Citation Codes

Equivalent Citations

citation codes

Case Number

S.A.O Nos. 206 of 1982 and 97 of 1982

Advocates

R.S.Oberoi
Devi Dayal
Pushpa Devi
I.D.Garg

Judges

G. C. Jain, J.

Acts

Section 100 of the Code of Civil Procedure
Sub-Section (2) of Section 39

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Smart Summary

Summary of Opinion — G.C. Jain, J.

Factual and Procedural Background

These two appeals arise from a common judgment of the Rent Control Tribunal dated 16 February 1982 and concern adjacent shops bearing municipal No. 725/1, Jheel Kurenja, Patparganj Road, Delhi.

SAO 206/82 (Behari Lal v. Pushpa Devi): On 16 November 1973 Behari Lal applied for recovery of possession of a shop (18 ft × 19 ft). He alleged the shop was let to Smt. Pushpa Devi on 1 June 1971 at Rs.125 per month and that she had sub-let or otherwise parted with possession to Devi Dayal without his written consent. Pushpa Devi was proceeded against ex parte; Devi Dayal resisted the petition asserting that the land belonged to DDA, that he had constructed the shop and was in possession as owner. The Additional Controller and the Tribunal found that the landlord–tenant relationship between Behari Lal and Pushpa Devi was not proved and dismissed the claim. During the appeal Pushpa Devi sought permission to produce certain receipts and a partnership deed (CM 2899/82); the court found that application malafide.

SAO 97/82 (Devi Dayal v. Behari Lal): On 7 December 1973 Behari Lal applied for eviction of a separate shop (10 ft × 19 ft, adjoining the other) claiming he had let it to Devi Dayal in November 1970 at Rs.90 per month and that rent had not been paid since 8 March 1971. Devi Dayal's defence was that he was the owner, having constructed the shop on DDA land. The Additional Controller dismissed the application on 31 March 1978 (finding no landlord–tenant relationship). On appeal, the Rent Control Tribunal allowed Behari Lal's application to produce additional evidence (28 August 1980), recorded that evidence and concluded there was a landlord–tenant relationship, allowing eviction. The present appeal challenges the Tribunal's decision.

Legal Issues Presented

Whether the existence of a landlord–tenant relationship between the parties is a pure question of fact (and therefore not a ground for a second appeal under Section 39(2) unless a substantial question of law arises).
Whether the Rent Control Tribunal's findings (after admitting additional evidence) were based on evidence or were perverse/unsupported by evidence, permitting interference in a second appeal.
Whether the Tribunal properly exercised its discretion in allowing additional evidence and in drawing inferences from the documentary and oral material before it.

Arguments of the Parties

Behari Lal (appellant in SAO 206/82; respondent in SAO 97/82)

Claimed he had let the shops to the named occupants (Pushpa Devi in respect of one shop; Devi Dayal in respect of the other) on stated dates and rents and sought recovery of possession for unauthorized subletting/non-payment.
In the second appeal context, counsel for Behari Lal contended that whether a landlord–tenant relationship existed was a pure question of fact and therefore the second appeal raised no substantial question of law under Section 39(2).
Relied upon the principle in Mattulal v. Radhe Lal (1975 RCJ 86) that a second appeal does not permit re-appreciation of evidence and is limited to errors of law.

Devi Dayal (respondent in SAO 206/82; appellant in SAO 97/82)

Asserted that the land belonged to DDA, that he had constructed the shops and was in occupation as owner (denying any landlord–tenant relationship).
Challenged the Tribunal's decision (in SAO 97/82) on grounds that the Tribunal illegally allowed additional evidence, drew improper inferences, ignored material evidence of the appellant, and that the Tribunal's finding was based on no evidence and thus perverse.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mattulal v. Radhe Lal, 1975 RCJ 86	Affirms that in a second appeal the higher court cannot re-appreciate evidence; interference is limited to errors of law or findings that are based on no evidence or are perverse/unreasonable. Mixed questions of law and fact may be examinable.	The court accepted this legal principle as the correct starting point but applied it to the facts to conclude that the Tribunal's finding (that a landlord–tenant relationship existed) was unreasonable and perverse and therefore open to interference in second appeal.

Court's Reasoning and Analysis

The court proceeded in two distinct strands corresponding to the two appeals.

SAO 206/82 (Behari Lal v. Pushpa Devi): The court found no infirmity in the concurrent factual finding of the Additional Controller and the Tribunal that the landlord–tenant relationship had not been proved. Both parties gave oral evidence; the courts preferred the evidence contrary to Behari Lal's account. Behari Lal had admitted maintaining counter-foil receipts but did not produce them. The court also examined Pushpa Devi's application during the appeal to produce receipts and a partnership deed (CM 2899/82) and found that application malafide (noting prior litigation in which Behari Lal was her witness), concluding that the application was an attempt to improve Behari Lal's case and dismissing the appeal.

SAO 97/82 (Devi Dayal v. Behari Lal): The court first noted Section 39(2)'s requirement that a second appeal must involve a substantial question of law and acknowledged the settled proposition from Mattulal v. Radhe Lal that second appeals do not permit re-appreciation of evidence except where the finding is one of law, mixed law and fact, or is based on no evidence/is perverse.

Although the court did not examine the legality of the Tribunal's order admitting additional evidence, it explicitly found that the Tribunal's ultimate conclusion — that a landlord–tenant relationship existed — was unreasonable and perverse based on the totality of the evidence. The Tribunal had preferred Behari Lal because: (1) property tax assessment appeared in his name; (2) electricity connection(s) were in his name; (3) licences for cotton business/machinery were in his name; and (4) cash memos showed purchase of building materials.

The court examined each of these points and rejected them as insufficient corroboration:

The house tax assessment in Behari Lal's name did not establish it related specifically to the shop in dispute (there were nine shops at the property and the records did not show assessment for that particular shop); the only bill produced covered a period after the eviction petition and had no corroborative value.
The electricity connections cited were for premises No. 725/1 generally and, given Behari Lal's own averment that only a temporary connection existed for the shop in dispute, were likely for some other shop in the same property.
The licences (AAX and AAW 8/2) were for running cotton business in property No. 725/1 but were not shown to connect to the specific shop; the Tribunal overlooked that one licence was renewed up to March 1973 and did not coherently link the licence periods to the alleged tenancy starting in November 1970.
The cash memos for building materials did not establish they were for the construction of the particular shop in dispute.
Crucially, the Tribunal ignored evidence adduced by Devi Dayal (submissions and witness Sube Singh) that the shop had been registered in the name of Devi Dayal as proprietor in October 1967 — evidence which undermined Behari Lal's claimed title/possession and which the Tribunal failed to consider.

On this basis the court concluded the corroborative circumstances relied upon by the Tribunal did not, singly or collectively, support the Tribunal's preference for Behari Lal's oral evidence which it had described as self-serving. The Tribunal's finding was therefore held to be unsupported and perverse, justifying interference in the second appeal despite the general restriction on re-appreciation of evidence.

Holding and Implications

Holding:

SAO 206/82 (Behari Lal v. Pushpa Devi): Dismissed. The concurrent findings that landlord–tenant relationship was not proved were upheld.
SAO 97/82 (Devi Dayal v. Behari Lal): Allowed. The order of the Rent Control Tribunal was set aside and the order of the Additional Controller was restored.

Consequences: The Tribunal's eviction order in SAO 97/82 is quashed and the earlier dismissal by the Additional Controller is reinstated. The parties were directed to bear their own costs.

The opinion does not purport to lay down a new legal precedent beyond applying established principles (including the limits on interference in second appeals); rather it applies those principles to the specific evidential record and reverses a Tribunal finding found to be perverse and unsupported by evidence.

Order: As above — SAO 206/82 dismissed; SAO 97/82 allowed; Tribunal order set aside; Additional Controller's order restored; parties to bear own costs.

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Behari Lal /Landlord v. Pushpa Devi And Another

G.C Jain, J.—These two appeals arise out of a common judgment of the Rent Control Tribunal dated February 16, 1982. This order would dispose both these appeals SAO 206182 (Bohari Lal v. Pushpa Devi).

2. On November 16, 1973 Behari Lal brought an application for recovery of the possession of a shop measuring 18 ft. × 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/-. She had sub let, assigned or otherewise 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 Puspa Devi moved an application (CM 2899/82) of permission to produce receipts purported to have been issued by Behari Lal in her favour and also a partnership deed. It was averred that the shop had been takes on lease for running partnership business. She was an illiterate lady and could not prosecute her case before 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 cicrumstances 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.

SAO 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 × 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 had let out the said shop to Devi Dayal in November, 1970 on a monthly rent of Rs. 90/- and he had not paid or tendered-the rent which was due from March 8, 1971.

10. The defence 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, 1978.

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 landord and tenant between the parties and Behari Lal entitled to an 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 oh 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 a 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 a case 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 fact, the jurisdiction of the High Court would be barred and it would be beyond taken of 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 preverse.”

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 had 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 preverse.

17. The learned Tribunal in para 20 of his judgment obserevd 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 licence 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, could 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 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 1965-1975, i.e for the period after the institution) of eviction petition. This evidence had no corroborative value.

20. The clerk, Delhi Electricity Supply Undertaking, AW-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 those 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, therefore, 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 favour of Behari Lal for running cotton business in property N. 725/1. License AAX was issued in his favour on 26-5-69 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 upto March 1973. How could it relate to shop in dispute which was allegedly let out in November, 1970. The Tribunal totally over-looked 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 corrobration 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 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 conlcusion the appeal SAO 206/82 (Behari Lal v. Pushpa Devi) is dismissed. The appeal SAO 97/82 (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.

Order accordingly

Behari Lal /Landlord v. Pushpa Devi And Another

Summary of Opinion — G.C. Jain, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Behari Lal (appellant in SAO 206/82; respondent in SAO 97/82)

Devi Dayal (respondent in SAO 206/82; appellant in SAO 97/82)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Behari Lal /Landlord v. Pushpa Devi And Another

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