THROUGH LRS v. DECEASED THROUGH LRS

Through Mr. Suresh Gupta Adv. With Mr. Lalit Gupta, Advocates. CORAM: * HON'BLE MR. JUSTICE R.S. SODHI

1.WhetherReportersoflocalpapers may be allowedto see the Judgment?

2. To be referred to the Reporter or not? ^ 3. Whether the Judgment should be reported in the digest? JUDGMENT R.S.SODmJ:(ORAL)

1. RC-SA 27/2002 is directed a^inst Judgment and order dated 2.8.2002 of the Additional Rent Control Tribunal, Delhi, (for 'Tribunal,) in RCA NO. 980/1996 whereby the learned V (RC-SA27/20021 [page 1 of91 Signature Not Verified Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Tribunal has reversed the findings of the Additional Rent Controller who 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: preferred appellant a petition Lai Mehra (since It was to the husband "The facts giving rise to the present appeal are that eviction Impleading Smt. Tara Devi as tenant/respondent deceased) Harbans sub/tenant/respondent. claimed in the petition that the premises consisting of two rooms, one store iaslde the room on the grotmd floor and one room, one tin-shed kitchen on the first floor were of Smt. Tara Devi by the predecessor of the appellant. One bathroom was also provided later on. This letting was done on 1.3.51 and a Memorandum was executed by the tenant on 11.3.51. The husband of respondent No.l, namely, KanhayaLai (since deceased)was thus, the tenant of the appdlant at a monthly rental of Rs.86,45 p.m. iR^ch rent initial^ was Rs.82.50. The eviction of the respondent was sou^t on the following grounds as stated in the petition - ~ 18(a)(1) That the respondent No.l has sub let, assl^ed or otherwise parted with the possession of a part of the tenanted premises without obtaining the consent In writing of the petitioner on or after 9^ day of June, 1952. Shrl Kanhaya Lai Mehra is the tenant w.e.f. 1.3.1951 and he had sub let, assigned or otherwise parted with the possession of one room and one store inside IRC-SA27/2002] Ipage2 of9| ( ^ n the room on the groimd floor out of the to the respondent No.2 tenanted premises even without the written consent of the petitioner's father as wdll as the petitioner at aigr time on or after 9.6.1952. immediately (i[) That the suit premises were let for use as a residence and the respondent No.l has not been residing therein for the last more before the than six months date of filing the present petition. There is no other member respondent No.l as hr husband has also pre-deceased her on 20.11.1983. On his death, the respondent No.l has also shifted from the tenanted prcanises and at present she has been residing in H.No.D-254, Ashok Vlhar, Phase-I, Delhi. in the family of aforesaid petition was The respondent nO.2. Respondent No.2 filed the writen statement in answer to the aforesaid paragraphs as follows: contested 18(l)(i) That para No.18(1)® of tiie petition It is Incorrect to say is wrong and is denied. and allege that respondent No.l ever sublet, assigned or parted with possession of the premises to this respondent. As already is a submitted and clarlfled this respondent tenant In respect of the premises under the petitioner ever since February, 1952. The petitioner has not turned dishonest. He to increase the rent wanted this respondent to Rs.75/- to which respondent refused point blank and hence false and frivolous petition against respondenttakingbenefitof the non-issue of rent receipts. per month (ii) Para No. 18(a)(ll) of the petition is wrong and denied. that the premises were let out for residential purposes alone. It is Incorrect IRC-SA27/20021 (page3 of 91 portion vacated residential accepting cum commercial As a matter of fact, the premises were let out purposes and were always used for twin purposes and Smt. were always used for twin purposes. Tara Devi In her tenancy to the petitioner premises pugree from him. She has colluded with Hie petitioner cause hann and loss to this petitioner. in the Respondent No.l portion of the property in possession and ocupation of this respondent or a tenant of the petitioner which portion has always been in possession respondent ever since February, 1952. a handsome occupation resided It is however, 18(a)(iii) of the petition is (iii) Para No.l correct wrong and denied. respondent NO.l has vacated portionD^ch was in her actual possession to reside in and occupation as a co-tenant cannot be Ashok Vihar. evicted petitioner and there is no groiind of eviction available agjalnst him." This respondent because he is tenant a ^ f"^ tenanted the petition. Respondent No.l did not contest It is stated and also subsequently admitted in the evidence of the respondent N0.2 that the portion of possession of respondent NO.l was handed over to the appellant. The eviction now is sought of the portion which is held by respondent No.2 according to the petition as a sub-tenant. accommodation which was Parties led the evidence and after considering the evidence on record, the coiort below dismissed the petition on all the grounds."

3. The Tribunal, while adjudicating upon the matter, held IRC-SA.27/20021 Ipage4 of 9] that Ex. AW-1/1 was the document which could be looked at for collateral purpose inasmuch as the premises In question was let out in the year 1951 to one Kanhaiya Lai and, further relying upon Ex. AW-2/4, held that the respondent (appellant herein) was possession 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. •S3 O

4. It is contended by coimsel for the appellant herein that the Tribimal went wrong in placing reliance on Ex. AW-1/1 when the document did not inspire confidence inasmuch as the stamp paper did not bear the seal as "vras required under the Rules framed in this regard. Coimsel also contends that if Ex. AW-1/1 is removed firom the file of the case, there is no evidence on record to surest that the appellant was a sub-tenant and/or had obtained possession of the premises in question from anyone other than firom the landlord (respondentherein) himself being a tenant in his own right. Counsel also contends it is the case of the appellant that he was in possession of the suit premises since 1952 and even if there has been any parting with possession/sub-letting, no suit imder Section 14(l)(d) of the Act woxild lie as the same would be barred by limitation. On the other hand, coxmsel for the respondent-landlord I submits that in second appeal the scope of inquiry by the Hi^ Court [RC-SA27/20021 [page5 of 9] is limited and correctness of facts cannot be gone into. He also contends that there is no substantial question of law that requires adjudication besides contending that from the material on record, namely, Ex. AW-1/1, AW-2/3 and AW-2/4, there is suflicient evidence to show that the appellant came into possession somewhere In 1974 ^en he filed an affidavit to get an dectrlc connection from -'j; DESU for the premises in question.

5. I have heard counsel for the parties and considered the material placed on record as also gone througih the Judgment challenge. There , is no gaisaying that the scope of the inquiry in second appeal is limited, as has been held by the Supreme Court in Veravee Ammal vs. Seeni Ammal. AIR 2001 SC 2920, where the Supreme Coiirt bias affirmed its earlier Judgment in Paras Nath Thakur vs. Smt. Mohani Dasi fdeceasedl AIR 1959 SC 1204, as under: It is well settled by a long series of decisions of the Judicial Comnrittee of the Privy Council and of this that a Hi^ Court, on second appeal, cannot Court, go into questions of fact, however, findings of fact recorded by the Courts of fact may is not necessary to cite those decisions It be. indeed, plaintifi- respondents did not and could not contend that the Hi^ Courtwas competentto go behindthe findings of fact concurrently recorded by the two Courts of learned Counsel erroneous IRC-SA 27/20021 (page 6 of 91 i€. fact/ h Coun^l also relied upon another Judgment of the Supreme CourtIn Kondiba Dagabu Kadam vs. Savitribai Sopan Guiar Ors .TT 1999 (3) SC 163, where the Court has held as under: It It Is to investigate Is not within the domain of the High "5. Court the grounds on laiilch the findlngis were arrived at, by the last court of fact, true that the being the first appellate court. lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of rejected the credibility but even ^ere It has witnesses accepted by the trial court, the same is no ground for Interference In second appeal when it is found that the appellatecourthas ^ven satisfactory In a case where from a ^ven reasons for doing so. set of cdrcumstances possible, two Inferraces are one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The HI^ Court cannot substitute Its opinion for the opinion of the first appellate conclusions were erroneous being contrary to the mandatory provisions of law applicable or its settied position on the basis of pronouncements made by the apex court or was based upon inadmissible evidence or arrived at without evidence." lower appellate drawn by the is found that court unless

6. However, since the Tribimal has reversed the findings of the trial court, I have once again gone througjh the material on record. It is nobody's case before me that Ex. AW-1/1 does not bear the signatures of Kanhaiya Lai and the landlord-respondent. It also (RC-SA 27/20021 , (page 7 of 9] appears that this dociament was drawn up In 1951. There could hardly be any Intention or reason at that point of time to draw up a defective document only to evict a prospective sub-tenant. Even otherwise, Ex. AW^-l/l and AW-1/2 are documents which establish the extent of accommodation with Kanhaiya Lai and the appellant finds no mention as being a tenant In the premises.

7. There is material on record to show that the premises in question 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 in question since 1952, It was for him to establish the same. The only document on record, besides the oral testimony. Is the affidavit of the appellant-tenant seeking an electricity cormectlon for the premises in vMch he Is residing. This must necessarily mean that from 1952 to 1975, there was no electricity in the room in question. There Is also no ration card, no electoral roll showing the appellant to be residing in the premises la question or any other document muchless rent receipt or rent note.

8. On the totality of the material on record, the landlord- respondent has been able to establish that Kanhaiya Lai was his tenant In the premises in question and the appellant has come into [RC-SA27/20021 (page8 of 9| possession to the exdu^on of Kanhalya Lai. Further the appellant has sou^t to perpetuate his possession as an Independent tenant, he had to prove this fact. Since there is nothing on record to show that the appellant was a tenant in his own rl^t and there is material on record to show that the premises, which is in possession of the, appellant-tenant, was in possession of Kanhaiya Lai as tenant, I see no reason to take a different view from that of the Tribimal. In this view of the matter, RC-SA 27 of 2002 and C.M. Appl. 116/2002 are dismi^ed. No order as to costs. [R3.'S0D: Judge. November 30, 2004. Jt. . IRC-SA27/20021 ^