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Padam Chand JaIn Vs. Mahabir Pershad and Sons and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 464 of 1968
Judge
Reported in11(1975)DLT51; 1975RLR383
ActsDelhi Rent Control Act, 1958 - Sections 14 and 39
AppellantPadam Chand Jain
RespondentMahabir Pershad and Sons and anr.
Advocates: Ravinder Sethi and; H.D. Triyogi, Advs
Cases ReferredKundan Lal (supra). In Abdul Aziz v. Mohd. Yaqub (supra
Excerpt:
.....in writing of the landlord. eviction is sought by the landlord under section 14(i)(b) of delhi rent control act. b & c plead that the premises were sublet on 1st april 1947 and thereforee, the provisions of section 14(i)(b) were not attracted. for the landlord, it was contended that the rent controller and the tribunal wrongly placed the initial burden of proof on the landlord as regards the date on which sub-letting took place. ; that the power of the controller to pass an order for the recovery of possession of the premises in question depends upon the question as to whether the portion in the occupation of the sub-tenant was sublet on or after june 9,1952. the said date is thus a condition precedent for the exercise of the power by the controller, and, thereforee, the initial..........chand jain against the order of the rent control tribunal, delhi, dated july 25, 1968, dismissing rent control appeal no. 1611 of 1966, and thereby confirming an order of the controller. delhi, dated november 7, 1966, in suit no. 1203 of 1964.(2) padam chand jain filed an application on december 30. 1964. in the court of controller, delhi, against (1) m/s mahabir pershad & sons and (2) m/s attar chand jain & sons, under section 14 of the delhi rent control act, 1958, for eviction of the said respondents from the premises bearing no. 3729, katra dhoomi mal, churi walan, c^hawri bazar, delhi. the application was numbered as suit no. 1203 of 1964. the applicant, padam chand jain. allege d in his application that m/s mahabir pershad & sons, (first respondent) was an old tenant in respect of.....
Judgment:

T.V.R. Tatachari, J.

(1) This Second Appeal has been filed by Padam Chand Jain against the order of the Rent Control Tribunal, Delhi, dated July 25, 1968, dismissing Rent Control Appeal No. 1611 of 1966, and thereby confirming an order of the Controller. Delhi, dated November 7, 1966, in Suit No. 1203 of 1964.

(2) Padam Chand Jain filed an application on December 30. 1964. in the Court of Controller, Delhi, against (1) M/s Mahabir Pershad & Sons and (2) M/s Attar Chand Jain & Sons, under Section 14 of the Delhi Rent Control Act, 1958, for eviction of the said respondents from the premises bearing No. 3729, Katra Dhoomi Mal, Churi Walan, C^hawri Bazar, Delhi. The application was numbered as Suit No. 1203 of 1964. The applicant, Padam Chand Jain. allege d in his application that M/s Mahabir Pershad & Sons, (first respondent) was an old tenant in respect of the aforesaid premises at a monthly rent of Rs. 137.50 and was already in occupation of the same in 1938 when the father of Padam Chand Jain purchased the property, that the tenant sublet, assigned or parted with possession of a portion of the premises in 1958 in favor of the second respondent M/s. Attar Chand Jain & Sons, without his permission in writting, and that both the respondents were, thereforee, liable to be evicted on the ground contained in clause (b) of the proviso to subsection (1) of Section 14 of the Delhi Rent Control Act, 1958.

(3) In the written statement filed by the respondents, the tenancy and the rate of rent as well as the sub-letting of a porion of the premises to the second respondent were admitted It was, however, pleaded that -the sub-letting was made not in 1958 but with effect from April 1, 1947, on a yearly rent of Rs. 240.00 which was later on increased to Rs. 246.00 and then to Rs. 2521-, and that consequently clause (b) of the proviso to sub-section (1) of Section 14 did not apply.

(4) A perusal of clause (b) of the proviso to sub-section ( I ) of Section 14 shows that the said clause applies only- if the sub-letting took place on or after June 9, 1952. Thus, on the pleadings of the parties, the only question for determination was as to when the subletting had taken place. On a consideration of the oral and documentary evidence adduced by the parties, the Controller, by his order, dated November 7, 1966, held that the applicant-landlord, on whom the initial burden of proof lay, failed to establish that the portion of the suit premises was sublet to the second respondent on or after June 9, 1952. In that view, the Controller dismissed the application.

(5) Against the said order, Padam Chand Jain preferred an appeal, Rent Control Appeal No. 1611 of 1966, to the Rent Control Tribunal at Delhi. By an order, dated July 25, 1968, the Tribunal also held that the applicant-landlord failed to prove that the first respondent sublet, assigned or otherwise parted with possession of a portion of the premises in question in favor of the second respondent on or after June 9, 1952, and that he would even believe that the second respondent was inducted as sub-tenant in a part of the premises in dispute by the first respondent in 1947, and title second respondent has continued to occupy the same since then in that capacity. Accordingly, the Rent Control Tribunal dismissed the appeal. It is against that order that the present Second Appeal, S.A.O. No. 464 of 1968, has been filed by Padam Chand Jain in this Court under Section 39 of the Delhi Rent Control Act, 1958.

(6) Mr. Ravinder Sethi, learned counsel for the appellant-landlord. contended, firstly, that the Controller and the Rent Control Tribunal placed the initial burden wrongly on the landlord as regards the date on which the subletting took place, and their orders were, thereforee, vitiated thereby. The learned counsel referred to the decisions in Firm Shiv Sharan Krishan Kumar and another v. Lala Maharaj Mal and others, (1967) 69 P.L.R. 9; Kishan Chand' v. Kundan Lal (1967) 69 P.L.R. 57, Abu and another v. Chekkil Ponnambath Beebi, 1970 (3) R.C.J. 970; and Abdul Aziz v. Mohd. Yaqub, 1971 (4) R.C.J. 492 .

(7) The main question for determination in the case was as regards the date on which the first respondent sublet a portion of the premises to the second respondent. Section 14(1) of the Delhi Rent Control Act, 1958, creates a bar against the passing of an order for the recovery of possession of the premises- But, the proviso to the subsection lifts the bar, and enables the Controller to pass an order for recovery of possession if one or more of the conditions specified in clauses (a) to (1) of the proviso exist. It is now settled by the decision of a Full Bench of this Court in Kedar Nath and another v. Smt. Mohini Devi, etc. I.L.R. (74) Delhi 151 that the initial burden lies upon the landlord to establish that any of the conditions mentioned in the clauses (a) to (1) of the proviso exists (vide at page 170-1 of the report). In the present case, the relevant clause of the proviso is clause (b) which reads as under:-

'(B)that the tenant has, on or after the 9th day of .Tune, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.'

(8) It is clear from the clause that the power of the Controller to pass an order for the recovery of possession of the premises in q lies- lion depends upon the question as to whether the portion in the occupation of the second respondent was sublet on or after June 9, 1952. The said date is thus a condition precedent for the exercise of the power by the Controller, and, thereforee, the initial burden lies on the landlord who files the application for eviction to establish the said date. After he adduces evidence regarding the date, the tenant or the sub-tenant may then adduce evidence in rebuttal. The decisions referred to by the learned counsel are not of much assistance on the question under consideration. In the case of Firm Shiv Sharan Krishan Kumar (supra) a third person was admittedly found to be in possession of the premises. There was thus admittedly a new occupant, and it was held that it was for the tenant to explain how he parted with the possession of the building to the new occupant as that would be within the knowledge of the tenant and the landlord could not know in what circumstances the new occupant came into possession. To the same effect is the decision in Kishan Chand v Kundan Lal (supra). In Abdul Aziz v. Mohd. Yaqub (supra), it was held that once if was admitted that persons other than the tenant had been in the house, the onus of explaining their presence was on the tenant. It has tb be noted that the question regarding the date of subleting or parting with possession which is a condition precedent for the exercise of the power of the Controller for ordering recovery of the possession of the premises under clause (b) of the proviso to Section 14(1) did not arise in the said decisions, and they cannot, thereforee, be of much assistance to the counsel in the present case. On the other hand, in Abu and another v. Chekkil Ponnambath Beebi (supra), it was held that while the initial onus of proving subletting is on the landlord, and once the Court is satisfied that there has been a transfer of possession, the onus may shift and the tenant within whose special knowledge the facts explaining the manner in which such possession has been transferred lic, may have to bear the burden thereafter. Thus, the first contention of the learned counsel that the Controller and the Rent Control Tribunal wrongly placed the initial burden of proof on the landlord cannot, thereforee, be accepted.

(9) The learned counsel next contended that the findings of the Rent Control Tribunal and the Controller, though concurrent, on the question as to when the subletting had taken place, were not borne our by the evidence on the record, and that their findings were, thereforee, vitiated. The question for determination was clearly one of fact, and both the Controller and the Rent Control Tribunal gave a concurrent finding on the said question of fact. It is, thereforee, not open to this Court to reassess the evidence in this second appeal under Section 39 of the Rent Control Act. Even otherwise, there is no merit in the contention as explained below.

(10) The landlord, besides examining himself as A.W.4, examined three other witnesses A.Ws I to 3. A.W.I was stated to be another tenant of the landlord, but no receipt for rent was issued to him and no document was produced as to when he became a tenant. He could not state the year in which he saw the second respondent in the suit premises for the first time, and could not even recognise the second respondent. A.W.2 was stated to be the first cousin of the landlord. He stated that the, second respondent occupied a portion to the premises in question about 8 or 9 years prior to the date of hi? deposition, but could not give the year in which the subletting took place. A.W.3 was a local commissioner appointed by the Controller. and he reported to the Court that the second respondent was in possession of a portion of the suit premises. As that was admitted by the parties, the report of the commissioner was not of much importance. A.W.4 was the ' landlord himself. In his application for eviction he alleged that the subletting took place in 1958, but in his evidence he stated that it had taken place in 1955-56 or in 1956-57. He could not thus be definite about the date. Both the Controller and the Rent Control Tribunal, on a consideration of the statements of the witnesses, hold in my opinion rightly, that no reliance could be placed upon the said oral evidence adduced by the landlord.

(11) The landlord filed certified copies of entries in the House-tax Assessment record of the Municipal Corporation of Delhi for the years 1950 and 1955 as Exhibits P.2 and P.3. In Exhibit P.2, for the years 1950, Mahabir Pershad and Raj Kumar were shown as tenants in occupation of the building in question, but one portion of it was mentioned as locked. The Controller observed that it was possible that the portion locked might have been with the second respondent. In Exhibit P.3, for the year 1955, Attar Chand was mentioned as a tenant paying a rent of Rs. 60.00 per month. It was contended on behalf of the landlord that the second respondent could thus be said to have come into occupation only in 1955 not at an earlier point of time. The Controller rejected the said contention pointing out that Exhibit P.2 could not be conclusive as the landlord did not produce the assessment records of 1951 and 1952. He added that it was well settled that enquiries and assessment by the employees of the Corporation were not conclusive proof of the facts contained in the assessment record as the said employees' make enquiries at the spot. and just record any fact mentioned by any person present at the premises. The Controller, thereforee, held that it could not be said from Exhibits P.2 and P.3 that the second respondent occupied a part of the premises after June 9,1952. The Rent Control Tribunal took the view that the entries as found in Exhibits P.2 and P.3 were not in , way inconsistent with the case of the respondents, since the headings in the columns of the assessment record show that the name of only the tenant was required to be entered in the assessment record and the name of the sub-tenant was not required to be so entered, and that the said doemnents had no value as evidence in support of the case of the landlord. The Rent Control Tribunal concluded' that there was thus no evidence worth the name for the landlord on record to prove his allegation that the subletting in favor of the second respondent was after June 9, 1952.

(12) The respondents-tenants, on their part, adduced both oral and documentary evidence. The oral evidence consisted of seven witnesses, R.Ws. 1 to 7. R.Ws.l, 3 and 4 were c'ontractors, and they deposed that they had dealings with the second respondent and they had been seeing the second respondent in occupation of the portion of the premises in question since 1947-48. R.W.2 was a close relative ii of the second respondent and he deposed to the same effect. The witness also stated that he was related to the landlord also. R.W.5 was the Munim of the first respondent and he produced old accolfnl books of the first respondent firm. Copies of certain relevant entries in the aid accounts were marked as Exhibits R.I to R.I 6. Exhibit l R.I related to the period from April 1, 1947, to March 31, 1948. and Rs. 240.00 were shown as credited to the account of the firm of the first respondent from the firm of the second respondent as annual rent. It was stated in the evidence that Shri Attar Chand Jain was -the son-in-law of Mahabir Pershad 202 Jain and was, thereforee, allowed the use of the premises free for one year from April 1, 1947, and after that date he was charged a concessional rate due to the close relationship. Relying on the said entries, the Controller held that the account books of the first respondent left no doubt that Shri Attar Chand came to occupy a part of the premises some years before June 9, 1952. R.W.6 was Attar Chand Jain who stated that he never obtained receipts for rent paid to the first respondent. R.W.7 was a partner of the first respondent. It was contended on behalf of the landlord before the Rent Control Tribunal that the entries in Exhibits R.I to R.16 diiring the period March, 1947, to March, 1957, show that the rent paid by the second respondent to the first respondent was credited as a reduction towards the expenses of the first respondent and that it should, thereforee, be held that the second respondent was a tenant of some premises other than the premises in dispute under the first respondent from 1947 to 1957, and that the second respondent was a tenant of the premises in dispute under the first respondent only during the period from 1957 to 1964. The Tribunal rejected the said contention on the ground that not a single question was put by the landlord's counsel either to R.W.5 or to R.W.6 or to R.W.7 suggesting either that the second respondent was a tenant of some premises other than the premises in dispute, or that the entries lead to an inference of the second respondent being a tenant under, the first respondent of some premises other than the premises in dispute until the year 1957 and of its becoming a tenant of the premises in dispute from the year 1958. The Tribunal believed the testimony of the witnesses examined by the respondents that the second respondent was in occupation of the portion in dispute since 1947, especially when the said oral evidence was corroborated by the documentary evidence Exhibits R.I to R.16.

(13) Thus, on a consideration of the entire evidence, oral and documentary, both the Controller and the Rent Control Tribunal gave a concurrent finding of fact that the landlord has not been able to establish that the subletting in favor of the second respondent took place after June 9, 1952.

(14) Mr. Ravinder Sethi, learned counsel for the appellants, sought to urge that the Controller and the Rent Control Tribunal misread the I entries in the documents, Exhibits P.2, R.] to R.16 and their finding was, thereforee, vitiated. As regards Exhibit P.2, Mr. Sethi submitted that in column 2, two house members 3729 and 3730 were mentioned, while in column 10 the locked portion was shown as against No. 3730 and, thereforee, the Controller was in error in thinking that the locked portion was in the premises in dispute (No. 3729) and the second respondent might have been in occupation thereof. A look at columns 2 and 10 in Exhibit P.2 shows that the word locked' and the names of Mahabir Pershad and Raj Kumar were bricketed and there is no clear indication that the word locked' is as against the number 3730. When there is no clear indication, no inference, such as is sought to be drawn by Mr. Sethi, is possible.

(15) Exhibits R.1 to R. 16 are copies of entries in the account books of respondent 1. Exhibits R.I to R.9 relate to the period from 1947 to 1957, while Exhibits R.IO to R.16 relate to 1958 to 1964. In Exhibits R.I to R.9, the rents received up to 1957 were shown as 'kirai khata ke jamma' (credit to the rent account), while the rent received after 1957 was shown in Exhibits R.IO to R.16 as 'kharec} khata ke jamma' (credit to sundry expenses). Mr. Sethi sought to argue that the said entries show that the premises occupied by the second respondent during the period 1947 to 1953 was different from the premises occupied during the period from 1957 to 1964, and that it should, therefoic, be held that the sec.ond respondent was a tenant of some premises other than the premises in dispute under the first respondent from 1947 to 1957, and that he was a tenant under the first respondent in respect of the suit premises only from 1957 onwards. This aspect was considered by the Tribunal, and it pointed out that no question was put and no suggestion was made to any of had no opportunity to explain them. Further, the argument sought to be urged by Mr. Sethi involves an appreciation of the evidence which cannot be done by this Court in this second appeal. Even otherwise, I do not think that there is any legal infirmity in the appreciation of the evidence by the Rent Control Tribunal. The concurrent finding of the Controller and the Rent Control Tribunal that the landlord has failed to establish that subletting took place after June 9, 1952, is one of fact, and no substantial question of law is involved in the case which calls for interference in this second appeal under Section 39 of the Delhi Rent Control Act.

(16) For the foregoing reasons, the Second Appeal fails, and S.A.O. No. 464 of 1968 is dismissed. In the circumstances, I make no order as to costs.


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