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Gomti Devi Vs. Om Parkash and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 270 of 1977
Judge
Reported in15(1979)DLT291; 1979RLR217
ActsDelhi Rent Control Act, 1958 - Sections 25
AppellantGomti Devi
RespondentOm Parkash and anr.
Excerpt:
.....circumstantial evidence. if that be so, the objector would be clearly outside the mischief of the eviction order and within the protection of the proviso to section 25 of the act, as having an independent title to the premises by virtue of being a tenant under the landlady. (4) would the position of the objector vis-a-vis the protection be any different, even if it be assumed that he had failed to establish the relationship of landlord and tenant......an order of eviction made against the tenant merely because such a person would nevertheless be a person in occupation of the premises, even though neither under the tenant nor at his instance would such a person be deemed to have an 'independent title' to the premises within the meaning of the proviso even though he may not be able to establish the existence of a relationship of landlord and tenant or even the relationship of licensor and licensee such a person may, however, be in a permissive possession having its genesis in the authorisation by the landlord or in his content, express or his permission. it appears to me that the expression' title to the premises' would include a right to the premises, including the right to its possession and the right to possession need not extend to.....
Judgment:

H.L. Anand, J.

(1) Whether the claim of respondent No. 2 to protection under the proviso to S. 25 of the Delhi Rent Control Act 1958, is justified or not, is the only question that this Second Appeal by the landlady raises.

(2) Hari Kishan responent No. 2, for short, the objector, was a tenant in a portion of the property, of which the premises in dispute forms, part, in 1964, under one Ram Kishan, the owner of that portion. The objector, however, vacated that portion and later the same year came to occupy the premises in dispute, either as a tenant under the appellants, Gomti Devi, as alleged by the objector, or was inducted into it by one 0m Parkash, respondent No. 1, the so- called tenant, as alleged by the Landlady. In 1975, the landlady filed a petition against 0m Parkash, respondent No. 1, for his eviction from the premises in dispute on the allegation that he had sublet the premises to the objector in 1968 and the objector has been inoccupation thereof since then. The objector was not imp leaded as a party. The written statement filed on behalf of 0m Parkash, which contains an indication that it was prepared by or through the counsel for the landlady, did not contest the claim for eviction and an eviction order was obtained by the landlady on November, 24, 1975. The landlady sought execution of the order and obtained an order of lock-breaking on the basis of a report of the bailiff that the objector, who was in occupation, had locked and gone somewhere. The objector was accordingly dispossessed by breaking open of the lock. The objector filed objections subsequent to eviction under section 25 of the Act and prayed for the restoration of the premises on the ground that he had been in possession of it as a tenant under the landlady since August, 1964. It was further alleged that 0m Parkash had never been the tenant in respect of the said premises, and that the landlady had obtained the eviction order fraudulently in collusion with 0m Parkash. The claim of the objector was resisted by the landlady on the plea that the premises had been let out by her to 0m Parkash, who hid himself shifted to his brother's house after inducting the objector in 1968, At the trial of the objections, the objector produced copies of entries in the electoral roll. Exhibit A-1 to Exhibit A-8, Exhibit O.W.6/4, an extract from the birth regular, besides a clerk of the Municipal Corporation of Delhi with the survey report. According to Exhibits A-1 to A-8, the name of the objector was recorded as a voter in 1965 with reference to the premises in dispute. It further indicates that the name of 0m Parkash was not entered as a voter with reference to the said premises. According to the copy of the birth register, O.W.6/4, the wife of the obJector gave birth to a child on February; 1966, and the address of the premises in dispute is indicated in the entry. According to O.W.2, Clerk of the Municipal Corporation, the Suvery Report in respect of the property, which was prepared on June 24, 1967, indicated that one Hari Ram, an apparent mistake for Hari Kishan, is recorded as a tenant, but there is no person of the name of 0m Parkash entered as such. Parties also produced oral evidence and in the course of her statement, the landlady admitted that she was maintaining regular records with regard to payment of rent by 0m Parkash, but failed to produce the same. On the material on record, the Controller returned the finding that the objector had been in occupation of the premises in dispute since 1964; that 0m Parkash never occupied that part of the premises as a tenant and could not have, thereforee, inducted the objector into the premises; that the objector had, thereforee, been in possession of the premises in his own right, that the eviction order was the result of collusive proceedings, and the objector was thereforee, entitled to the restoration of the demised premises and accordingly ordered the same. The Tribunal has upheld the order of the Controller and has) in addition, pointed out that the collusive nature of the proceedings was also indicated by the fact that the reply to the eviction petition filed before the Controller, purporting to be signed by 0m Parkash, had been apparently prepared through counsel for the landlady as the name of the counsel appeared at the foot of the reply and had been scored off.

(3) Learned counsel for the landlady was unable to challenge the condurent findings of fact by the Courts below that the objector has been in occupation of the premises in dispute since 1964; that 0m Parkash was never in occupation of premises in dispute; that the objector could not have been inductied into the premises by 0m Parkash, and had, thereforee, been in occupation n- dependently of 0m Parkash, but, nevertheless disputed the claim or the objector to protection of the proviso to section 25 of the Act. It was urged that the protection of the proviso to Section 25 was available only if the objector qualified to be a person 'who has an independent title to such premises', as envisaaged by the proviso, and that the objector could be said to have an independent title to the premises only if he had successfully established that he was a tenant under the landlady and that the material on record did not justify such a conclusion. The Controller, and the Tribunal, according to the learned counsel, having found the fact of the continued occupation of the objector since 1964 fell in the error of presuming that the objector must have been in occupation as a tenant, and that the finding of the Courts below on the question of the nature of the possession of the objector was based on no evidence. It is no doubt true that the objector was unable to produce any receipt executed by or on behalf of the landlady in his favor. It is equally true that the claim of the objector that he had been in occupation as a tenant under the landlady and had been paying rent to her regularly, even though without any receipt, and had, thereforee, the authority of the landlady to occupay the premises, was denied by the landlady when she appeared as per own witness. Documentary evidence is, however, not the only form of evidence. The existence of relationship between the landlord and tenant may be proved, like any other fact, by oral evidence circumstantial evidence. Even the interested oral testimony of a party does not cease to be a piece of evidence and could, thereforee, be legitimately accepted as a foundation for a finding of fact. The claim of the objector, that he has been in occupation of the premises in dispute as a tenant under the landlady since 1964, was disputed on the ground that I he objector had been inducted into the premises in 1968 by one 0m Parkash. who was said to be the tenant. The objector established on record by documentary evidence that he had been in occupation of the premises in dispute since before 1968. He also made a statement on oath, and produced other oral evidence, to the effect that he had been in occupation since 1964 as a tenant under the landlady. The contention of the landlady that 0m Parkash was a tenant of the premises and had inducted the objector into it has been repelled and so has been the contetion that the objector has not been in possession between 1964 and 1968. If that be so, a finding of fact that the objector has been a tenant since 1964 could not be said to be based on no evidence nor could it be said that no Tribunal would on this material arrive at a such a conclusion. On the contrary, such a conclusion is a possible conclusion to arrive at on the basis of the oral testimony of the objector, reinforced by the other material and the circumstances referred to above. If that be so, the objector would be clearly outside the mischief of the eviction order and within the protection of the proviso to section 25 of the Act, as having an independent title to the premises by virtue of being a tenant under the landlady.

(4) Would the position of the objector vis-a-vis the protection be any different, even if it be assumed that he had failed to establish the relationship of landlord and tenant. That raises a question as to the true construction of the proviso to section 25 of the Act. This is how the Section runs :-

'25Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18 be binding on all persons who may be in occupation of the premises and vacant possession thereof shall b3 given to the landlord by evicting all such persons there from; Provided that nothing in (his section shall apply to any person who has an independent title to such premises.'

The Section makes an order of eviction binding 'on all persons who may be in occupation of the premises' and entitles the landlord to vacant possession 'by evicting all such persons'. The extended binding effect of the order, however, does not 'apply to any person who has an independent title to such premises.' The administration of the provision would not present any difficulty with regard to the impact of an eviction order on persons who claim through the tenant. Either as sub-tenants, licenses or otherwise or who may have been illegally inducted into the premises by the tenant. Such person obviously would not have the protection of the proviso because they claim through the tenant and would, thereforee, be bound by the order. Similarly, the provision would not present any difficulty where the protection was sought by a person, who could establish that either he was holding the premises as a tenant under the landlord or, even if he had been inducted into the premises by the tenant, his derivative litle to the premises got perfected by virtue of the provisions of Sections 17 or 18 of the Act. A difficulty may, however, ariss with regard to a person, who may be in occupation of the premises, neither as a lenant under the landlord nor by virtue of induction, in whatever capacity, by the tenant and who, not being a trespasser, has been in occupation either as a licensese from the landlord or otherwise the authorisation premission or with the consent of the landlord, but not in the capacity of a tenant. Could such a person be evicted pursuant to an order of eviction made against the tenant merely because such a person would nevertheless be a person in occupation of the premises, even though neither under the tenant nor at his instance Would such a person be deemed to have an 'independent title' to the premises within the meaning of the proviso even though he may not be able to establish the existence of a relationship of landlord and tenant or even the relationship of licensor and licensee Such a person may, however, be in a permissive possession having its genesis in the authorisation by the landlord or in his content, express or his permission. It appears to me that the expression' title to the premises' would include a right to the premises, including the right to its possession and the right to possession need not extend to or be based on the tenancy or even a license because a person, who is in permissive possession by the authorisation of the landlord, completely independent of the tenant, sought to be evicted, would nevertheless be entitled to continued possession of the premises and be entitled to the protection of the proviso. What is material is that such a person must not claim through the tenant and has come inpeaceful possession of the premises by an authorisation, express or implied of the landlord. If that be so, on the undisputed finding of the Courts below that 0m Parkash was never a tenant of the premises, that the objector had been in possession of the premises since 1964, the objector would be outside the reach of the eviction order and be entitled to the protection of the provisoi even if one were to ignore an unfortunate feature of the proceedings i.e. their collusive nature, an aspect on which the Tribunal has made an appropriate comment when it observed that the reply of 0m Parkash had been prepared by the counsel, who had appeared for the landlady. Which ever way, thereforee, one looks at the question as to the precise relationship that the objector has been able to establish, on the material on record, one is irresistably led to the conclusion that the objector was not bound by the order of eviction, was entitled to the protection of the proviso and was, thereforee rightly held entitled to the restoration of the premises.

(5) The two decisions of this Court, on which reliance was placed on behalf of the landlady, do not appear tome to be inconsistent with the way I have looked at the question. In the case of Vidyawanti, a Division Bench of this Court, held that a person claiming to be the real tenant was not bound by an eviction order if he was not a party to the proceedings. The contention that a person could qualify for the protection only if he had title to the property, independently of the owner, was repelled. In the case of Rattan Devi, this court found that the Tribunal had not given any finding as to the nature of the entitlement to possession and the matter was, thereforee, remanded with a direction that the Tribunal should give a clear finding if the occupant was a tenant or not. Mere possession was held to be insufficient. The large question posed by me earlier in the case of Kailash Chand and answered in the present case, did not arise for consideration in the two cases referred to above.

(6) In the result the appeal fails and is hereby dismissed with costs.


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