G.C. Jain, J.
(1) Smt. Daropadi Devi was the owner of the property No. 105-E, Kamla Nagar, Delhi. The land on which it was constructed was purchased by her by a sale deed dated January 8, 1948, Ex. A-1/1. On her death this property devolved on the appellants Ram Kumar her husband, and Sarwan Kumar, Vijay Kumar and Ashok Kumar, her sons, A portion on the first floor of the said property consisting of three rooms etc. shown as red in the plan Ex.A-2. was let out to Rajinder Thakur, respondent No. 1, in September, 1958. The monthly rent is Rs. 61.00 per month.
(2) On September 2, 1972 the appellants brought an application for recovery of possession of the said premises under clauses (b) and (e) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (for short 'the Act'). An order for eviction was made by the Additional Controller on January 23, 1976 on both the grounds, in appeal the Tribunal by order dated September 13, 1977, however, reversed the findings and dismissed the eviction petition. Feeling aggrieved the appellants/landlords have brought this second appeal.
(3) The three expressions 'sublet', 'assigned' or 'otherwise parted with possession' used in clause (b) of the proviso, no doubt, deal with different concepts but in all the three cases there must be a transfer of the legal possession of the whole or part of the demised premises to person or persons other than the tenant. A tenant, who retains the legal possession of the whole of the premises with him, cannot be said to have sub let, as signed or otherwise parted with possession of the whole or part of the premises.
(4) Both the courts below have found that Sham Chaudhary, respondent No. 3, had been residing in the premises. From his physical presence the learned Additional Controller inferred sub letting, assignment or parting with possession. He was in error. No such inference could be raised when there is no evidence that he paid any rent or was in exclusive possession of any portion of the premises. 1 here is no other circumstance, except that he was not related to the tenant, suggesting transfer of legal possession. Absence of relationship was of no consequence. The tenant can always allow his friend to reside with him as his guest. It is in evidence that Sham Chaudhary belonged to the village of the tenant. In the tact's and circumstances of the case the learned Tribunal was fully justified to hold that there was no subletting, assignment or parting with possession in favor of Sham Chaudhary.
(5) Evidence has been led that Bindeshwar Thakur, respondent No. 2 was in exclusive possession of the middle room marked B in the plan. He was separate in mess and residence and had a separate ration card. The test of exclusive possession, though very important, is not conclusive. In the present case it has been found (i) that respondent No. 2 was brother-in- law of the tenant; (2) be had been residing in the premises since the inception of the tenancy, and even prior to shifting to this house he lived in another house along with the tenant; (3) the middle room had no separate excess. One could go there only from the other two rooms which were admittedly in possession of the tenant. In the totality of these surrounding circumstances learned Tribunal was right in coming to the conclusion that there was no transfer of legal possession and the status of respondent No. 2 was that of a licensee. The contention of the learned counsel for the appellants to the contrary cannot be accepted.
(6) The eviction petition docs not contain any facts showing requirement or need of the appellants in the premises in dispute. The extent of accommodation or the number of the family members for whom the premises were required had not been given. The case set up in the evidence, however, was that appellant No. 3 and 4 Vijay Kumar and Ashok Kumar resided with their father appellant No. I Ram Kumar at Moradabad. They wanted to shift to Delhi because the accommodation with them at Moradabad was insufficient and the relations with their step mother were strained. The learned Tribunal found that both of them were still carrying on business at Moradabad. He says : 'even uptil now it is not disputed that respondent No. 3 and 4 are running their business in Moradabad'. He also found that a room was vacated by a tenant Sharwan Kumar, one or two months before the service of the notice on the tenant terminating his tenancy. That portion was not occupied by any of the appellants but was let out to another tenant on a higher rent. I agree with the learned Tribunal that these circumstances showed that the need of the appellants was not genuine and the claim was made for some extraneous reasons.
(7) Mr. Bharat Inder Singh, learned counsel for the appellants contended that after the filing of the appeal Vijay Kumar had already shifted to Delhi and was in occupation of one room, one store, one kitchen besides common bath and latrine and he had been a registered as a voter. An affidavit was filed by Vijay Kumar in support of this contention. The tenant, however, denied the allegation and contended that Vijay Kumar was still settled in Moradabad I find no justification for preferring the affidavit of Vijay Kumar. The registration of his name in the voters list is not conclusive evidence to prove his shifting to Delhi. His affidavit does not contain any statement that he had started any business in Delhi or had closed his brick kiln business in Maradabad. Absence of averments regarding these important facts makes the plea of his shifting to Delhi most doubtful.
(8) It was also contended that Sarwan Kumar, who admittedly resided at Delhi, required more accommodation because his children have grown up. The eviction was not claimed for the requirement of Sarwan Kumar. The appellants, in my view, cannot be allowed to make a new case in second appeal.
(9) For all these reasons I find no merit in the appeal and dismiss the same with costs. Counsel fee Rs. 500.00 .