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Gulzar Singh and anr. Vs. Chand Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 295 of 1981
Judge
Reported in29(1986)DLT50; 1986(10)DRJ234; 1985RLR611
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantGulzar Singh and anr.
RespondentChand Gupta
Advocates: M.L. Bhargav and; O.N. Vohra, Advs
Cases Referred and Ambika Devi v. Balmakund Pandey
Excerpt:
.....respondent thus, had failed to prove that the tenant had sub let, as signed or otherwise parted with the possession of the shop in dispute to his brother avtar singh......in may, 1968 and he had sub let, assigned or otherwise parted with the possession of the shop to avtar singh (appellant no. 2) without his consent in writing it was also averred that the tenant had not paid the arrears of rent due from december 1, 1972 in spite of notice of demand. (3) the petition was resisted by the appellants. main pleas raised were that the shop had been let out to both of them. they were real brothers and living and carrying on business jointly and there was no question of any sub-letting, assigning or parting with possession. they had been tendering the rent from time to time. a sum of rs. 1760/ was even sent by money order but the landlord refused to accept it. (4) learned addl. controller held that the shop in dispute had been let out only to gulzar singh. he.....
Judgment:

G.C. Jain, J.

(1) This is a second appeal from the order of the Tribunal dated July 18,1981 dismissing the appeal of the appellants against the order of the Addl. Controller dated December 1, 1978 directing their eviction from the shop in dispute.

(2) On January 12,1976 Siri Chand Gupta, respondent/landlord brought a petition for recovery of possession of the shop No. Wz 258/4. Subhash Bazar, Nangal Raya, New Jail Road. New Delhi on the averments that the said shop had been let out by him to Gulzar Singh (appellant No. 1) on a monthly rent of Rs. 80.00 in May, 1968 and he had sub let, assigned or otherwise parted with the possession of the shop to Avtar Singh (appellant No. 2) without his consent in writing It was also averred that the tenant had not paid the arrears of rent due from December 1, 1972 in spite of notice of demand.

(3) The petition was resisted by the appellants. Main pleas raised were that the shop had been let out to both of them. They were real brothers and living and carrying on business jointly and there was no question of any sub-letting, assigning or parting with possession. They had been tendering the rent from time to time. A sum of Rs. 1760/ was even sent by money order but the landlord refused to accept it.

(4) Learned Addl. Controller held that the shop in dispute had been let out only to Gulzar Singh. He had neither paid nor tendered the arrears of rent within two months of the notice of demand, the tender of rent by 236 both of them by money order being an invalid tender. The tenant, however, had complied with the order under Section 15(1) of the Delhi Rent .Control Act, 1958 (for short 'the Act') and was thereforee entitled to the benefit under Section 14(2) of 'the Act,. He further found that the tenant had parted with the possession of the shop in favor of Avtar Singh without the consent of the landlord in writing. Consequently an order turn recovery of possession under Section 14(1)(b) of 'the Act' was made in favor of the landlord. Affirming these findings the appeal filed by the appellants, was dismissed by the Tribunal. Hence this second appeal.

(5) The question, whether the shop in dispute had been let out by the respondent in favor of Gulzar Singh alone or in favor of both the appellants, was necessarily a question of fact. The concurrent finding of the. Courts below on this question could not be assailed in the second appeal. I find no infirmity justifying interference in second appeal. The finding is based on documentary evidence, namely, the rent receipts which were in favor of Guizar Singh only. Besides, Guizar Singh, on June 20, 1968 i.e. soon after taking the shop on lease, made an application for getting the shop registered under the Delhi Shops and Establishment Act. 1954. In the said application he had shown himself as the occupier or the employer of M/s. Standard Cloth House, shop No. 258/4, Nangal Raya, Jail Road, New Delhi'. Under the column 'Names of members of employer's family working in the shop' he mentioned the name of 'Avtar Singh his real brother'. These entries show that Avtar Singh was working as a family member and not as the owner of the business. This circumstance corroborates the version of the landlord.

(6) The only infirmity pointed out by the learned counsel for the appellant was that in the rent receipts the name of the father of Guizar Singh has been shown as Avtar Singh though admittedly Guizar Singh was the son of Dewan Singh. This misdescription in the name of the father of Gulzar Singh, in my view, would not make Avtar Singh a joint tenant. Had the shop been let out to both Gulzar Singh and Avtar Singh there was no occasion for describing the name of the tenant as 'Gulzar Singh s/o Avtar Singh' in .the rent receipts The view taken by the two courts below on this point is correct and calls for no interference.

(7) It was then contended that the finding of the Tribunal that the rent sent by money order was not a valid tender was erroneous. I find no substance in the contention. The rent was admittedly sent by the appellants Avtar Singh and Gulzar Singh. The tenant was only Gulzar Singh and thereforee the landlord was fully justified in refusing to accept it.

(8) In support of the finding that the tenant Gulzar Singh had parted with possession of the shop in dispute in favor of his brother Avtar Singh, both the Addl. Controller and the Tribunal have mainly relied on an affidavit. (Ex. Aw 6/2) of Avtar Singh (Appellant No 2). The original of this affidavit was produced by him in the Income tax proceedings. The original was brought in court by the Inspector, Income tax. New Delhi. Its execution was proved by the respondent in his statement. Mr. Bhargava, learned counsel appearing for the appellants, contended that the courts below committed a grave error in admitting this affidavit in evidence for two 237 reasons, namely, (1) its execution had not been duly proved and (2) the admission contained in the affidavit was not admissible against Gulzar Singh, the tenant.

(9) The respondent in his statement has deposed that Avtar Singh signed and then got it attested from the Oath Commissioner in his presence. This statement was believed by the two courts below and, in my view, rightly. Avtar Singh in rebuttal, did not dare to deny his signatures on this affidavit. He was absolutely silent about its execution and attestation. His statement in cross-examination that he did not file any such affidavit in the Income Tax proceedings, could not be believed because the affidavit existed on the Income Tax file.

(10) In the affidavit Avtar Singh has stated that he was the sole proprietor of the firm M/s. Standard Cloth House, Wz 258/4. Nangal Raya, New Jail Road, New Delhi since its start in 1969 ; there had never been any partner at any time in any form since the start of the business; and his brother Guizar Singh in the first three or four months simply assisted him in the business on a salary of Rs. 100.00 per month and left afterwards and started his own business. This affidavit, no doubt, shows that Avtar Singh was in exclusive possession of the shop in dispute since 1969 in his own right. The courts below, however, were not justified in relying on this admission,

(11) The statements contained in the affidavit are contrary to the averments made By Gulzar Singh in his application for getting his business, carried on in this shop, registered under the Delhi Shops and Establishment Act on which the reliance had been placed by the landlord himself. Again according to the plea in the eviction petition, this parting with possession, took place in December 1972 and not in 1969 as the affidavit suggests. In any case this admission by Avtar Singh, one of the co-respondents in the eviction petition, was not legally admissible in evidence against the tenant Gulzar Singh, the other respondent

(12) The primary rule, as contained in Section 21 of the Indian Evidence Act is that an admission is relevant and may be proved as against the persons who make it or his representative in interest. Generally speaking, thereforee, any relevant statement made by a party to the proceedings on a former occasion is admissible in evidence against him only or his successor in interest. Thus an admission by one of the respondents is no evidence against the co-respondent (See Rashid-ud-din v. Nazir-ud-din AIR 1929 Lahore 721 and Kanwar Lal Gupta v. Amar Nath Chawla ILR. (1972) Del 717

(13) However, it cannot be said that an admission can never be used against persons other than the maker. Statements which are admissions within Section 18, 19 and 20 of the Indian Evidence Act are relevant and they would thereforee, be admissible against persons other than the makers of them provided those other persons fall within the ambit of the provisions contained in these sections')

(14) In the present base reliance was placed by Mr. Vohra, learned counsel for the respondent on Section 18of the Indian Evidence Act which reads as under :- 238 '18. Statements made by a parly to the proceedings, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made white the parly making them held that character: Statements made by: (1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceedings, and who make the statement in their character of persons so interested ; or (2) persons from when the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.'

(15) Under this Section a relevant statement made (i) by the party to the proceedings or (ii) by his agent expressly or impliedly authorised by him to make such statement or (iii) by persons who have any proprietary or pecuniary interest in the subject-matter of the proceedings and who make the statement in their character of persons so interested, or (4) by predecessor-in-interest of the party to the proceedings, would be admissible in evidence.

(16) The statement contained in the affidavit filed in Income Tax proceedings was made by Avtar Singh who was not an agent of Gulzar Singh. There is.nothing on the record to prove or even suggest that Gulzar Singh had authorised him expressly or impliedly to make such a statement. He was admittedly not the predecessor-in-interest of Gulzar Singh.

(17) Had he any proprietary .or pecuniary interest in the subject matter of the proceedings, as urged by Mr. Vohra, the learned counsel for the landlord Tenancy rights were .the subject matter of the proceedings. Avtar Singh was not a joint tenant according to landlord's contention which was accepted as correct. thereforee it cannot be said that he had any proprietary or pecuniary interest in the subject matter of the proceedings, i e. tenancy rights.

(18) The rule under Section 18(1) of the Indian Evidence Act is based on the principle that persons having joint proprietary or pecuniary interest in the subject matter of the proceedings have interest in the whole and being interested in the whole the admission of each is deemed the admission of the other.

(19) To make a statement admissible under this head, thereforee, there must be mutual relationship to the same rights of the property. Avtar Singh was merely an alleged exclusive occupier of the shop in dispute. He had no rights in the shop. An admission made by a mere occupier, in my view, was not admissible against the tenant of the shop. An alleged transferee of possession has no privity with the tenant. There must be a joint and not only a common interest. The courts below, thereforee, com- 239 mitted an error in relying on the admissions of Avtar Singh contained in his affidavit against the tenant Gulzar Singh. I find support to this view from a decision of this court in Amarjit Kaur etc. v. Kishan Chand, 1980 Rlr 43

(20) Mr. Vohra, learned counsel for the respondent has relied on Yaggana Obonna v. Kutagulla Gangaiah Air 1945 Mad 361 Mt. Ramjhari Kuer v. DeyanandSingh Air 1946 Patna 276 and Ambika Devi v. Balmakund Pandey, : AIR1981Pat111 . These authorities do not help him at all. In those proceedings statements were made by persons who were jointly interested in the subject matter of the proceedings. This is, however, not the case here as discussed above.

(21) Once the admission was ignored then there Was no sufficient evidence to prove that the tenant Gulzar Singh had transferred legal possession of the premises in dispute in favor of his brother Avtar Singh. AW-3 Ban key Lal simply stated that some other person was working in the shop in dispute for the last three or four years. He even, did not know as to what business was going on in the shop. Moreover the respondent was known to him since his birth. AW-4 0m Prakash was known to the landlord for the last 40 or 50 years as a neighbour. His statement that Gulzar Singh gave his father's name as Avtar Singh is unbelievable. Much reliance could not be placed on the evidence of such a witness. The remaining evidence consisted of the landlord and his father Moti Ram, both interested witnesses. In rebuttal the appellants produced several witnesses who had deposed that both the brothers were jointly carry ing on business in the shop. The oral evidence produced by the landlord was in no way better than the evidence produced by the tenant. The respondent thus, had failed to prove that the tenant had sub let, as signed or otherwise parted with the possession of the shop in dispute to his brother Avtar Singh. The finding to the contrary, being based on inadmissible evidence, could not be sustained.

(22) In conclusion I allow the appeal, set aside the impugned judgments and instead dismiss the application filed by the respondent-landlord. Partics, however arc left to bear their own costs throughout.


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