G.C. Jain, J.
(1) These two appeals arise out of a common judgment of the Rent Control Tribunal dated February 16, 1982. This order would dispose both these appeal S A.O 206/82 (Behari Lal v. Pushpa Devi and another).
(2) On November 16. 1973 Behari Lal brought an application for recover of the possession of a shop measuring 18 ft. x 19 ft. bearing municipal No. 725/1, .Jheel Kurenja. Patparganj Road. Delhi The case set out by him was that the shop had been let out to Smt. Pushpa Devi on June 1 1971 on a monthly rent of Rs. 125.00 . She had sub let. assigned or otherwise parted with possession of the shop to Devi Dayal without his consent in writing.
(3) Pushpa Devi was proceeded exparte. The petition was resisted by Devi Dayal who contended that the land on which this shop had been built belonged to DDA. The construction had been made by him and he was in possession of the shop in his own right as an owner. The pleas regarding letting to Pushpa Devi or sub letting by her to him were false.
(4) The Addl. Controller as well as the Tribunal held that the relationship of landlord and tenant between Behari Lal and Pushpa Devi had not been proved and consequently dismissed the claim. Hence this second appeal by Behari Lal.
(5) I find no infirmity in this concurrent finding of fact. Both the parties produced oral evidence in support of their respective pleas Both the courts found no Justification for preferring the evidence of Behari Lal. He admittedly maintained counter foil receipts. The same were, however, not produced. As a matter of fact learned counsel for the appellant, Behari Lal could not point out any error in this finding.
(6) During the pendency of this appeal Pushpa Devi moved an application (CM 2899/82) for permission to produce receipts purported to have been issued by Behari Lal in her favor and also a partnership deed. It was averred that the shop bad been. taken on lease for running partnership business. She was an illiterate lady and could not prosecute her case before the Addl. Controller or Tribunal.
(7) None appeared for Pushpa Devi at the time of arguments. I have examined the application. I have no doubt that it was malafide and an attempt to improve the case of Behari Lal. She had earlier prosecuted Devi Dayal for trespass. Appellant Behari Lal was her witness. In these circumstances it cannot be believed that she could not prosecute her case before the Addl. Controller or Tribunal due to illiteracy. She cannot be allowed to blow the trumpet of Behari Lal.
(8) This appeal has no merit and is liable to be dismissed. S A.O. 97/82 (Devi Dayal v. Behari Lal)
(9) The application for eviction out of which this appeal has arisen was filed by Behari Lal on December 7, 1973. He claimed recovery of possession of the premises in dispute, namely a shop measuring 10 ft X 19 ft. bearing municipal No. 725/1, Jheel Kurenja Patparganj Road, Delhi. It is adjoining the shop subject matter of dispute in appeal No. 206/82. Eviction was claimed on the ground that he bad let out the said shop to Devi Dayal in November, 1970 on a monthly rent of Rs. 90.00 and he had not paid or tenderer the rent which was due from March 8, 1971.
(10) The defense set up by Devi Dayal was the same, namely, that there was no relationship of landlord and tenant between the parties. The shop in question had been constructed by him on a plot belonging to Dda and he was in occupation of this shop in his own right as an owner.
(11) The Addl. Controller holding that there was no relationship of landlord and tenant between the parties dismissed the application on March 31, 1970.
(12) In appeal before the Rent Control Tribunal, Behari Lal made an application for producing additional evidence This application was allowed on August 28. 1980. Additional evidence was then recorded by the Tribunal. On examining the entire evidence, learned Tribunal came to conclusion that there was relationship of landlord and tenant between the parties and Behari Lal was entitled to a a order for eviction under clause (a). He consequently allowed the appeal and made an order of eviction of Devi Dayal from the shop in dispute Feeling aggrieved the appellant has filed this appeal.
(13) Section 39 of the Act provides for a second appeal. Sub Section (2) of Section 39 says that no appeal shall lie under sub-section. (1) unless the appeal involves some substantial question of law Relying on these provisions Mr. Oberoi, learned counsel for Behari Lal, at the outset contended that the question whether the relationship of landlord and tenant existed between the parties was pure question of fact and the second appeal raised no substantial question of law.
(14) Reliance was placed on a decision of the supreme Court in Mattulal v. Radhe Lal, 1975 Rcj 86 This case was under Section 100 of the Code of Civil Procedure which also provides second appeal if it involves a substantial question of law. The Supreme Court held:
'IT is settled law that the High Court in second appeal cannot reappreciate the evidence and interfere with findings of fact reached by the lower appellate court. The lower appellate court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its Jurisdiction in second appeal. If the finding recorded by the lower appellate court Is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of facts, the jurisdiction of the High Court would be barred and it would not be taken by the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse.'
(15) Mr. Garg, learned counsel for Devi Dayal, did not dispute this legal position. He, however, contended that the finding of the Tribunal was not a concurrent finding. He bad illegally allowed additional evidence which was recorded by him. He had raised wrong inferences. Material evidence of the appellant had been ignored. The finding according to him was based on no evidence. It was perverse and liable to be quashed in second appeal.
(16) I do not propose to examine the legality of the order of the Tribunal allowing additional evidence as I am satisfied that his finding based on the entire evidence was unreasonable and perverse.
(17) The learned Tribunal in para 20 of his judgment observed that the oral evidence produced by the parties was self serving and interested. He still preferred the version of Behari Lal regarding the existence of relationship of landlord and tenant between the parties for four reasons, namely (1) the property was assessed for the purpose of house tax in the name of Behari Lal ; (2) the electricity connection for commercial purpose was in the name of Behari Lal ; (3) the version of Behari Lal that earlier he was running a cotton cording machine in the shop stood corroborated from the license produced by him ; and (4) Behari Lal had produced bills to prove that he had purchased bricks etc. which showed that he had constructed the shop in dispute. Devi Dayal, on the other hand, would not produce any such bill.
(18) I have carefully examined all these reasons. Learned Tribunal, in my view, was entirely wrong in the conclusion arrived.
(19) Aw 3 clerk. Corporation, examined before the Controller deposed that the property tax of property No. 725/1, Jheel Kurenja, was assessed in the name of Behari Lal. He had brought the records from 1970. Before the Tribunal Behari Lal deposed that the property was assessed in his name for house tax since 1960. He produced one bill also. This evidence does not prove the relationship of landlord and tenant. It was admitted by Behari Lal that there are nine shops in property No. 725/1. The evidence does not show that the assessment was in respect of all the shops or in any case in respect of the shop in dispute. The only bill produced by the appellant before the Tribunal was for the year 1974-75, i.e. for the period after the institution of eviction petition. This evidence had no corroborative value.
(20) The clerk, Delhi Electricity Supply Undertaking./AAW-5 deposed before the Tribunal that the connection No. EZ3144 was installed in premises No, 725/1 on November 23, 1962. Another connection Ez 10188 was installed on September, 30, 1965. Learned Tribunal observed that installation of these connections supports the contention that Behari Lal was the landlord. He, however, did not take into consideration the averment made by Behari Lal in para 10 of the eviction petition where he had stated that no amenities had been provided and there was only a temporary electricity connection. The electricity connections in question were, thereforee, obviously installed in some other shop in property No. 725/1.
(21) Learned Tribunal also sought corroboration to the oral evidence of Behari Lal from licenses Aax and Aaw 8/2. license Aaw 8/2 was issued on 15-11-66 in favor of Behari Lal for running cotton business in property No. 725/1. license Aax was issued in his favor on 12-5-69 for running cotton cording machine in property No. 725/1. Nothing turns on these licenses. There is nothing to connect these licenses with the shop in dispute. license Aax was renewed up to March 1973. How could it relate to shop in dispute which was allegedly let out in November, 1970. The Tribunal totally overlooked this renewal.
(22) Two cash memos produced by Behari Lal do show that he purchased some building material. But it cannot be said that these related to the material used in the construction of the shop in dispute.
(23) The circumstances from which the corroboration was sought by the Tribunal individually or collectively provide no corroboration to the oral evidence which was found by the Tribunal as self serving.
(24) Devi Dayal examined Sube Singh, Chief Inspector, RAW/3 Shops and Establishments. He deposed that the shop in dispute had been registered in the name of Devi Dayal as proprietor on October 5, 1967. This evidence was totally ignored by the Tribunal.
(25) For all these reasons the order of the Tribunal cannot be sustained and is liable to be set aside.
(26) In conclusion the appeal Sao 305/82 (Behari Lal v. Pushpa Devi and another) is dismissed. The appeal Sao 206/82 (Devi Dayal v. Behari Lal) is allowed. The order of Tribunal is set aside and that of Addl. Controller restored. Parties are left to bear their own costs.