RC.S.A./27/2002 of HARBANS LAL MEHRA DECD. THR. LRS Vs RAMESHWAR NATH & ANR. DECE. THR.LRS. on 30 November 2004

JUDGMENT

R.S.SODmJ:(ORAL)

1. RC-SA 27/2002 is directed a^inst Judgment and orderdated 2.8.2002 of the Additional Rent Control Tribunal, Delhi, (forshort 'Tribunal,)in RCA NO. 980/1996 whereby the learned V

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Signature Not Verified

Digitally Signed By:AMULYACertify that the digital file andphysical file have been compared andthe digital data is as per the physicalfile and no page is missing.

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Tribunal has reversed the findings of the Additional Rent Controllerwho had dismissed the petition of the petitioner (respondent herein)filed tinder Section 14(l)(b)(d)(h) of the Delhi Rent Control Act, 1958

(for short 'Act').

2. Brief facts of the case, as have been noted by the Tribunal, are as follows:

"The facts giving rise to the present appealare thattheappellantpreferredapetitionforevictionImpleading Smt. Tara Devi as tenant/respondentandHarbansLaiMehra(sincedeceased)assub/tenant/respondent.It wasclaimedin thepetition that the premises consisting of two rooms,one store iaslde the room on the grotmd floor andone room, one tin-shed kitchen on the first floor werelettothehusbandof Smt.TaraDevibythepredecessor ofthe appellant. One bathroom was alsoprovided later on.This letting was done on 1.3.51and a Memorandumwas executed by the tenant on11.3.51.The husband of respondentNo.l, namely,KanhayaLai (sincedeceased)was thus, the tenant ofthe appdlant at a monthly rental of Rs.86,45 p.m.iR^ch rent initial^ was Rs.82.50. The eviction of the sou^t on the asrespondent was followinggroundsstated in the petition - ~

18(a)(1) That the respondent No.l has sublet, assl^edor otherwise parted with thepossessionof apartof thetenantedpremises without obtaining the consent Inwritingofthe petitioner on or after 9^ dayof June, 1952.Shrl Kanhaya Lai Mehra isthe tenant w.e.f. 1.3.1951 and he had sublet, assigned or otherwise parted with thepossession of one room and one store inside IRC-SA27/2002]

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the room on the groimdfloor out of thetenantedpremisesto the respondentNo.2evenwithoutthe writtenconsentof thepetitioner's father as wdll as the petitionerat aigr time on or after 9.6.1952.

(i[)That the suit premises were let for use asa residenceand the respondentNo.l hasnot been residing therein for the last morethansix monthsimmediatelybeforethedate of filing the present petition.There isnoothermemberinthefamilyof therespondentNo.l as hr husband has alsopre-deceased her on 20.11.1983.On hisdeath, the respondent No.l has also shiftedfrom the tenantedprcanises and at presentshe has been residing in H.No.D-254, AshokVlhar, Phase-I, Delhi.

Theaforesaidpetitionwascontestedbytherespondent nO.2. Respondent No.2 filed the writenstatement in answer to the aforesaidparagraphsasfollows:

18(l)(i)That para No.18(1)® of tiie petitionis and is denied. It is Incorrect to wrong sayand allege that respondent No.l ever sublet,assigned or parted with possession of thepremises to this respondent.As alreadysubmitted and clarlfled this respondent is atenant In respect of the premises under thepetitioner ever since February, 1952. Thepetitioner has not turned dishonest.Hewanted this respondent to increase the renttoRs.75/-monthtowhichthisperrespondent refused point blank and hencethisfalse and frivolous petition against thisrespondenttakingbenefitofthe non-issueofrent receipts.(ii) Para No. 18(a)(ll) of the petition is wrongand denied.It is Incorrect that the premiseswere let out for residentialpurposesalone.

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As a matter of fact, the premises were let outforresidentialcumcommercialpurposesand were always used for twin purposes andwere always used for twin purposes.Smt.TaraDevivacatedtheportionofthepremisesIn her tenancyto the petitionerafteracceptinga handsomepugreefromhim. She has colluded with Hie petitioner tocausehannandlosstothispetitioner.RespondentNo.lneverresidedintheportionof the propertyin possessionandocupationof this respondentor a tenant ofthe petitioner which portion has always beeninpossessionandoccupationofthisrespondent ever since February,1952.(iii) Para No.l18(a)(iii)of thepetitioniswrong and denied.It is however,correctthatrespondentNO.lhasvacatedherportionD^ch was in her actual possessionand occupationas a co-tenantto reside inAshok Vihar.This respondentcannot beevictedbecauseheisatenantof thepetitioner and there is no groiind of evictionavailable agjalnst him."

RespondentNo.l did not contest the petition.It isstated and also subsequently admitted in theevidence of the respondent N0.2 that the portion ofthetenantedaccommodationwhichwasinpossession of respondentNO.l was handed over tothe appellant. The eviction now is sought of theportion which is held by respondent No.2 accordingto the petition as a sub-tenant.

Parties led the evidenceand after consideringtheevidenceon record,the coiort below dismissedthepetition on all the grounds."

3. The Tribunal, while adjudicating upon the matter, held IRC-SA.27/20021

that Ex. AW-1/1 was the documentwhich could be looked at forcollateral purpose inasmuch as the premises In question was let outin the year 1951 to one Kanhaiya Lai and, further relying upon Ex.AW-2/4,heldthattherespondent(appellantherein)wasinpossession of a portion of the premises let out to Kanhaiya Lai and,therefore,a case under Section 14(l)(d) of the Act is made out.

4. It is contended by coimsel for the appellant herein that theTribimal went wrong in placing reliance on Ex. AW-1/1 when thedocument did not inspire confidence inasmuch as the stamp paperdid not bear the seal as "vrasrequired under the Rules framed in thisregard. Coimsel also contends that if Ex. AW-1/1 is removed firomthe file of the case, there is no evidence on record to surest that theappellant was a sub-tenant and/or had obtained possession of thepremises in question from anyone other than firom the landlord own(respondentherein) himselfbeing a tenant in hisright. Counselalso contendsthat it is the case of the appellantthat he was inpossession of the suit premises since 1952 and even if there hasbeen any parting with possession/sub-letting, no suit imder Section woxild lie as14(l)(d) of the Act the same would be barred bylimitation.On the other hand, coxmsel for the respondent-landlordIsubmits that in second appeal the scope of inquiry by the Hi^ Court[RC-SA27/20021[page5 of9]

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is limited and correctnessof facts cannot be gone into.He alsocontends that there is no substantialquestion of law that requiresadjudicationbesidescontendingthat from the materialon record,namely,Ex.AW-1/1,AW-2/3and AW-2/4,thereissuflicientevidence to show that the appellant came into possession somewhereIn 1974 ^en he filed an affidavit to get an dectrlc connectionfromDESU for the premises in question.

5. I have heard counselfor the parties and consideredthematerial placed on record as also gone througih the Judgment tmderchallenge. There ,is no gaisaying that the scope of the inquiry insecond appeal is limited, as has been held by the Supreme Court inVeraveeAmmal vs. Seeni Ammal.AIR 2001 SC 2920, where theSupreme Coiirt bias affirmed its earlierJudgment in Paras NathThakur vs. Smt.MohaniDasifdeceasedlAIR 1959 SC 1204,asunder:

It is well settled by a long series of decisions of theJudicial Comnritteeof the Privy Council and of thisCourt, that a Hi^ Court, on second appeal, cannotgo into questionsof fact,however,erroneousthefindings of fact recorded by the Courts of fact maybe.It is not necessarytocite thosedecisionsindeed,thelearnedCounselfortheplaintifi-respondentsdid not and could not contend that theHi^ Courtwas competentto go behindthe findingsof fact concurrentlyrecordedby the two Courts of IRC-SA 27/20021

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Coun^l also reliedupon anotherJudgmentofthe Supreme CourtInKondiba Dagabu Kadam vs. Savitribai Sopan GuiarOrs .TT 1999(3)SC 163, where the Court has held as under:

"5.It Is not within the domain of the HighCourtto investigatethegroundson laiilchthefindlngis were arrived at, by the last court of fact,being the first appellatecourt.It Istrue that thelower appellate court should not ordinarily rejectwitnesses accepted by the trial court in respect ofcredibility buteven ^ereIt hasrejectedthewitnesses accepted by the trial court, the same is noground for Interference In second appeal when it isfoundthat the appellatecourthas ^vensatisfactoryreasons for doing so. In a case where from a ^venset of cdrcumstancestwo Inferracesarepossible,one drawn by thelower appellate court is bindingon the High Court in second appeal. Adopting anyother approach is not permissible.The HI^ Courtcannot substituteIts opinion for the opinion of thefirstappellatecourt unlessit is foundthat theconclusionsdrawn by thelower appellatecourtwere erroneousbeingcontraryto the mandatoryprovisions of law applicable or its settied position onthe basisof pronouncementsmade by the apexcourt or was based upon inadmissibleevidence orarrived at without evidence."

6. However, since the Tribimal has reversed the findingsofthe trial court,I have once again gone througjh the materialonrecord.It is nobody's case before me that Ex. AW-1/1 does not bearthe signaturesof Kanhaiya Lai and the landlord-respondent.It also (RC-SA27/20021

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appears that this dociamentwas drawn up In 1951.There couldhardly be any Intention or reason at that point of time to draw up adefective documentonly to evict a prospectivesub-tenant.Evenotherwise,Ex. AW^-l/l and AW-1/2 are documents which establishthe extent of accommodationwith Kanhaiya Lai and the appellantfinds no mention as being a tenant In the premises.

7. There is materialon record to show that the premises inquestion was let out to Kanhaiya Lai.If, in defence, the appellant-tenant puts up a case that he has been a tenant in the premises inquestion since 1952, It was forhim to establish the same.Theonly document on record, besides the oral testimony. Is the affidavitof the appellant-tenantseeking an electricity cormectlon for thepremises in vMch he Is residing. This must necessarily mean thatfrom 1952 to 1975, there was no electricity in the room in question.There Is also no ration card, no electoral roll showing the appellantto be residing in the premises la question or any other documentmuchless rent receipt or rent note.

8. On the totality of the material on record, the landlord-respondent has been able to establish that KanhaiyaLai was histenant In the premises in question and the appellant has come into[RC-SA27/20021(page8 of9|

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possessionto the exdu^on of Kanhalya Lai.Further the appellanthas sou^t to perpetuate his possessionas an Independenttenant,he had to prove this fact.Since there is nothing on record to showthat the appellant was a tenant in his own rl^t and there is materialon record to show that the premises, which is in possessionof the,appellant-tenant,was in possession of Kanhaiya Lai as tenant, I seeno reason to take a different view from thatof the Tribimal.In thisview of the matter, RC-SA 27 of 2002 and C.M. Appl. 116/2002 aredismi^ed.No order as to costs.

[R3.'S0D:Judge.

November 30, 2004.Jt.

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