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Bhagwat Pershad Vs. Shanti Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 18 of 1982
Judge
Reported in21(1982)DLT482
ActsDelhi Rent Control Act, 1958 - Sections 14(1) and 39
AppellantBhagwat Pershad
RespondentShanti Devi and ors.
Advocates: C.P. Wig and; P.C. Mittal, Advs
Cases Referred and Municipal Corp. v. Bhagwan Dass
Excerpt:
.....with him. the evidence of the landlady in this behalf of aw'2andaw3 who bad all stated that the premises in question had been sub-let by the tenant. there can be no quarrel with the aforesaid propositions which are now well-established. it is incumbent, under such circumstances, on the tenant to produce the partnership deed as well as the dissolution deed, if any. if the existence of partnership is admitted but the tenant does not produce the partnership deed then the court would be justified in coming to the conclusion that the best evidence has been withheld and it must be presumed that if the same had been produced it would have gone against the tenant and would have shown that, in law, the tenant had parted with possession of the premises. ' this statement clearly shows that he..........no. 5 for manufaturing of candles as alleged. the respondent no. 5 has never been in possession of tenanted premises and has no right, title or interest in respect thereof. it is replying respondent (tenant) alone who is in actual and exclu- sive possession of the premises in question without any interference of any person including the alleged respondents nos. 2 to 5'. the tribunal observed that when the tenant was cross-examined by respondent no. 5 he stated that there was a candle factory which bore the name of devi dutt durga parshad. it was also admitted that m/s. devi dutt durga parshad was a partner-ship firm but the tenant insisted that respondent no. 5 was not a partner therein. the tribunal further observed that the tenant had categorically stated that a partnership deed had.....
Judgment:

B.N. Kirpal, J.

(1) In this second appeal by the tenant the order of eviction passed against him by the Rent Control Tribunal, on an appeal having been filed by the respondent No. I-landlady, is being assailed.

(2) Respondent No. I (hereinafter referred to as 'the landlady' is the owner of premises No. 21 Ashoka Park, Rohtak Road, Delhi. The appellant -herein (hereinafter referred to as 'the tenant') was admittedly a tenant of these premises on a monthly rent of Rs. 320.00 . The landlady filed a petition for eviction under clauses (a), (b), (C) and (h) to the proviso to Sub-section

(1) of Section 14 of the Delhi Rent Control Act. The case of the landlady was that, on the facts alleged in the petition, she was entitled to an order of eviction being passed against the tenant under all of the above clauses. According to her the tenant had failed to pay rent despite notice of demand having been issued ; the premises have been sublet, assigned or otherwise parted with possession to respondents 2 to 5 without the consent of the landlady ; the premises had been let for residential purposes but were now being unauthorisedly used for commercial purposes; and the tenant had built or acquired vacant possession of another residence.

(3) The said petition was contested by the tenant as well as by respondent No. 5. The other respondents were proceeded ex parte. The various allegations which had been raised by the landlady were disputed by the tenant as well as by respondent No. 5.

(4) After the pleadings of the parties were complete, evidence was recorded. The Additional Rent Controller, by her order dated 6th February, 1979, dismissed the eviction petition. She held that the premises had not been sublet and the other points were also decided against the landlady.

(5) The landlady thereupon filed an appeal before the Rent Control Tribunal. With regard to the grounds of eviction under clauses (c) and (h) the Tribunal upheld the findings of the Addl. Rent Controller. The Tribunal , however, ordered the eviction of the tenant under clause (b) of the proviso to Sub-section (1) of Section 14. He held that on the evidence on record the ingredients of tile said proviso had been establihsed. Order of eviction having been passed, the tenant was given one month's time to vacate the premises.

(6) The present second appeal has been filed under Section 39 of the Act against the aforesaid judgment of the Rent Control Tribunal. The only question which has been agitated before me is as to whether the Tribunal was right in holding that the ingredients of clause (b) of the proviso to Sub-section (1) of Section 14 of the Act had been established.

(7) According to the landlady the premises had been sublet, assigned or parted with possession to respondents 2 to 5 without her consent in writing. She further alleged in the eviction petition that in the part of the premises respondent No. 5 had started a candle manufacturing factory under the name and style of M/s. Devi Dutt Durga Parshad. The tenant denied the allegations of sub-letting which had been made in the eviction petition. It was, inter-alia, contended by the tenant that he was in actual and exclusive possession of the premises and, in fact, respondents 2 to 4 were not even known to him. While admitting that Shri Raghubir, respondent No. 5, was his elder brother, it was contended by the tenant that he was not on good terms and speaking terms with him. It was also contended by the tenant that the premises had been let for residential-commercial and for purposes of running of a factory and the same were being used as such since the very inception of the tenancy. With regard to the alleged sub-letting in favor of respondent No. 5 the categorical averment of the tenant was that 'no part of the said premises is being used by the respondent No. 5 for manufaturing of candles as alleged. The respondent No. 5 has never been in possession of tenanted premises and has no right, title or interest in respect thereof. It is replying respondent (tenant) alone who is in actual and exclu- sive possession of the premises in question without any interference of any person including the alleged respondents Nos. 2 to 5'. The Tribunal observed that when the tenant was cross-examined by respondent No. 5 he stated that there was a candle factory which bore the name of Devi Dutt Durga Parshad. It was also admitted that M/s. Devi Dutt Durga Parshad was a partner-ship firm but the tenant insisted that respondent No. 5 was not a partner therein. The Tribunal further observed that the tenant had categorically stated that a partnership deed had been executed but according to the tenant the same had not been acted upon. The Tribunal found as a fact that, as was apparent from the statement of the tenant himself, a third person was in possession of the property. It is observed by the Tribunal that though the tenant, in his written statement, had took up the plea that no one else had been in actual possession of the property but in his crossexamination the tenant had to admit that the aforesaid partnership Film had been constituted. The Tribu- nal took note of the fact that the partnership deed had not been produced. Under Sub-section (4) of Section 14, according to the Tribunal, it was for the tenant to explain that the partnership was genuine. While holding that the non-production of the partnership deed was totally unexplained, the Tribunal came to the conclusion that the landlady's evidence to the effect that the property in question was in the possession of third persons should be believed. The evidence of the landlady in this behalf of AW'2andAW3 who bad all stated that the premises in question had been sub-let by the tenant.

(8) The finding that the premises had been sub let is essentially a finding of fact. The same can be assailed in a second appeal only if it can be shown that the said finding is perverse or is such which no person could have arrived at. According to the learned counsel for the tenant, while relying upon Hazari Lal and Rum Bobu v. Shri Gian Ram and others, 1972 R.C.R. 74, there can be no subletting if the legal possession of the premises in question is retained by the tenant. According to the learned counsel at the time when the notice under Section 106 of the Transfer of Property Act was issued on 9th October, 1974 there was no sub-tenant in the premises in question. According to the learned counsel, while relying upon Shri Muni Lal v. Shri Dulara Singh and anr. 1976 R.G.R. 220, in order to get an order of eviction on the ground of sub-letting it is necessary that at least on the date of notice terminating the tenancy the sub-tenant should be in possession of the premises in question. There can be no quarrel with the aforesaid propositions which are now well-established. The question, however, is whether, as a fact, the legal possession had or had not been parted with by the tenant in favor of someone else and whether on the date of the issuance of the notice of 9th October, 1974 the sub-tenant had vacated the premises or not. It will be seen that the case of the tenant in his written statement was that he alone had been in possession of the premises in question since the inception of the tenancy. It was not the case of the tenant, as was sought to bedeveloped during the course of his evidence, that a partnership did come into existence but the same was dissolved. The tenant admitted during the course of the examination that there was a partnership which had come into existence. Once this is admitted then the provisions of Sub-section (4) of Section 14 come into play and it is for him to show that the legal possession of the premises was always retained by the tenant and that the partnership had not been formed turn the purposes of sub-letting such premises. It is incumbent, under such circumstances, on the tenant to produce the partnership deed as well as the dissolution deed, if any. If the existence of partnership is admitted but the tenant does not produce the partnership deed then the Court would be justified in coming to the conclusion that the best evidence has been withheld and it must be presumed that if the same had been produced it would have gone against the tenant and would have shown that, in law, the tenant had parted with possession of the premises. This is the principle which has been invoked by the Tribunal in the present case while relying upon the decision reported as KasturChand v. Gujjar Mal, 1977 (2) R L R 470. By admitting that a partnership was in existence it would mean that the other partners also came into possession of the premises. If the tenant had been able to show that there was a clause in the partnership deed to the effect that the tenancy shall always remain with him then it may be, that the Court would have come to the conclusion that there has been no parting with possession by the tenant. The tenant, however, in the present case, has not produced the partnership deed. He has also not produced any dissolution deed. According to the landlady if these documents had been produced they would have shown that the other partners had been given legal possession of the premises in question. Under these circumstances the finding of fact which has been arrived at by the Tribunals namely, that the premises had been sub-let, cannot be said to be a perverse finding.

(9) There is another reason which leads me to the conclusion that the finding of the Tribunal that possession of the premises was parted with it a correct finding. During the course of his examination the tenant made the following statement: 'Now I have only one trade name i.e. Vishal Traders since September, 1975. This is registered at 3689 Qutab Road, Delhi. Prior to that I was doing brokerage business in Katra Peran since 1966. I was dealing in Chemicals.' This statement clearly shows that he himself has never carried on any business in the premises in dispute. Admittedly, the firm Devi Dutt Durga Parshad come into existence and, according to the tenant, he and Devi Dutt were the partners of the same. The tenant, however, did put a suggestion to the landlady's husband to the effect that respondent No. 5 was the tenant's partner. It must follow, thereforee, that the tenant admits that Devi Dutt and respondent No. 5 were partners of a firm which carried on business in. the premises in dispute. Reading the two statements together it would clearly follow that, though there was a partnership which had come into existence which carried on business in the premises in question, the tenant himself did not carry on any business there as since 1966, he was carrying on brokerage business and that with effect from September, 1975 he was carrying on trade under the name and style of Vishal Traders. According to the tenant, again, the premises in dispute, at the time when his statement was recorded, were stated to be lying vacant. He has, however, admitted that 'there is a litigation over possession of the premises in dispute between himself and the respondent No. 5'. This also suggests that the tenant never carried on any business himself in the premises in dispute and that is why respondent No. 5 was making a claim to the premises in question. In any event, the tenant having failed to show, categorically, that he had not parted with the possession of the premises in question, though a partnership had come into existence, and his not having produced any documentary evidence to show that he has regained the possession of the premises before the notice under Section 106 had been issued, the finding of the Tribunal does not call for any interference. In this connection I may also note the contention of Mr. Mittal, while relying upon Rameshwar Singh and another v. Bajit Lal Pathak and others Air 1929 P C 95, Gopal Krishanji Ketkar. Mohamed Haji Latif and others, : [1968]3SCR862 and Municipal Corp. v. Bhagwan Dass, 1974 R L R 588, to the effect that if best evidence, namely, documentary evidence, which Was admittedly in the possession of the tenant, is not produced, then it would lead to an adverse inference to the effect that the said document was not produced for, if it was produced, it would go against the tenant. It was also contended by Mr. Mittal, and to my mind rightly, that the tenant has been taking inconsistent pleas which would show the paucity of the defense. In the written statement the tenant had stated that respondent No. 5 had never been in possession of the premises and he had also denied that respondent No. 5 had started a candle manufacturing factory in the tenanted premises. On the other hand, the tenant had to admit that a partnership had come into existence and from the evidence it is clear that respondent No. 5 is also one of the partners and the said partnership had started a candle manufacturing factory.

(10) For the aforesaid reasons I find that there is no merit in this appeal. The appeal is accordingly dismissed with costs.


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