N.N. Goswamy, J.
1. This second appeal by the tenant is directed against the order dated 16-2-1983 passed by the Rent Control Tribunal, Delhi whereby he allowed the appeal filed by the respondent-landlord and directed eviction of the appellant under Sub-clause (b) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control, Act, 1958 (hereinafter called 'the Act').
2. The respondent-landlord filed a petition for eviction against the appellant with respect to the property in dispute. The grounds of eviction taken up, were under Clause (b) and (J) and (k) of the proviso to Sub-section (1) of Section 14 of the Act. Out of these guards the respondent had conceded before the Additional Rent Controller regarding the grounds of eviction under Clauses (j) and (k). The only ground pressed was under Clause (b) of proviso to Sub-section, (1) of Section 14 of the Act. It was pleaded in paragraph 18A of the petition:
'That the respondent has sublet assigned and has parted with possession of part of the premises to M/s Ajit (India) Private Ltd. Without obtaining consent in writing from the petitioner who as stated above, is owner/landlord of the premises. That the respondent has used the premises for the purpose other than for which hey were let out to respondent in as much as the premises are used by M/s Ajit India Pvt. Ltd., for commercial purpose. That the plot on which the premises G-21 Jangpura, Extension, New Delhi are situated is on lease, from land & Development office and the condition imposed n that lease is that the premises cannot be used for any other purpose than the residence. That the respondent has sublet the premises to M/s Ajit (India) Pvt. Ltd. Who are using the premises contrary to the condition imposed on the petitioner while granting the lease of the land to the petitioner on which the premises are situated.
The use of the premises for commercial purpose is against the conditions imposed by the Land and Development Office and the Municipal Corporation. In spite of the fact that a notice was given to the respondent has not stopped the misuse of the property.
3. The petition was later on amended and in Clause (1) above in addition to Ajit (India) Private Ltd. It was added that the premises were sublet to M/s Ajit (India) Ltd. and also to M/s Deluxe Tiles Manufacturing Co.
4. The petition was contested by the appellant-tenant. The relationship of landlord and tenant was admitted. However, the appellant denied that he had sublet, assigned or parted with possession to M/s Ajit (India_ Pvt. Ltd. without the consent in writing of the respondent. The defense offered was that in fact no subletting, assignment or parting with possession took place. It was denied that the property is used by M/s Ajit (India) Pvt. Ltd. It was pleaded that M/s Ajit (India) Pvt. Ltd had never functioned from the property in question. It was further pleaded that the appellant retained with him the legal and actual control of the property. According to the appellant he had two sisters who were residing with him and had got married. V.P. Sajnani one of the brothers of the appellant also lives with him and he has a firm by the name of M/s Deluxe Tiles Manufacturing Co. and had taken a plot of land for establishing a factory at Kundli in Haryana. The loan was to be raised from Haryana Financial Corporation and he gave the address of the suit premises namely G-21, Jangpura Extension for correspondence purpose only. It was, thereforee, denied that any portion of the property was sublet.
5. The matter was tried by the Additional Rent Controller Delhi. He held that the respondent had failed to prove the ingredients of Clause (b) of proviso to Sub-section (1) of Section 14 of the Act. It was further held that the brother of the appellant was residing with him and no suggestion was given to the appellant that he had parted with possession of the property. The learned Additional Rent Controller came to the conclusion that merely because a third person is shown to be in the property along with the tenant, it is no ground to infer that it is a case of parting with possession or subletting. The petition was consequently dismissed.
6. The respondent-landlord filed an appeal before the Rent Control Tribunal. On perusal of the evidence, the Tribunal came to the conclusion that a telephone connection had been provided in the property I dispute by M/s Ajit (India) Pvt. Ltd. and the letter of Mr. V.P. Sajnani to the Telephone Department indicated that some business of that company was being transacted in the property in dispute. From these facts it was inferred that the premises had been sublet to M/s Ajit (India) Ltd. The Tribunal, however, negatived the case of the respondent regarding subletting to Deluxe Tiles Manufacturing Co. on the ground that there was no evidence to indicate that the said company had at any point of time transacted any business from the premises in question, particularly, in view of the fact that the respondent had not stepped into the witness box after amending the petition. The tribunal was of the opinion that since a third person was shown to be in possession and there was no Explanationn as to why he was in possession thereforee it had to be inferred that it was a case of subletting. Consequently he allowed the appeal and directed the eviction of that appellant under Clause (b) of the proviso to Sub-section (1) to Section 14 of the Act.
7. The tenant has come up in second appeal to this Court. The contention of the learned counsel for the respondent was that the question whether the premises had been sublet or not is essentially a question of fact and is not open to einterferred with in the second appeal. There is no doubt regarding this proposition in as much as Section 39 of the Act itself states that a second appeal shall lie to the High Court on substantial question of law. However, the question for consideration is whether on the facts found by the Tribunal itself could it at all e inferred that that the appellant had sublet, assigned or otherwise parted with possession. This is essentially a question of law and not of fact. This Court has repeatedly held that Clause (b) of proviso to Section 14(1) uses three expressions, namely, sublet, assigned, and otherwise parted with possession. These three expressions deal with different concepts and apply to different circumstances. In subletting there exists the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found namely, the transfer of an interest in the estate, payment of rent, and the right to possession as against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression parted with possession undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom possession has been given by lease and parting with possession must have been by the tenant. The mere user by other persons is no parting with possession so long as the tenant retains the legal possession himself on in other words there must be vesting of possession of the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession. See in this connection 1972 R.C.R. 74 and Viswa Nath and Anr. v. Chaman Lal 0043/1975 : AIR1975Delhi117 .
8. Applying the aforesaid principles laid down by the Court I hall first deal with the allegation of subletting in favor of Ajit (India) Pvt. Ltd. It is an admitted fact that Mr. V.P. Sajnani is one of the brothers of the appellant and he continues to live with the appellant in the premises in dispute. There is no dispute that the appellant has all along continued to keep the premises and has never parted with possession of the entire premises. The case of the appellant is that his brother V.P. Sajnani was posted at Bombay and was working with M/s Ajit (India) Pvt. Ltd. at Bombay. He was sent to Delhi by his company to open a branch office at Delhi. He was in search of premises for the office. In order to facilitate matters the company had applied for a telephone connection for Mr. V.P. Sajnani at his residence. The documents proved by AW-1 a clerk from the Telephone Department indicate that on 17-6-1969 Mr. V.P. Sajnani had addressed a letter to the Assistant General Manager, Eastern Court, Delhi. This letter was addressed on behalf of M/s Ajit (India) Pvt. Ltd. and it was mentioned that an office had been opened at G-21, Jangpura Extension, New Delhi and a request was made for an OYT telephone connection. This letter is Ex. R. 1. In he subsequent letter/application dated 14-11-1969 which was also signed by V.P. Sajnani for and on behalf of M/s Ajit (India) Pvt. Ltd. the address for correspondence of M/s Ajit (India) Pvt. Ltd., as given was, 1101 Akash Deep, Barakhamba Road, New Delhi. It was further mentioned that the name in the directory should e that of Sajnani V.P. It obviously shows that the telephone was provided by M/s Ajit (India) Pvt. Ltd. to Sajnani, for his residence only, since the office of the company was located in Akash Deep, Barakhamba Road, New Delhi. It is not unknown that senior officers of the company get telephone connection from their employers for their residence. Merely getting a telephone for the residence can never indicate that the company in which the officer is working has any connection with the property where he is residing. It is again an admitted fact that Mr. V.P. Sajnani had left the company namely M/s Ajit (India) Pvt. Ltd. in 1970 and was allowed to retain the telephone. It is abundantly proved on record that after 1970 the telephone bills were being paid by the appellant by cheques. The respondent himself has admitted in his statement that he had never seen any customer of the company visiting the premises. However, though not pleaded, he had gone on to say that a brick wall had been put in a room to partition the room and premises were being used for M/s Ajit (India) Pvt. Ltd. Since the partition wall was not pleaded and it only came in the statement of the respondent the appellant filed an application for appointment of a local commissioner to inspect the premises and report whether there was any such brick wall in the premises. According to the appellant no such brick wall ever existed and the question of partition did not arise. This application filed by the appellant was opposed by the respondent and was consequently dismissed by the Additional Rent Controller. Even assuming that any work was done of the company I the premises it still cannot amount to subletting. In Smt. Krishna Vati v. Hans Raj, : 2SCR524 while interpreting the provision in question it was held:
Subletting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and if one of them who owns the house allows the other to carry on business sin a pat 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.'
9. It is well-settled that a tenant cannot be said to part with possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. In the present case, it was never disputed by the respondent that the appellant continued to occupy the premises and retained the legal possession over the premises. The appellant appeared as his own witness and it was no even suggested that his brother was not residing with him. It was also not suggested that he had parted with possession and was no more in legal possession of the part of the premises. The case of the respondent that three clerks were working in the premises was also not put to the appellant when he appeared as his own witness. Considering the circumstances of the case, it has to be held that Mr. V.P. Sajnani had only given the address the premises for the purpose of correspondence and nothing else. This by itself cannot amount to subletting.
10. The learned counsel for the respondent assailed the findings of the Tribunal on the question of subletting in favor of Deluxe Tiles Manufacturing Co. According to the learned counsel, he official from the Sales Tax Department who had appeared as a witness, had stated that the firm was registered as a dealer from the said address and as such it should be assumed that the appellant had parted with possession of the premises in favor of Deluxe Tiles Manufacturing Co. I have given my careful consideration to this contention of the learned counsel and I do not find any merit in the same. According to me, the tribunal was right in holding that it was for the respondent-landlord to prove the subletting in favor of the Deluxe Tiles Manufacturing Co. and he failed to do so in as much as he did not step into the witness box after amending the petition and made no statement to the effect that there was any subletting in favor that the address found place with the Sales Tax Department is of no consequence, particularly when we have on record the fact that M/s Deluxe Tiles Manufacturing Co. had a factory in Haryana. At best again it can be said that the address of the premises in question was only for correspondence purposes. There is on evidence on record to indicate that any business of the firm was transacted in the premises in dispute.
11. For the reasons recorded above, the appeal is allowed. The order dated 16th February, 1983 passed by the learned Rent Control Tribunal is set aside and as a consequence the eviction petition filed by the respondent stands dismissed. The appellant will be entitled t his costs. Counsel's fee Rs. 500/-.