fact are binding on this court in second appeal and cannot be agitated before it. However, I find that the lower appellate court has fallen into an error of law. It has not taken notice of sub-section (4) of section 14 of the Act, which reads
(5) In the instant case, the first respondent- tenant had set up a positive case of partnership and the Tribunal found that the same had not been established. As a result the Tribunal was bound to give effect to the legal presumption raised by sub-section (4) of section 14 of the Act. The Tribunal has observed that the onus of proof lay on the appellants. As a matter of law, it is correct that the initial onus to prove the grounds of eviction rests on the landlord and he must satisfy the Controller about the existence of the grounds specified in the various clauses of the proviso before he can obtain an order for eviction. But, it must not be forgotten that the facts which are within the special knowledge of the tenant must be proved by the tenant himself and tenant cannot take advantage of the onus of proof to withheld the best evidence in his possession or power to satisfy the Controller with regard to the correctness of the case set up by him. (See Gopal Krishna ji vs . Mohd. Haji Latif, : 3SCR862 .
(6) In the instant case, the landlord has alleged subletting, assignment or otherwise parting with possession. The tenant had set up a case of partnership thereby he admitted the possession of the premises by the second respondent. If the tenant had succeeded in proving his case of the parternership, it would have put an end to the matter, but if he failed to do so, then the appellants were entitled to the presumption that the tenant had really sublet the premises to the other persons whom he had alleged to be partners.
(7) The question of exclusive possession and effacement of the leagl possession of the tenant arises in cases of parting with possession and they are not relevant for the subletting set up by the landlord and denied by the tenant. A Division Bench of this court in Hazari Lal and Ram Babu v. Gian Ram, 1972 Rcr 74, has considered clause (b) of the relevant proviso in detail and has authoritatively laid down the rule of law in paragraph 10 of the report. I am in respectful agreement with the same. In Associated Hotels of India v. S.B. Sardar Ranjit Singh, : 2SCR548 , the Supreme Court has made very relevant observations with regard to subletting under the provisions of the Rent Act of 1952.
(8) The Tribunal below has relied upon a single Bench decision, G.D. Chowdhury v. Anand Sarup, 1966 Dlt 28. This was a case of the conception of parting with possession and eviction for subletting with the parting with possession. In paragraph 6 of the report, the learned Judge has observed that the landlord did establish that the alleged subtenant was in exclusive possession of a part of the premises and in view of the presumption arising thereforee it was for the tenant to establish that notwithstanding the grant of exclusive possession the tegal possession continued with the tenant, and the Rent Control Tribunal declined to place any reliance on the evidence of the tenant and draw an inference of fact that the legal possession had been parted with and this was an inference drawn from the facts of the case. In my opinion, this authority is not wholly relevant for the purpose of deciding the instant case. The Tribunal ought to have considered the entire evidence on record and decided the case on its own merits after drawing the legal presumptions according to section 14(4) of the Act and other provisions and principles of law. The judgment of the Rent Control Tribunal suffers from legal infirmity and is set aside.