M.L. Jain, J.
(1) Kampa Wati is the owner of the property in dispute, namely, first floor in premises No. 148-E, Kamla Nagar, Delhi, comprising two rooms. The property was let to Chander Kishore Sharma in 1961 on a rent of Rs. 55.00 per month. The landlady filed an eviction petition on the grounds of default in payment of rent on 2/11/1976. It was alleged that the tenant had not paid the arrears of rent despite notice of demand. At the time the petition was filed, rent of Rs. 490.00was in arrears. On 14/2/1977, she applied for amendment of the petition. The amended petition was filed on 12/4/1977, She pleaded an additional ground that the tenant had sublet, assigned or otherwise parted with possession of one room in favor of his son Chander Parkash, respondent No. 2, who is carrying on the watch repairing business in the name of Sheelak Watch Co. which was also added as a party. He is charging from him Rs. 50.00 p.m. Respondent No. 2 did not appear, while respondent No. 1 filed a written statement denying the arrears of rent. He denied that he sublet, assigned or otherwise parted with possession of the premises in favor of his son. He also pleaded that his son had no connection with Sheelak Watch Company nor was any such company run by him in the property in dispute.
(2) The learned Addl. Controller by his order dated 31-5-1979, in respect of arrears of rent under Clause (a) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (the Act) directed the tenant to deposit the same with effect from 1-6-1975 up-to-date at the rate of Rs, 55.00 per month within one month. He further directed that the tenant will be entitled to adjust the amount already paid. If the tenant complied with the order he would be deemed to have availed of the benefit of Section 14(2) of the Act and the eviction petition should stand satisfied. If the tenant failed to comply with the order, an order for recovery of the suit premises shall be deemed to have been passed in favor of the landlady and against the tenant.
(3) With regard to ground under Clause (b) of the aforesaid proviso, the Addl. Controller held that Chander Parkash was proprietor of Sheelak Watch Co. but he worked in ihe premises as a member of the family and no question of parting with legal possession in his favor could arise. There was no evidence about subletting as between father and son. The eviction petition was filed on 2-11-1976. In that, the petitioner did not invoke this ground and even not was unable to give the date of parting with possession. This ground was, thereforee, rejected.
(4) On appeal before the Rent.Control Tribunal the findings of the Addl. Controller with respect to the ground of eviction under Clause (a) were not challenged. Rather, it was separately contended by the landlady that the order of the Addl. Controller was not complied with which proceedings were finally disposed of by this court on 6-5-1983 in S.A.O. 311/81.
(5) With regard to ground (b) the Tribunal accepted the appeal and directed eviction. The learned Tribunal noted that the attorney of the landlady, one Sultan Singh(AW 1) deposed that appellant No. I was the tenant and he had sublet one of the rooms to his son. Contrary to his own written statement, the tenant admitted that Sheelak Watch Co. was his sons and the said company had an account in a Bank in Chawri Bazar. The address of the company was also the property in dispute. Chander Parkash (RW 3) deposed that he was doing the business of watches which he has since left and he is now settled in Poona. He stated that he had issued some cheques in the name of the landlady. The learned Tribunal, thereforee, held that Chander Parkash was the proprietor of Sheelak Watch Co. There is no such presumption that there can be no subletting or parting with possession or assignment of possession by the father in favor of the son. It relied upon Dr. Vijay Kumar v. Raghbir Singh 1973 R.L.R. 587. The learned Tribunal further proceeded to remark that appellant No. I pleaded complete denial but he failed to prove what he pleaded. The learned Tribunal found that Chander Parkash was very much functioning from the property in question and believed the landlady that in one of the two rooms son of the tenant was carrying on an independent business of repairs of watches. It hold that the plea put up by the tenant was false. It further held that it was a case of parting with possession. Hence, this second appeal.
(6) An appeal to this court lies only on a substantial question of law. Where the findings are pure findings of fact, the High Court cannot upset them in second appeal even if they be wrong : Giloo Mal v. Risal Singh 1982 Rlr 35 Shri Brijbans Kishore has submitted that the findings of the Tribunal are not only findings of fact but are proper and cannot be disturbed : Gauri Shanker v. Hindustan Trust & others 1972 Rlr 87. Yet, upon a reading of the judgment of the court below, it appears to me that it does raise a substantial question of law and it is a case in which interference by this Court is called for.
(7) In Dr. Vijay Kumar's case (supra), father was a tenant in a shop which was partitioned. In one portion the father was running a clinic. In the other portion the business of sale and purchase of motor parts was being carried on by his sons. The Rent Controller and the Tribunal and the High Court agreeing with them found that it was a case of parting with possession. An agreement was made in the Supreme Court that as a father it was natural for him to establish his son and, thereforee, he permitted them to occupy a portion of the shop. The Supreme Court considered it a plausible argument, but were not prepared to entertain it for the first time in the Special Leave Petition as it was not a pleading of law, but a pleading of fact. No presumption could be drawn from mere relationship of father and son or from joint living and joint messing that the sons were in permissive possession of the half portion. It is true that there is no presumption in law that a father or a son can never sublet, assign or otherwise part with possession of the tenanted premises in favor of the other. But it will be disastrous to hold that because the parent or progeny of the tenant lives or carries on business in the tenanted premises one must presume that there is some kind of parting with possession. Such an approach is not permitted by law, unless there are facts which unequivocally compel one to do so. The accepted way of life in this country is that a father and a son are normally expected to live together, earn together and spend their separate earnings for each other and the family. Cogent and strong facts are required to displace this life style. For these observations I will draw support from Smt. Krishnawati v. Shri Hans Raj, : 2SCR524 , wherein the Supreme Court held that if two persons live together in a house a husband and wife and if one of them who owns the house allows the other to carry on business in a part of it, it will be, in the absence of any other evidence a rash inference to draw that the owner has let out that part of the premises. In Hazari Lal & others v. Giasi Ram & others (1971) 1 Delhi 347, it has been laid down that mere user by the other person is not parting with possession so long as the tenant retains the legal possession himself or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. In Ahdul Hamid & another v Nur Mohd. (1976) 2 Delhi 250, tenant had been living together with his younger brother and other members of his family in the demised premises. He also rented another premises, leaving his younger brother in the previous premises. It was held that there was nothing to show in such a case either that there was actual subletting by one another to the other or that the brother tenant had legally precluded himself from claiming back possession of the demised premises so as to amount to parting with possession. In Madhavlal v. Smt. Govindi Bai 1971 Rcj 384, the tenant constructed 'Thala', that is a raised platform adjacent to the shop which had been leased out to him with the main shop, for putting up a betel shop for his nephew. Even though there was no evidence of joint funds in the betel shop, the court held that it must be accepted that the nephew was not a sub-tenant of the tenant and that he had not parted with possession of the while or any part of the premises in question. In Govindji Khera v. Padma Bhatia, : AIR1972Delhi239 , the father of the tenant was living in the premises as a member of the family. It was held that no question of subletting, assignment or parting with possession by the tenant arises in such a case. As a matter of fact, in case of close relationship, no inference could be drawn of sub-letting or of parting with possession : Nanakchand v. Sansarchand and another 1982 (2) Rlr 76. Here in this case, it is difficult to support the finding that the father had sublet or assigned the premises or parted with possession thereof in favor of the son.
(8) Shri Brijbans Kishore defended the judgment of the Tribunal and pointed to the circumstances which supported its findings. His first contention is that the proceedings against Chander Parkash were ex-parte. He deposed that he had been running a watch repairing shop 4-5 years back in a part of the premises and had given cheques to the landlady in 1970-71 towards rent. .He gave 5-6 cheques, someofRs.400.00 , 100.00 , and250.00 in her name. These cheques were of Sheelak Watch Co. He gave the cheques to his father who gave them to the landlady. He had an account in the Bank which was closed in April, 1977. His name also ceased to appear in the ration card with effect from 1977. It is contended that rent was Rs. 55.00 per month, but the amount of the cheques issued by the son were multiples of Rs. 50.00 and, thereforee, an inference has to be drawn that the father has sublet the premises to his son upon rent at the rate of Rs. 50.00 per month. The son did not produce the Bank record. In order to prove her contention the landlady had applied under Order I I Rules 12 and 14CPC to direct the tenant to discover on oath and produce in court cheque-books of the Central Bank of India in respect of the account of Sheelak Watch Co. and various pay-in-slips, but her application was unfortunately rejected. I think this record if produce would only show that Sheelak Watch Co. existed or not. But nothing would turn upon this because the existence of such a business and payment by cheques are admitted. It was next contended that no ration card prior to 1977 was produced and it should be inferred that the son had a separate business and lived apart from the father. To my mind want of such proof hardly will prove anything. If the son contributed a part of the rent he did so not because a part of the premises had been made over to him but it is a normal happening in an affectionate family that the dutiful son ever so does and the father does accept such help with delight and satisfaction as a marker of son's ability to shoulder the burden both in his life time and after. I am, thereforee, not prepared to say that the payment of rent in full or part large or small, or the absence of a ration card should lead one to think that the son lived in complete independence and the father had parted with possession of the premises. In this connection Shri Kishore also pointed out that there was no unanimity of thought between the father and the son. Father said that the son left the premises 4-5 months before, while the son said that he did so some four years back. How does this discrepancy matter It certainly does not prove that the son was an independent sub-lease of the father.
(9) It was then contended that the evidence of the tenant was rightly rejected being against the pleadings. It is no doubt the law that if a party gives evidence beyond the pleadings, no amount of such evidence can be looked into. Ordinarily, nothing which is not pleaded can be proved. The tenant pleaded that the son had no connection with Sheelak Watch Co. and no such company was ever him by him. But in his statement he reversed the stand. What then can be held against him is that he has not been able to prove that no watch company was there and that his son did not run such a shop. But. how does it mean that Sheelak Watch Co. was an entity separate from the family One must remember that the initial burden to prove the ground of eviction is on the landlord and not on the tenant. Tenant cannot be asked to prove the negative. He has failed to disprove what the landlady has proved, but even the facts proved by her do not advance her case. Since the son was a member of the family it is not possible to hold that the legal possession was parted with by the father in favor of the son. He has categorically stated that the son was living with him since the inception of the tenancy as a member of the family and that he never sublet, assigned or transferred the portion of the premises to his son.
(10) Lastly, it was submitted that the memo of parties in the present appeal, shows that the father and the son both have appealed and it was further proof that they were separate. To my mind, it only shows that their stakes are common and joint. thereforee, nothing turns upon the memo of the parties.
(11) It appears to me that it is not a case of subletting because no demise of immovable property as distinct from permissive possession has been proved : vide Smt. Krishnawati (supra). It was also not a case of assigning or of parting with possession. The findings of the learned Tribunal, there- fore call for interference.
(12) Consequently, I accept this appeal, set aside the order under appeal and dismiss the eviction petition. No costs.