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Judgment
Indermeet Kaur, J.—This is a second appeal. It has impugned the judgment of Rent Control Tribunal (RCT) dated 21.4.1984. The RCT had reversed the finding of the Additional Rent Controller (ARC) dated 14.11.1983 wherein the petition filed by the landlord Bhairon Sahai u/s 14(1)(b) of the Delhi Rent Control Act 1958 (hereinafter referred to as ''the DRCA'') had been decreed. The impugned judgment had reversed this finding; eviction petition of the landlord stood dismissed.
The Petitioner/landlord Bhairon Sahai had filed an eviction petition against two Respondent brothers namely Bishamber Dayal and Ram Avtar under Sections 14(1)(b) and 14(1)(j) of the DRCA. The demised premises comprise of a shop i.e. property bearing No. 7/6403, Dev Nagar, Karol Bagh, New Delhi. Contention of the landlord was that Respondent No. 1 had sublet, assigned or parted with the possession of the shop in favour of Respondent No. 2 without the consent of the landlord; the property had been partitioned in two portions by making big holes therein; substantial damages to the property had also been effected.
The Respondent had disputed this position. It was denied that there was any subletting or ground u/s 14(1)(j) of the DRCA had been made out. Contention was that both the Respondent brothers comprised of a joint hindu family ;the shop had been taken in the name of Ram Avtar Bishamber Dayal; thereafter the business continued under the name and style of M/s Ram Chander Ram Avtar which was being run jointly since 13.9.1959. On 01.8.1963 a partition took place between the brothers and the demised shop had fallen to the share of Respondent No. 1 namely Bishamber Dayal. Respondent No. 2 i.e. Ram Avtar had taken a food grain licence (FGL) No. 901 in March 1964 which was being used by Respondent No. 1 as sole proprietor of this Fair Price Shop (FPS). Respondent No. 1 has been running this business as a sole proprietor although admittedly the FGL was in the name of Respondent No. 2. After the change in government policy the Authorized Retail Distributorship (ARD) was obtained by Respondent No. 2 in 1965 in his name because the government had refused to issue the said ARD in favour of Respondent No. 1. However, it was Respondent No. 1 who is carrying on the business of the ARD as its sole proprietor. Respondent No. 2 had no interest in the said proprietorship till 1.1.1977. On 1.1.1977 Respondent inducted Respondent No. 2 as his partner in the ration shop in one half portion of the disputed premises. The possession of the shop has always been with Respondent No. 1. There has been no parting of possession of the same either in whole or in part; no damage has also accrued to the said premises.
This is an appeal u/s 39 of the DRCA which provision now stand repealed by the Amendment Act 1988. However, the present appeal having been filed prior in time, admittedly the parties are governed by this provision of law.
Section 39 of the DRCA reads as follows:
No appeal shall lie under Sub-section (1) of Section 39 unless the appeal involves some substantial question of law.
On 11.3.2011 the substantial question of law had been formulated by this Court:
Whether the finding in the impugned judgment of the Land Control Tribunal dated 21.04.1984 are perverse? If so, its effect?
Certain facts are admitted. Relationship of landlord and tenant qua Respondent No. 1 was not in dispute. The Additional Rent Controller (ARC) had repelled the contention of the Respondents that the premises was taken on rent by the HUF; no documentary evidence had been produced to the said effect; Respondent No. 1 was the established tenant in his individual capacity. The FGL No. 901 was admittedly in the name of Respondent No. 2. This was obtained in the year 1964. Business was being run under the name and style of M/s Ram Chander Ram Avtar. In 1965 the government had appointed Authorized Retail Distributors (AR Ds). Persons having FPS were appointed as AR Ds. Respondent No. 1 on 2.12.1965 vide Ex.RW-1/1 on an non-judicial stamp paper of Rs. 2/- made efforts to obtain this ARD in his own name. This was incomplete document. It is an one page document and had been proved on record by Respondent No. 1 to substantiate this effort on his part. It was for no other purpose. ARC had, however, rejected this document. Impugned judgment had reserved this finding. It had placed reliance upon Ex.RW-1/1 for this limited purpose only and rightly so. This stamp paper was purchased by Respondent No. 1 in his own name; this is evident from the back page of Ex.RW-1/1; this prima facie evidenced the intention of Respondent No. 1 to get the ARD effected in his name. However, the government rules did not permit this. The ARD admittedly could be given only to a person who was holding fair price shop licence. Thereafter Respondent No. 2 had applied for this ARD which was accordingly granted to him. AW-3 J.C. Kaushik, Public Relation Officer had brought the summoned record to substantiate that as per the ledger Ex.AW-3/1 the security amount had been deposited in the name of Ram Avtar. AW-4 Manohar Lal, the Clerk and Record Keeper, Commissioner of Food and Supplies deposed that Respondent No. 2 had applied for the ARD and agreement to the said effect had been executed between the government and Respondent No. 2 which was on 25.1.1977 yet the stamp paper had been purchased by Respondent No. 1 in the name of Respondent No. 2.
This testimony is completely in consonance with the stand of Respondent No. 1 who has deposed and also proved on record Ex.RW-1/1 which was the stamp paper purchased by him to advance his efforts to obtain the ARD in his name but the government policy prohibited it; as per the government policy ARD could be issued only in the name of the person holding the licence of the fair price shop.
AW-2 Maharaj Kumar, an advocate, admittedly had been appointed as a local commissioner in an earlier eviction petition filed between the same parties; this was in suit No. 441/1976. AW-2 had on oath proved the said report Ex.AW-2/1. This document has been scrutinized in the impugned judgment. It had noted that even when AW-2 had visited the demised shop there was a black board hanging there wherein in clear terms the name of the proprietor was mentioned as Bishamber Dayal. These photographs had been proved and are on record as AW-5/6 and Ex.PW-5/12. Both these photographs clearly depict the board outside the shop wherein the name of Bishamber Dayal Aggarwal had been mentioned as its proprietor. Narender Kumar, the nephew of Respondent No. 1 was found sitting in the shop and at that time Respondent No. 1 and Respondent No. 2 were sitting in the adjoining grocery shop which was being run by Respondent No. 2. RW-1 Bishmaber Dayal had on oath testified and explained that his nephew Narender used to help him in his shop for one hour daily in issuing bills/slips. He had categorically stated that he had no other shop except the shop in dispute; he has never worked anywhere else. It was noted that there was no direct cross-examination of this witness on this score. RW-8 Krishan Avtar Gautam was known to both the parties since last 20-25 years. He had also deposed that Respondent No. 1 was carrying on business and selling his food items from his shop; his brother Respondent No. 1 Ram Avtar has a shop adjoining the shop of Respondent No. 1 from where he was selling his goods. The ARC in fact had not discussed the testimony of the witnesses of the Respondent; it had not been adverted to.
These are findings of fact and in no manner can be said to be perverse. Clear and cogent evidence oral, and documentary had established that Respondent No. 1 Bishamber Dayal was running this shop and was in possession of the same.
In AIR 1969 CTJ 423 Pearey Lal Syal v. Dr. Dhian Singh the Court had examined what could be a substantial question of law under the provision of 39 of the DRCA. It was held that even assuming that a second appellate Court would have come to a conclusion different from that endorsed by the tribunal, it would not necessarily assume the scope of a substantial question of law. The findings of fact when concluded can be interfered with only if the same are perverse. No such perversity has been pointed out.
The question that had arisen is whether Respondent No. 1 had in any manner sublet, assign or otherwise parted with the possession of whole or any part of the suit premises without the consent of the landlord.
At this stage it would be relevant to extract the provisions of Section 14(1)((b) of the DRCA; they read as follows:
Protection of tenant against eviction. - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any of the premises without obtaining the consent in writing of the landlord;
Expression "parted with possession" undoubtedly postulates the parting with legal possession. It means giving possession to persons other than those to whom, possession has been given by the lease and "the parting with possession" must have been by the tenant.
The question of subletting is a conclusion on a question of law derived from the finding on the material on record i.e. as to whether there has been a transfer of exclusive possession. Such finding can be re-examined by the High court under the provision of Section 15(5) of the DRCA. It is a settled position of law that to establish subletting onus is on the landlord to prove it through evidence that the sub-tenant is in exclusive possession of the property in question; that between the sub-tenant and tenant there is a relationship of lessee and lessor and that possession of the premises has been parted with exclusively by the tenant in favour of the sub-tenant.
The impugned judgment had re-appreciated the oral and documentary evidence to draw a conclusion that there has been no subletting by Respondent No. 1 in favour of Respondent No. 2 thereby dismissing the eviction petition. Bishmaber Dayal was carrying on the business as a sole proprietor of the fair price shop. The licence of the fair price shop was admittedly in the name of his brother; as a necessary corollary the ARD also had to be necessarily obtained in the name of his brother. Government policy did not permit him otherwise; after 01.7.1977 Respondent No. 1 had inducted his brother as a partner in his firm in one and half portion of the shop. The possession of the shop, however, remained with Respondent No. 1. There had been no parting of possession either in whole or in part. The mischief of Section 14(1)(b) was not attracted. The landlord/Petitioner had failed to fulfill the ingredients of Section 14(1)(b) of the said Act. Subletting, assigning or otherwise parting with possession of the whole or part of the premises without his consent was not proved.
In (1999) SCC 263 Resham Singh v. Raghubir Singh and Ors., Supreme Court while analyzing the disputed contention where both the Respondents were brothers and tenancy had been executed in favour of one brother, the said brother being involved in a criminal proceeding had absconded for a considerable period; physical presence of the said person in the premises being absent for a considerable time; as a natural corollary his brother looked after the shop in his absence; it did amount to a subletting. Court had held that no evidence of a relationship of a lessee and lessor between the two brothers had been proved by the landlord.
In : (1998) 3 SCC 57 Jagan Nath v. Chander Bhan the following observations of the Apex Court are relevant:
The parting with possession must be by the tenant. Parting with possession means given possession to persons other than those to whom possession had been given by the lease. User by other person is not parting possession so long as the tenant retains the legal possession himself. There must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession.
In Jagdish Prasad Vs. Smt. Angoori Devi, a Bench of the Allahabad High court while dealing with the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act had held that mere presence of a person other than the tenant in the shop could not lead to a presumption of subletting. This answers the vehement contention of the learned Counsel for the Appellant that Narender, newphew of Bishamber Dayal was found sitting at the time of the visit of the local commissioner establishing that the premises had been sublet. RW-1 Bishamber Dayal had (as noted supra) explained in his deposition that his newphew Narender used to help him for one hour daily in the shop for preparing bills/slips. The control of the premises was continuously with Bishamber Dayal and the business was being run by him.
These factual findings returned in the impugned judgment calls for no interference. The landlord/Petitioner has failed to show that Ram Avtar was in exclusive possession of said shop; there was no relationship of lessee and lessor between the two brothers i.e. Bishamber Dayal and Ram Avtar. Merely because the food grain licence was in the name of Respondent No. 2, it cannot be said that the business was of Respondent No. 2. The visit of the local commissioner (AW-4) in the earlier eviction petition clearly evidenced that the board on the shop site had depicted the name of Bishmaber Dayal Aggarwal as the proprietor of the business being run from the shop. RW-8 who was known to both the parties had reaffirmed this on oath. Document Ex. RW-1/1 was rightly relied upon by trial judge to advance the submission of Respondent No. 1 that he made efforts to obtain the ARD in his name but the government policy did not permit it; as per government policy the ARD could only be given to the person holding the licence of the fair price shop. It was in these circumstances only that the ARD was issued in the name of Respondent No. 2. On 1.1.1977 a partnership had been formed between Respondent No. 1 and the Respondent No. 2 whereby Respondent No. 2 was permitted half user of the said shop. It was not a case of exclusive possession of Respondent No. 2. Respondent No. 1 always continued to retain the possession of the suit premises. Subletting was rightly held not to be proved.
Impugned judgment calls for no interference on any score. Appeal is without merit. It is dismissed.