Rajindar Sacher, J.
(1) This is an appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) against the Judgment of the Rent Control Tribunal dated December 18, 1962, by which he set aside the order of the Additional Rent Controller dated August 25, 1962, and ordered the eviction of the appellant tenant from the premises in dispute.
(2) The ficts .re that the appellant tenant Gurdial Singh is a tenant under the respondents of Quarter No 10 Block No. 205, C. Plot No. 69-A, bazar Road, Bengali Market, New Delhi. Ob a monthly rent of Rs. 23.91. On December 31, 1959, an application was brought by the respondent-landlord against the appellant under Section 14 of the Act on allegations that he had sub-let assigned or otherwise parted with possession of the premises in dispute to respondent No.4, Dr.Jagde v Singh Mummick, without his written consent and also on the ground that neither the tenant nor any member of his family had been residing in the premises in question for a period of 6 months immediately before the filing of the ejectment application. The appellant-tenant admitted the tenancy and the agreed rate of rent. He, however, controverter the allegation that he had sub-let or assigned or parted with possession of the premises in dispute to respondent No. 4. It was alleged by the appellant that respondent No. 4 was his relative (his wife's brother) and that he has never parted with possession of the premises. The Additional Rent Controller by his order dated August 25, 1962, held that no sub-letting or parting with possession of the property by the appellant in favor of respondent No 4 was proved. He found that respondent No. 4 was the brother of the wife of the appellant tenant and had been merely allowed to occupy the premises as a relation because he had been evicted from another house in which he was living He also found that there was no evidence, not even a suggestion that any rent had been paid by respondent No.4 to the appellant He also found that there was evidence which he was prepared to believe that the house-hold effects and furniture of appellant-tenant had been lying in the premises. As regards the ground of non-occupation of the premises for a period of 6 months immediately preceding the date of the filing of the application, the Additional Rent Controller found that the appellant had been nested in Delhi from 11th August, 1959 to 5th October, 1989 and that he during this period had been residing at Delhi along with his family sequently found that the appellant did reside in the house in dispute within 6 months before the prevent application was filed i.e 31st December, 1959. He, thereforee, dismissed the application.
(3) Aggrieved against the said order, the landlord filed an appeal before the Rent Control Tribunal. The Tribunal agreed with the Rent Controller that the appellant had resided in the premises in dispute within 6 months before the date of the application for ejectment i. e. 31st December, 1959 and consequently held that this ground was not available to the landlord-respondent. He also agreed With the Rent Controller that there was no proof of the payment of the rent fry respondent No 4 to the appellant and, thereforee, it was not possible to spell out the case of subletting from the evidence on record and he, thereforee, held that it was not the case of sub-letting. The Rent Control Tribunal, however, held that even assuming for the sake of argument that in a portion of these premises some house-hold effects of the tenant continued to lie while he was posted at Bombay, it is a case of parting with possession of a portion of the premises in dispute as respondent No. 4 was admittedly in possession of the portion of the house. He repelled the contention of the appellant-tenant that respondent No. 4 was only a licensee and was allowed to use the premises as according to the Rent Control Tribunal it did not matter whether the premises were used byrespondent No. 4 as a licensee or as a sub-lessee Consequently the Kent Control Tribunal came to a finding that the appellant had parted with the possession of premises in dispute without the consent in writing of the landlord and was liable to eviction. As regards the allegations of non-occupation of the premises by the appellant-tenant, the Tribunal affirmed the finding of the Rent Controller and found that the appellant was posted in Dlehi from 11th August. 1959 to 5th October, 1959 and further he lived in the premises in dispute with his family during this period and, thereforee, the ejectment application brought on 31st December, 1959 could not furnish the cause of ejectment against the appellant tenant under proviso (d) of Section' 14(1) of the Act. In view, however, of the finding that the appellant had parted with the possession of the premises in dispute, the Tribunal 'accepted the appeal of the landlord and set aside the order of the Additional Rent Controller and passed an order of eviction from the premises against the appellant-tenant. It is against this order that the present appeal has been filed by the appellant- tenant.
(4) It is necessary to mention a few facts which are no longer in dispute. Respondent No. 4, Dr. Jagdev Singh Mummick is the brother of the wife of the appellant-tenant. He was previbdsly living in house No. 20 Bazar Basti and a decree for eviction was passed against him. He then shifted to the premises in dispute where he stayed for about a year and a half. Later on he constructed his own house in Green Park and then shifted there since January, 1961. Thus he remained in occupation of the house from middle of 1958 up to the end of 1930. Both the Courts below have concurrently held that he never paid any rent to the appellant. Dr J. S. Mummick has appeared as R. W 2 and has clearly stated that he lived in the premises in dispute without payment of rent and only with the permission of the appellant as his guest. This was the position which he also out forward at the earliest stage when Mr. R P. Aggarwal was sent as a Local Commissioner to inspect the premises in dispute on 1st January, 1960 it is pertinent to notice that this was in pursuance of an ex-parte order as the application for ejectment was filled on 31st December 1959). In the report maded by Mr, Aggarwal it is clearly stated that on his asking J. S. Munmick. he was told that he was living in the house as aguest for the last 8/10 months.
(ii) Originally the tenancy was with the father of the appellant S. Karam Singh who has died and since 1959 the tenancy is with the appellant, Gurdial Singh. The appellant was posted in Delhi till March 1958 whereinafter he was posted at Moradabad. From 10th August, 1959 to 25th September, 1959 the appellant was pasted in Delhi and lived in these premises with his family during that period. Earlier to this period also for some days the appellant used to come to Delhi in connection with his official work and would stay in the premises in dispute. The appellant was posted at Gorakhpur from October, 1959 to March 1960 and was at Bombay from March, 1960 to 1962. He was thereafter posted in Delhi since 1962 and has been here eversince The appellant has stated and it has not been disputed that when he was coming to Delhi on official duty he had been staying in the premises in dispute.
(5) Mr. Bah learned counsel for the appellant has challenged the findings of the Rent Control Tribunal to the effect that the appellant had parted with the possession of the premises to respondent No. 4. He urges that there is a fundamental error in the finding given by the Rent Control Tribunal inasmuch as he has assumed that merely because respondent No. 4 was allowed to use the premises in dispute it necessarily means that there has been parting with possession of the premises as contemplated by proviso (b) of sub-section (1) of Section 14 of the Act. He submits that before a tenant could be ordered to be ejected from the premises in dispute on this ground it must be shown that there has been. parting with legal possession. According to the learned counsel the possession implies the legal possession and unless it is proved that the appellant had parted with the legal possession to respondent No 4 the order of the Tribunal cannot be up-held. Mr. Bali submits that the appellant is employed in the Railway Protection Police Force and that his posting even at Bombay or Moradabad required him to come to Delhi frequently in connection with his official duty. According to Mr. Bali the appellant never intended to give up the possession of the premises in dispute and all the time he intended retaining it. He submits that the job of the appellant was such that he was liable to be posted back to Delhi and this was an additional reason for the appellant to have retained the premises. Mr. Bali has also referred me to the plan of the house Ex. A 3 and pointed out that there are only two rooms and the house is such that it cannot be used by two families independently and can only be used by persons residing in it together. This argument is pressed for the purpose of showing that there had been no parting with possession of the premises in dispute to respondent No 4 Mr. Bali also urges that even the Rent Control Tribunal has found that a part of the furniture had been left in the house in dispute. According to him this is a further proof of the fact that no parting with possession of the premises has taken place. Mr. Bali also submitted that even before the local commissioner, Mr R.P. Aggarwal, it was clearly stated by respondent No. 4. that he was staying on merely as a guest of the appellant and this also shows that there was no parting with possession of the premises.
(6) Mr. Bhagwat Dayal, learned counsel for the respondents, on the other hand, submitted that this was clearly a case of parting with possession of the premises in dispute to respondent No. 4. According to the learned counsel for the respondents the appellant had been transferred out of Delhi and it was not possible for him to be certain when he would be posted back in Delhi. The argument being that as the appellant had been posted out of Delhi it cannot be suggested that he had any intention to come back to Delhi and was, thereforee, retaining the house. According to the learned counsel, the house had been given over to respondent No. 4 against whom a decree for eviction had been passed and the possession, thereforee, must be held to be with respondent No- 4 and not with the appellant, with the result that the appellant would thereby incur the penalty of being evicted from the premises in dispute. The question on those admitted facts, thereforee, boils down to this whether there has been parting with possession of the premises in dispute to respondent No. 4 by the appellant. The Tribunal has taken the view that all that proviso (b) of Section 14(1) of the Act requires is that if there is a parting with possession of a portion or whole of the premises in whatever capacity i.e. whether as a licensee or otherwise it will amount to parting with possession. It is the correctness or otherwise of this view that was canvassed before me by both the learned counsel.
(7) Mr. Bali has referred to Seth Narainbhai Jchhuram Kurmi and another v. Narbada Prasad Sheosahai Pande and submitted that possession includes legal possession and unless it is held that legal possession had been parted with ejectment cannot be ordered. He referred to the observations which are as follows:-
' It confuses bare occupation with possession The two are very different The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess and the right and ability to exclude others from possession and control coupled with a mental element, namely the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need he.'
this case was dealing with the question of adverse possession and was to much help to the matter in controversy before me. The next case he referred was Padmaraju Subba Raja and others v. admaraju Koneti Raju. This case was dealing with the provision of action 145 Criminal Procedure Code and is not of any assistance to the matter belore me. He then referred to S. R. Mitroo and another v. Youngmen's Chris- in Association, New Delhi in that case the dispate was whether the refendant who had been allowed to occupy the rooms by Y.M.C.A,. had ten right of tenancy or a licensee. Exclusive possession was put forward the reason to claim tenancy but this was negatived with the remarks:
'The advent of the rent Acts has increased the importance of the difference between a license and a lease. Courts have now evolved a new type of license namely a permissive occupation falling short of a tenancy which confer? the right to exclusive possession of premises and has most of the attributes of a tenancy, and yet lacks the estate in land which is a necessary incident of a tenancy. So exclusive possession is not inconsistent with a license.'
Mr. Bali referred to this case for the purpose of showing that even if respondent No. 4 was to be held to be in exclusive possession his occupation would still be that of a licensee and hence no parting with possession to him would be established. He also referred to Mrs. M.N. Clubwala and another v. Fida Hussain Saheb, where their lordships of the Supreme observed that the fact that he premises are in exclusive possession of a person would not always lake him a lessee and that the surrounding circumstances and, the conjuct of the parties had to be borne in mind in ascertaining the real relationship between the parties. The next case referred to by Mr. bali was H.C. Sharma v. Life Insurance Corporation'. In that case premises were let out to the Life Insurance Corporation and it had permitted one of its employees to use the same for residential purpose. An application for eviction was brought on the ground that the Life Insurance Corporation had sub-let or parted with possession of the premises without the written consent of the landlord. Deshpande J., while considering the question whether by permitting the officer to use the premises the Corporation had parted with the possession, held it did not so amount and observed as follows:-
'It would, thereforee, appear that the meaning of 'possession' in the phrase 'parting with possession' is legal possession or possession in law and not the actual possession in fact. The possession of Shri Chakravarti, though exclusive, is only possession in fact. The possession in law is with the Corporation'. * * * * * * 'In fact, the mere parting with physical possession was dealt with not in the covenant against assigning, subletting and parting with possession but in a different covenant, which prohibited the lease from sufferring any person to use 'use' or 'occupy' the premises. This latter covenant is wider than the covenant against parting with possession. (Paragraph 1361 Woodfall on Landlord and Tenant, 26th Edn.) This latter covenant has not been embodied in proviso (b) to sub-section (1) of section 14 of the Act. It is not the mere use or occupation of the premises in the ordinary sense that is forbidden by proviso (b) to sub-section (1) of section 14. What is forbidden is the parting with the legal possession.'
Mr. Bhagwat Dayal, the learner counsel for the respondents, however, submitted that the interpretation of the word 'parting with possession' only denotes that the tenant is no longer living in the house and has thereby allowed some body else to use the premises. According to him the appellant in this case had been transferred out of Delhi and was admittedly not living in the premises excepting for the short duration in August/September, 1959, and for some times when he was coming on tour to Delhi. According to the learned counsel this showed that the possession of the premises was not with responded No. 4 and the mere fact that it.has not been proved that he has been paying any rent does not mean that the appellant had not parted with possession to respondent No. 4: The argument of Mr. Bhagwat Dayal in effect is that once it is proved that a tenant is not himself physically living in the house, but some body else is living in the house, it must amount to parting with possession of the premises. He in this connection placed great reliance on Skinner v. Geary 913 1 2, K.B.D. 546. In that case a tenant bad shitted out of the premises in dispute before 1919, but by his permission first a sister of his wife and later on his own sister were living in the premises. In 1930 notice to quit the premises was served on the tenant. It was found that the tenant was not in actual possession of the honse at the material time and anorder for eviction was passed against the tenant. Mr. Bhagwit Dayal had referred to the various passages in the judgment to show that the Rent Act protects the possession of a tenant who is in occupation of the house himself and do not protect a tenant who is no longer living in the house. He referred especially to the following passage in the judgment of Scrutton L. J. at page 561:-
'A non-occupying tenant was in my opinion never within the precints of the Acts, which were dealing only with an occupying tenant who had a right to stay in and not be turned out. This case is to be decided on the principle that the Acts do not apply to a person who is not personally occupying the house and who has no intention of returning to it.'
and the observation of Slesser L. J. at page 569 :-
'I agree with the Scrutton L J. that although a person may be absent from the premises for a time, yet, if he has an intention to return to them, it may fairly be said that he is still in actually possession and thereforee entitled to be protected. In this case the county court judge has found as a fact that the appellant Geary is not in actual occupation, that those who were in actual occupation were not there to preserve the house as a residence for him, and that he did not intend to return to the house in order to occupy it. On those findings the county court judge was right in making the order which he did.'
In my view this case is obviously distinguishable. In this ease the findings were clear that for ten years the tenant and his wife had been residing at another house ten miles off, the tenant was not in actual occupation, that the occupation of the relations of the tenant was not for the purposes of preserving the house for the tenant and that at no time did he contemplate residing in the house again. It was on this finding that it was held that the protection of the Rent Ristriction Act was not available to such a tenant. The question as to what amounts to parting with possession was not even dealt with as it did not arise. The only question dealt with as to whether in such a situation where a tenant has left the premises and has no intention of coming back he could still get the protection of the Rent Act when he was not occupying the premises himself but some other relations of his was occupying it. The answer given was that the Rent Act was meant to protect the person who was intending to live in the premises and if it was found as a matter of fact that the tenant had no intention of living in the house he cannot be allowed the protection of the Rent Act and to retain the house for the use of others. The next case referred was Raidy and others v. Walkar. In that case, however, the point to be decided was whether a company could be a statutory tenant under the Act so as to enjoy the protection afforded under section 5 of the Increase of Rent and Mortgage Intarest (Restrictions) Act, 1920 as amended by S. 4 of the Rent and Mortgage Interest Restrictions Act, 1923. Acton J. referring to the earlier case of Skinner v. Geary held that as the Court of Appeal had held that the Act only protected actual occupation by a tenant, the company cannot be a tenant because it connot obviously occupy the premises itself. This case is, thereforee, only an authority under the English Rent Act for the proposition that the company cannot be a tenant under the Rent Act there. This authority also does not dealt with the point before me. Incidentally it may be noted that no court has held in this country that a company cannot be a tenant within the meaning of the Rent Act. The learned counsel then referred to Cove v. Flick. In that case the premises had been let to a tenant in the year 1938. His parents as and sister were also living with him at that time. In or about 1949 the tenant married and went to live elsewhere, but he left his furniture in the premises and intended to return should one of his parents die or his sister leave. In 1953 in an action for ejectment brought against the tenant it was pleaded that he should be deemed to be occupying the premises for himself as he intended to go back in case one of his parents die or his sister leave. The Court of Appeal, however, held that this was too continent a possibility and, thereforee, it cannot amount to occupation of the premises himself and the principle of Skinner v. Geary was applied. In this case also it would be seen that the tenant had by his act indicated that he did not intend to occupy the premises but wanted the protection of the Act on the ground that his relations were occupying it. This was negatived on the basis that protection of the Act could only be available to a person occupying the premises himself. The next case referred to is Finkle v. Strzelozyk. In that case it was found that as the tenant had without the permission of the landlord sub let the portion of the premises, he was liable to be evicted. This has no relevance to the case before me. In all these cases cited by Mr. Bhagwat Dayal none of them dealt with the question of parting with possession of the premises. As a matter of fact none of these cases actually deal with such an evenduality. All of them, I find, deal with the situation where .the tenant had left the premises with no intention to come back and the question arose whether in that eventuality he would be entitled to protection under the Rent Act. The answer given was that the tenant wes not entitled to the protection under the Kent Act. The question dealt with in those cases was very different and had no connection with the matter before me. The covenant in a lease deed against parting with possession is a usual covenant which is found in most of the lease deeds both in England and in India. This covenant has been the subject matter of a decision in a number of cases. It will now be useful to make a reference to them. In Jackson v. Simons the question was whether the defendant- tenant committed any breach of the covenant of lease which was underletting or parting with possession of a part of the demised premises. The facts were that the tenant without the landlords consent or knowledge agreed to allow the proprietor of a night club carried on in a basement beneath the shop to use the front part of the shop bet been the hours of 10. 30 p.m. and 2.0. a.m. for sale of tickets of admission to the club. The arrangement continued for almost two years and the question that arose was whether this amounted to breach of covenant by the tenant. Romer J. held that no breach of covenant by underletting or parting with possession of a part of the demised premises took place. His lordship observed as follows :-
'All that was conferred upon Mr. Harron was, as it seems to me, a mere privilege or license to use a part of the demised premises: see Daly v. Edwardes also Frank Warr & Co. v. London County Council'. The defendant moreover retained the legal possession of the whole of the premises at all material times and, as pointed out by Romer J. in Peebles v. Crosthwaits, a lessee who retains such possession does not commit a breach of a covenant against parting with possession by allowing other people to use the premises. The defendant did not thereforee, in my judgment, commit any breach of the covenant against under letting or parting with the possession of the demised premises or any part thereof.'
His lordship also considered the question whether the fact of the sharing of the possession of a part of the demised premises was included within the covenant of parting with the possession of a part of the premises and held that it did not. His lordship observed as follows:-
'A covenant against assigning the demised premises, a covenant against underletting the demised premises, and a covenant against parting with the posssession of the demised premises are thereforee three distinct covenants, though all belonging to the same class, and if there be any other method of disposing of the demised premises that would not amount to an assigning, underletting, or parting with possession, a covenant not to dispose of the demised premises would be another and a different covenant of the same class, though including, perhaps, all three of the covenants already mentioned. In the same way, a covenant against sharing the possession is another distinct covenant, for, as already pointed out, a covenant against parting with the possession of the demised premises is not broken by sharing the possession with another.'
This authority is, thereforee, an authority for the proposition that simply because the tenant had allowed another person to use or share the premises it does not amount to a breach of covemant, not to part with the possession or part of the possession of the premises. This case was referred to with approval by the Court of Appeal in Chaplin v. Smith. In that case a lessee had covenanted with his Lesser that he would not assign or underlet or part with possession of the demised premises or any part thereof. He assigned his business to a company of which he was a Managing Director. The question that arose was that whether that amounted to the brea,chof the covenant and it was held that there Was no breach of the lessee's covenant not to part with the possession of the premises or any part thereof. Bankes L. J. observed at page 205 as follows :-
'If the new company was ready in the circumstances to enter into an agreement for the use of the premises while the appellant remained in possession at lessee to the respondent there is nothing in law to prevent this arrangement or give to it an effect other than that which the parties intended. If so, there is no breach of the covenant. The learned judge accepts the facts ; but must have held that a man cannot permit another to occupy and at the same time himself remain in possession. In my opinion it is quite possible in in law to do so. I would cite first Jackson v. Simons 'The lessee of a double fronted shop with a door in the middle and counter on either side, who has covenanted not to part with possession of the demised premises or any part thereof, may surely agree to allow a licensee to carry on a business in one part while the lessee himself remains in possession of the whole premises and carries on his own business in the other part. In that case there is no parting with possession, and I see no distinction between that case and this.'
Warrington L. J. held that there was no parting with the possession of the premises and observed as follows :-
'On these facts did the appellant part with possession of the premises Certainly he never meant to do 80. Must he nevertheless be held in law to have done so In the absence of authority I should say that a man may abstain from parting with possession of premises although he allows another to use them, and that then he does not commit a breach of this covenant. In the circumstances of this case seeing that the appellant remained in control of each of the companies the facts show that he was really and truly carrying on the business of others on his own premises which remained his from first to last. If so, he never parted with possession of them. But even if we must regard the companies as carrying on there own business by being allowed to use the premises, the case is then covered by the authorities cired by Bankes L. J.'
Scrutton L. J. observed as follows :- The learned Judge seems to have proceeded thus : He found the company in occupation ; he treated it as being in exclusive occupation and thereforee in possession, and concluded that the lessee must have patted with possession and so incurred a forfeiture. The flaw in this reasoning is that the occupation was merely that of a licensee. Such an occupation is not necessarily exclusive.' He also referred to a following passage from Foa on 'Landlord and Tenant' 6th Edition (1924) page 323 lying down ;s correct statement of law:-
'The mere act of letting other persons into possession by the 'tenant, and permitting them to use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of the covenant.'
Similar view was taken in Stening v. Abrahams', where Farewell J. observed as follows:
'But in my view a lessee cannot be said to part with the possession of any part of the premises unless his agreement with bids 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 a negative indicium and the authorities on the whole show that nothing short of a complete exclusion of the grantor or license' from the legal possession for all purposes amounts to a parting with possession.'
Some of these authorities referred to above were referred to and relied upon by Subha Rao J, (as he then was) in Gundlaepali Rangamannar Chttty v. Desurangjh. Reference may also be made to F. S. Hugh v. Sukha Singh cited by Mr. Bhagwat Dayal who wanted to rely on this case to point out that there was a difference between the East Punjab Rent Restriction Act and Delhi Rent Control Act inamuch as experession parting with the possession was not used in East Punjab Rent Restriction Act. Suggestion of the learned counsel was that addition of the word 'parting with possession meant that the mere physical occupation by another person would amount to parting with possession' by the tenant and that it was not necessary that parting with possession, should amount to porting with legal possession by the tenant. This case, however, is no authority for this. All that it says is that parting with possession of a whole or park of the premises even to a licensee may incur the penalty of ejectmant under the Delhi Rent Control Act unlike East Punjab Urban. Rent Restriction Act. The question however, is not whether the occupation by respondent No. 4 is that of a licensee, but whether the.appellant has completely given up and parted with the possession of the premis in dispute and that the same were with respondent No. to the ouster of the appellant. In the Punjab case their lordship definitely found that the rent had been paid by the person in occupation and thereforee, it was a case of sab-letting, Deshpande J. in H. C. Sharma v. Life Insurance Corporation of India referred to this case and observed, with respect, rightly that the said observations in the Punjab case were more obiter and it was clear that their lordships were not dealing with the point under decision before me. Mr. Bhagwat Dayal, next referred to R. B. Nand Lal Tikhu v. S. Hurgopal Singh (Civil Revision No. 529-0/1957 decided on 15th November, 1961,by Shamsher BahadurJ, In that case one Hargopal had taken the tenancy in March, 1952. But soon after a year he shifted from there with-bis famliy and was living with his father-in-law in another house. The evidence which was accepted by the learned judge was that the house was now in the occupation of the nephew of Hargopal who was living away form the house and had no intention to come back It was under these circumstances that it was found that Hargopal had parted with possession to las nephew and he was liable to ejectment. It would be seen that the distinguishing feature in that case is that there was evidence that the tenant had shifted from the premises and had virtually substituted his nephew as a tenant. Not only the physical possession but the legal possession of it had really been transferred to the nephew. It was under these circamstances that: it was held that the tenant had parted with the possession. There was no finding that even it temporarily the tenant had left the premises and had allowed the user of it to some other person this would amount to parting with the possession Another case referred to is Bhagwat Parasad v. Dwarka Prasad. In that case the learned judge found that the tenant was ruuining a tailor business in the shop and allowed a vegetable seller to keep his vegatable and fruit in the shop regularly and this would amount to sharing his shop with the vegetable seller. On this finding his lordship found that this amounted to parting with possession of the shop. With very great respect to the learned judge, I must differ with his conclusion that sharing of possession amounted to parting with possession of the premises, that these two covenants, namely sharing of the possession and the parting with possession of the demised premises are separate covenants as was aptly pointed by Romer J in Jackson v. Stmons. Moreover there is no discassion in this case as to the meaning of the word parting with the possession. It seems to have been assumed that simply because the tenant who was himself running the tailor shop in the premises allowed another to keep vegetables there he committed a breach of the provision of the Act by parting with the possession by merely allowing another person allowing to use a part of the premises. This conclusion is contrary to the settled law on the subject and I must with great respect to the learned judge dissent with his conclusion.
(11) In England. consistent view has been taken by the authorities that so long as lessee remains in possession be may permit another person to use the demised premises without committing a breach of the covenant not to part with the possession of the demised premises, and that the covenant of this nature is not broken so long as a leasee retains legal possossion by allowing other persons to use the premises either under a license or under a declaration of trust vide Woodfall's Law of Landlord and Tenant Vol. 1, 27th Edition, page .523 In this view of the law it is to be seen whether the view of the Rent Control Tribunal that the appellant has parted, with possession of the demised promises, is supportable in law or by precedent, Mr Bhagwat Dayal in support of the judgment of the Rent Contra Tribunal submits that the appellant having been transferred out of Delhi it must be assured that he .had no intention, of retaining the premise and, thereforee, when he permited his brother-in-law to use the premises it was really parting .with possession and, thereforeethis case is covered by proviso (b) of Section 14(1) of the Act. In my view there is no force in this contention of Mr. Bhagwat Dayal. It is admitted that respondent N0. 4 who is, the brother-in law of the appellant remained in occupation of the premises for a year and vacated the premises in January, 1961 It is also proved on record that even during the period respondent No. 4 was occupying the premises the appellant and his family lived in the premises for over a month at a time and also on a number of occasions when the appellant used to come to Delhi. Respondent No 4 never claimed to have any rights even that of a licensee to use the premises. He throughout maintained that he was a mere guest and was living with the permission of the appellant. The relationship of the appellant and respondent No. 4 cannot also be over-looked. In these circumstances, was there any justification for the Tribunal to come to the conclusion that the appellant had parted with the possession of the demised premises to respondent No. t. It seems to me that the Tribunal has completely misdirected himself regarding the position in law. It is not the law that no sooner does any person other than a lessee occupies a premises it must beheld that the tenant has parted with possession of the. demised premises What has to be seen in each case is whether the 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. There is not even a hint of all these in the evidence on the record with the contrary the re:o-d is replete wih the evidence that the possession and user by resppondent No-4 was with the permission of the appellant and defendant on his individual consent. Mr. Bhagwat Dayal suggested that as the appellant hid bean transferred out of Delhi, it must be assumed that he had no intention to come back and, thereforee, there was no reason for him to retain the house. I do not agree that that is a correct interpretation of the material on record. The appellant is admittedly in service which is an all India one and was liable to be transferred back and forth to Delhi, It would not be un-reasonable to expect the appellant to retain the house for his own use even during the time he was transferred out of Delhi so as to be able to use it when he is transferred back. Keeping in view the exorbitant rate of rents in Delhi and the scarcity of accommodation it would not be unreasonable for the appellant to have decided to retain the house with him even wnen he was transferred for some time out of Delhi. That the appellant intended to do this would also be clear from the fact that even though respondent No. 4 left the premises in January, 1961 the premises were not released and were retained by the appellant during the period be was posted at Bombay. The appellat was posted back to Delhi in 1962 and if the contention of Mr. Bhagwat Dayal was correct that the premises were retained only for the use of respondent No. 4 and that, in fact the possession of the premises had been parted with the respondent No. 4 there does not seem to be any reason why the appellant retained the premises with him after January, 1961, when admittedly he was posted back to Delhi in 1962. Mr. Bhagwat Dayal suggested that this might have been because proceedings for ejectment were pending at that time. But that in my opinion would have no relevancy because if the appellant had intended to give up the possession of the premises and was not hoping of being posted back to Delhi, there would be no reason for him to retail the premises even in 1961. The fact that he retained the premises is consistent with his conduct and Explanationn that the premises were all through retained by him and were in his possession and that he had allowed his sister and her husband and the family only ta use the premises for the time that they were unable to have their own alternative accommodation. The fact of the appellant having also used these premises during the Interval betore he was posted back to Delhi also shows that his contact, possession and occupation of the premises was never broken. Another fact which the tribunal also accepted namely that the furniture of the tenant was also in the premises in dispate supports the assertion of the appellant that he was retaining these premises for himself. Mr. Bhagwat Dayal contended that if this interpretation was to be given then it would be open to unscrupluous tenants to put any person in possession of the house and unless the landlord was able to show that the tent had been paid by him to evade the provision of the Rent Act In my view there is no scope for such is apprehension. Proviso (d) of Section 14(1) of the Act proviles that a tenant is ilable to bs evicted if the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of 6 months immediately before the date of the filing of the application for recovery of possession thereof. This clause obviously requires the occupation by a tenant or any member of his family so as to keep alive the protection under the Act. This clause in my view suffieciently protects the rights of the landlord to recover possession if he is able to show that the tenant or the member of his family have not resided in the premises for a period of six months. This emphasis In proviso (d) of Section 14(1) of the Act is on residence and, thereforee, the tenant would be liable to be evicted irrespective of the fact whether he had parted with possession within the meaning of proviso (b) of Section 14(1) of the Act. The wording of proviso (b) also shows that the provision wherein the word 'parting with possession' is used has to be read differently from proviso (d) where emphasis is on residence by the tenant himself or his members of the family. Under proviso (d) of Section 14(1) the landlord, thereforee, would be able to obtain possession If he shows that neither the tenant nor the members of his family has resided therein with in a period of 6 months. In that view, thereforee, the apprehestion which Mr. Bhagwat Dayal fears that the tenant will but in an outsider to occupy the premises without incurring the liability for eviction is any foundation. After giving my anxious consideration I am of the view that the Rent Control Tribunal seriously misdirected himself on a question of law and his judgment cannot be sustained. I, thereforee, set aside the judgment of the Rent Controller and dismiss the application of the landlord for ejectment.
(12) The result is that appeal is allowed but in the circumstances of the case there will be no order as to costs.